-Caveat Lector-
08/27/99- Updated 12:35 AM ET
Case could shape future of gun
control
The Second Amendment establishes a right to
possess firearms. The question is: Is it an individual
right or a military necessity?
By Richard Willing, USA TODAY
A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep
and bear Arms, shall not be infringed. - Second
Amendment to the U.S. Constitution, 1791
Tucked inside this famous paragraph, amid the multiple
clauses, odd punctuation and 18th-century syntax, lies
the right that Americans both cherish and fear: the right
to have a gun.
But whose right is it anyway? Is there an individual right
to own a gun, like the individual right to freedom of
speech or religion? Or does the Second Amendment
mean only that Americans can defend themselves
collectively through state militias, like the modern-day
National Guard?
The debate over what the Second Amendment actually
means has filled a forest of law review articles and
scholarly papers over the past 10 years. Now it is about
to spill out of the ivory tower and into the real world of
guns and gun control.
For the first time, a federal judge has ruled that the
Second Amendment guarantees an individual's right to
own a gun. In the process, the judge invalidated a 1994
federal law that denies guns to anyone who is under a
restraining order to prevent him or her from harassing a
spouse. The law was part of a measure aimed at
reducing domestic violence by limiting access to guns.
If the decision by a federal district court judge last April
in Texas is upheld on appeal, it could be a huge setback
for gun control advocates, placing perhaps hundreds of
laws in danger of being struck down. And it would be a
victory for gun control opponents such as the National
Rifle Association, which has consistently argued that an
individual's right to a gun is protected by the Second
Amendment.
An appeal of the case, U.S. v. Emerson, begins with the
filing of briefs in the U.S. Court of Appeals for the Fifth
Circuit in New Orleans Friday.
The case, which is likely to be argued next January or
February, is unfolding as liberal scholars such as
Harvard's Laurence Tribe, who has long been hostile to
the individual-rights argument, have begun to move
toward the NRA's position.
"The real-world consequences (of the Texas case) could
be enormous," says Carl Bogus, a specialist on the
Second Amendment at Roger Williams Law School in
Bristol, R.I.
If the lower-court ruling is upheld, "it would stand the
law on its head," Bogus says. It would destroy Congress'
ability to create gun control laws. Anyone arrested under
current (gun control) laws could argue they're
unconstitutional. This is not just an academic exercise."
The renewed debate over the Second Amendment's
meaning comes as recent shootings in Atlanta, Los
Angeles and Littleton, Colo., have increased pressure
for new gun control laws. This week, authorities in Los
Angeles took the unprecedented step of banning sales of
guns from the nation's largest gun show.
The very fact that there is a debate is likely to surprise
many Americans, many of whom assume that the Second
Amendment already guarantees them the right to own a
gun. A CBS News poll Aug. 15 found that 48% of adults
believe there is an individual right to a gun, while 38%
do not.
Case began as domestic dispute
The case began last August when Sacha Emerson, 26, a
nurse from San Angelo, Texas, filed for divorce. The
local court placed a restraining order on her husband,
physician Timothy Joe Emerson, 41, after she
complained that he had verbally threatened her
boyfriend.
Timothy Emerson owned a handgun, which
automatically put him at odds with the federal law
barring gun ownership by people under state restraining
orders in domestic disputes. A federal grand jury
indicted Emerson, who was "greatly surprised" to learn
that he may have violated any law, according to his
lawyer, David Guinn.
The case never got to trial. In April, U.S. District Court
Judge Sam Cummings found that the law denying guns to
those under a restraining order was an unconstitutional
infringement of the "individual right to bear arms."
The federal law, Cummings wrote, "is unconstitutional
because it allows a state court divorce proceeding,
without particularized findings of the threat of future
violence, to automatically deprive a citizen of his
Second Amendment rights."
The decision took gun control advocates and opponents
by surprise. Cummings, 54, who was appointed to the
federal bench by President Reagan, had a reputation as a
middle-of-the-road jurist who seldom set aside an
indictment. And Emerson's lawyer, assistant federal
public defender David Guinn, had raised the Second
Amendment argument almost as an afterthought.
Both sides are taking the appeal very seriously. The
National Association of Criminal Defense Lawyers and
the NRA plan to file briefs supporting Emerson and his
argument that there is an individual right. A consortium
of 45 law professors and legal historians has filed on
behalf of the other side.
The solicitor general's office in Washington, which
handles appeals for the federal government, is helping
federal prosecutor William Mateja with his argument
that the domestic violence law should be upheld and the
indictment reinstated.
Amendment is open to interpretation
Arguments about the meaning of the Second Amendment
can be murky, because both sides rely on the
amendment's wording to reach radically different
conclusions.
Proponents of the theory that the Second Amendment
confers only a collective right to bear arms focus on the
mention of "militia" in the amendment's opening clause.
"Clearly, the reference to 'militia' is there for a reason,"
Bogus says. If the Amendment's drafters had "wanted an
individual right, they wouldn't have needed to qualify it.
That first (clause) is all-important. They're saying,
'Because there's a need for a militia, we're bringing up
the subject of arms.'"
These theorists say that history, too, is in their favor.
James Madison's original draft of the Second
Amendment, the theorists note, exempted the "religiously
scrupulous" - conscientious objectors - from bearing
arms, indicating that the right protected only arms
related to militia service.
"If the Second Amendment had been adopted as
originally drafted by Madison, there'd be no question
that its scope is limited to the possession of weapons for
use in the militia," says David Yassky, a Brooklyn Law
School professor who has filed a brief supporting the
collective view in the Texas case.
Supporters of the militia interpretation also say that to
accept an individual right to arms is to endorse anarchy.
"The Second Amendment can't mean that you have the
right to form a private army," says Dennis Henigan, legal
director of the Center to Prevent Handgun Violence.
"That's the logic of (Oklahoma City bomber) Timothy
McVeigh," Henigan says. The framers of the Constitution
"couldn't have intended to bestow a right to armed
insurrection. That would have destroyed what they were
trying to build."
Those who advocate the right of the individual to bear
arms say their adversaries are misreading the Second
Amendment.
"You've got to understand: The militia at the time (the
amendment) was written was basically all able-bodied
men," says Stephen Halbrook, a lawyer in Fairfax, Va.,
who has filed a pro-gun-rights brief in the Texas case.
When the framers "are talking about the 'militia,' they are
talking about the 'people.' They'd be shocked if anybody
thought they meant something different."
Both sides say history supports them
Those in the individual-rights group also say history
supports them, not their opponents.
"When the amendment was written and through most of
the 19th century and into the 20th, it was assumed that
the individual right (to a weapon) existed," says Robert
Cottrol, a Second Amendment specialist at George
Washington University law school and author of Gun
Control and the Constitution.
"It wasn't until federal (gun control) laws were enacted,
during Prohibition and later during the 1960s, that it
even became an issue."
Akhil Reed Amar, a Yale University law professor and
scholar of the Bill of Rights, says the right is neither
collective nor individual but something in between: the
right of a small community of family and friends to
defend their homes, as the Minutemen had done during
the American Revolution.
"They weren't thinking of establishing a right for the
National Guard or for the Michigan militia," Amar says.
"They were thinking about Lexington and Concord,
where they stood with their families and friends to resist
an imperial army. If you get Lexington and Concord, you
get the Second Amendment."
America's courts have had little to say about the debate.
When they have weighed in, it has been on the side of
those who says there's no individual right.
During Prohibition, Arkansas bootlegger Jack Miller
was indicted under the first national gun control law for
carrying a sawed-off shotgun across state lines.
Miller argued that the Second Amendment gave him the
right to carry the weapon and that the charge should be
dismissed. But the Supreme Court disagreed, saying in a
unanimous 1939 decision that the shotgun had no
"reasonable relationship to the preservation or
efficiency of a well-regulated militia" and was thus not
protected by the amendment.
U.S. v. Miller was the first and so far the only Supreme
Court case to address the issue. Since then, the U.S.
Courts of Appeal have used the case's reasoning to
uphold gun restrictions in at least 21 separate cases.
"As long as a (gun control) law exempts the National
Guard or police, it has passed muster," says Dennis
Henigan of the Center to Prevent Handgun Violence.
"The law has been all our way."
But liberal scholars, after backing the militia theorists
for years, have begun to side with individual-rights
proponents.
Sanford Levinson of the University of Texas law school
began the trend 10 years ago with an influential law
journal article that compared the Second Amendment to
an "embarrassing relative, whose mention brings a quick
change of subject."
"This will no longer do," Levinson wrote, concluding
that the individual-rights argument had a historical basis.
Others picked up on that argument.
"If you're going to look at (the Second Amendment)
fairly, you have conclude that it means a lot more than its
critics say," Amar of Yale says. "It's there in the middle
of the Bill of Rights for a reason."
In a striking departure, Harvard University's Tribe now
concludes that the Second Amendment guarantees more
than a militia right and includes an individual right to
own firearms. Tribe's new view is included in an
updated version of his treatise American Constitutional
Law, which is out this month.
"Some very serious scholars are concluding that it is too
simplistic to say that the Second Amendment only
protects the militia," Tribe says. "It's not just the 'hired
guns' for the NRA."
The stakes are large. If the Fifth Circuit upholds the
individual right to own guns, it would conflict with
decisions in other appeals courts over the years. This
probably would prompt a review by the U.S. Supreme
Court.
And if the individual-right theory is upheld there, state
and federal legislatures could have a much harder time
passing gun control laws. Current laws, too, would be
open to challenge. Courts probably would impose a
"balancing test" to determine whether a proposed gun
control law unduly restricts an individual's rights.
Essentially, courts would weigh the justification for the
gun control statute against the restriction imposed on the
individual citizen.
"To date, any restriction short of prohibition (of private
gun ownership) has been deemed acceptable by the
courts," George Washington University's Cottrol says.
"If a right is involved, presumably the whole picture
changes. Any law impacting on that right might have to
pass a much stricter test."
No one is making book on how the Fifth Circuit will
rule. Mateja says he'll argue that the militia rights view
is "well settled" in law and that Judge Cummings'
decision was "flat wrong."
Guinn says he'll fall back on the language of the Second
Amendment and its promise of the "right of the people to
keep and bear arms."
"The 'people' means the people," he says. "What else
could it mean?"
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