http://volokh.com/posts/1173482774.shtml
[Eugene Volokh, March 9, 2007 at 6:26pm
<http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#11734827
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The First Federal Appeals Court Decision to Recognize an Individual
Right to Bear Arms?
That was United States v. Emerson, a Fifth Circuit decision from a few
years ago, which got plenty of press. But apparently that decision
somehow vanished in time for the New York Times' coverage of the D.C.
Circuit decision recognizing an individual right to bear arms. The Times
Web site front page blurbs the article as:
The decision today was the first from a federal appeals court to
hold that the Constitution gives individuals, not just state militias,
the right to bear arms.
Now these short blurbs are necessarily oversimplifications, and
sometimes err. But here it largely echoes the article
<http://www.nytimes.com/2007/03/09/washington/09cnd-gun.html?_r=1&hp&ore
f=slogin> , which begins:
A federal appeals court in Washington today struck down on
Second Amendment grounds a gun control law in the District of Columbia
that bars residents from keeping handguns in their homes.
The court relied on a constitutional interpretation that has
been rejected by nine federal appeals courts around the nation. The
decision was the first from a federal appeals court to hold a
gun-control law unconstitutional on the ground that the Second Amendment
protects the rights of individuals, as opposed to a collective right of
state militias.
But if you think the circuit headcount is important enough to mention in
the second sentence, shouldn't you mention that the D.C. Circuit's
constitutional interpretation had been accepted by one other federal
appeals court? True, that earlier decision upheld the gun control law
despite its conclusion that the Second Amendment protects the rights of
individuals, as opposed to a collective right of state militias. Still,
the paragraph makes it sound like the individual rights theory was
entirely unprecedented, which it certainly is not.
After all, wouldn't you interpret "has been rejected by nine federal
appeals courts" as a statement that the theory has been rejected by nine
and accepted by none, as opposed to that it has been rejected by nine
and accepted by some unspecified number? And if reasonable readers would
do that, shouldn't the Times try to avoid misleading them this way?
Either don't do the head count, or state it completely.
In the very last paragraph, the article does say that "Most federal
appeals courts have said that the amendment, read as a whole, protects
only a collective right of the states to maintain militias - in modern
terms, the National Guard." That might seem like a (belated)
acknowledgment that not all federal appeals courts that had considered
the issue had adopted the collective rights theory, even before this
decision. Even on its own, though, it is both belated and ambiguous -
given what the article had said earlier, "most" might well be read as
meaning "all but this one."
But what that sentence might possibly give in terms of clearing things
up, the very next sentence (the last sentence in the piece) takes away,
repeating and exacerbating the problem in the second paragraph and in
the blurb:
But in yesterday's decision, the majority focused on the second
clause, saying that the amendment broadly protects the rights of
individuals to own guns - an approach that has been embraced by the
Justice Department and by some constitutional scholars.
Doesn't that last clause implicitly assert that the Justice Department
and some constitutional scholars are the most authoritative bodies to
adopt the individual rights view, and implicitly suggest that the view
hadn't been accepted by courts? Again, wouldn't it have been less
misleading to say "an approach that has been embraced by the Justice
Department, by some constitutional scholars, and by the United States
Court of Appeals for the Fifth Circuit"?
(If the Times really wanted to paint an accurate picture, it could also
have noted that the approach had been accepted the courts in several
states, which the D.C. Circuit majority expressly cited; but that might
not be well-known to legal journalists, even ones who write about the
Second Amendment - the existence of the Emerson Fifth Circuit decision
should be well-known to such journalists.)
Thanks to Dan Schmutter for the pointer. (Note that I've reworded the
post since I first put it up, chiefly to make it more readable, but also
to note the front-page blurb, which I didn't at first see.)
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