A Right of the People

The meaning of the Emerson decision.

By David Kopel, research director, Independence Institute & Glenn Reynolds, law professor, University of Tennessee & writer for InstaPundit.Com.

National Review Online. October 25, 2001 2:10 p.m. More by Kopel on the Emerson case, including his amicus brief

Last week, the United States Court of Appeals for the Fifth Circuit released a decision that, in ordinary times, would have gotten a lot of attention. The decision, United States v. Emerson, recognized that the Second Amendment to the U.S. Constitution guarantees individual citizens a right to own guns.

It might seem surprising that such a decision would be controversial; polls routinely indicate that a large majority of citizens believe they have a constitutional right to own a gun, and the language of the Second Amendment itself would seem to support that belief. Yet, in the second half of the 20th Century, the notion of a right to arms under the Second Amendment got little respect among the chattering classes.

In the 1960s and 1970s, we were often told that the Second Amendment didn't protect a right of individuals to own guns, but rather only a "collective right" of the states to have militias — or "state armies," as retired Chief Justice Warren Burger called them in a Parade magazine article often quoted by gun-control enthusiasts. Like collective property in a Communist country, the "collective" Second Amendment right belonged to everyone at once in theory, but to only the government in practice, and thus was a nullity — the opposite of a genuine right.

If you disagreed with the "collective right," you were said to be either the victim or perpetrator of a fraud, something cooked up by zealots at the National Rifle Association as a means of deluding the masses. Informed people, we were told, knew better.

The 1939 Supreme Court case United States v. Miller, we were told, had ruled that the Second Amendment only protected the National Guard. And many lower federal courts said so too.

The problem with this is that it's not true. Miller, in fact, doesn't even mention the National Guard, and offers, at most, extremely ambiguous support for the "collective right." By the 1990s, many people — including leading legal scholars such as Laurence Tribe of Harvard, William Van Alstyne of Duke, Sanford Levinson and Scot Powe of the University of Texas, and Akhil Amar of Yale — began pointing this out. Professor Brannon Denning of Southern Illinois University unpacked the many lower-court cases and discovered they didn't actually follow Miller at all, and often claimed that the Supreme Court had said things that, in fact, it never did.

Though there have been a few scholarly efforts to counter the academic individual-rights view, they have fared poorly — particularly since their most famous star, Michael Bellesiles's Arming America, has been exposed as a hoax. If you read Bellesiles's footnotes, you discover that his sources often do not support his claims, and in fact frequently contradict his thesis. National Review's Melissa Seckora discovered that Bellesiles claimed to have examined 19th-century California probate records which had actually been destroyed in the 1906 San Francisco earthquake.

So by the time the Emerson case reached the Fifth Circuit, the stage had been set for some serious rethinking. The court reviewed Millerand found that, while the case was not entirely clear (UCLA law professor Eugene Volokh teaches it as a model of ambiguity), Miller was at the very least consistent with an individual right, and certainly did not stand for a collective right.

The Fifth Circuit reviewed the academic writing on the Second Amendment and found that the work of the scholars mentioned above (and others) supported the Second Amendment individual right. The court reviewed the many decisions of lower federal courts and essentially agreed with Professor Denning that their reasoning was flawed, superficial, and unpersuasive.

The Fifth Circuit concluded:

We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.

The Fifth Circuit did hold, however, that Dr. Emerson's Second Amendment rights had not been violated. He had been disarmed by a combination of a federal law and a state law, which (in the court's opinion) worked together to prove that he posed a distinct threat of domestic violence. Focusing on this result, Violence Policy Center tried to spin the decision as a victory for gun control. The VPC celebrated the court upholding the particular gun law from a facial challenge (even though the majority said that other persons, based on their particular circumstances, might be able to prevail on a constitutional challenge).

The VPC press release concluded that "Justice Department prosecutors then appealed the trial court's decision {finding the particular gun law facially unconstitutional}, stating that it directly conflicted with long-established legal precedent regarding the Second Amendment laid down by the U.S. Supreme Court in United States v. Miller[307 U.S. 174 (1939)] as well as the language of the Second Amendment itself, which speaks in terms of a limited right to keep and bear arms in connection with service in a state militia." The VPC does not mention that the Fifth Circuit wrote 84 pages explaining why law-abiding, nonviolent citizens (not only those in "service in a state militia") have a Second Amendment right to own handguns, rifles, and shotguns. If the Emerson decision counts as a victory for gun control, then Second Amendment supporters must hope for many more such Pyrrhic victories for the Violence Policy Center.

In contrast, the Brady Center had the intellectual honesty to criticize the Fifth Circuit's opinion, rather than pretending that a vigorous defense of individual Second Amendment rights was good news for the gun-control lobby.

Others have tried to spin the Court's decision as mere "dicta" — comments not related to its holding and hence possessed of no binding authority — on the basis that the statute was not struck down. The Court's decision runs like this:

1. Emerson has Second Amendment rights, because all Americans have individual Second Amendment rights.

2. The federal statute that says that persons subject to domestic-violence restraining orders may not possess a gun is not — on its face — a violation of the Second Amendment.

3. Applying the statute to Emerson, personally, almost violates the Second Amendment, but is "barely" constitutional, the Fifth Circuit ruled, because Texas courts do have sufficient due process and required findings of fact in order to issue domestic-violence restraining orders. Texas case law mandates that temporary restraining orders (like other preliminary injunctions) must only issue when "the applicant is threatened with an actual, irreparable injury." The Texas Supreme Court insists that "An injunction will not issue unless it is shown that the respondent will engage in the activity enjoined."

4. Therefore, Emerson may be prosecuted for violating the federal law that prohibits gun possession by persons who are subject to state-court domestic-violence restraining orders.

In a concurring opinion, Judge Parker wrote that the majority's detailed exposition of the Second Amendment individual right, while not necessarily wrong, was irrelevant "dicta." In other words, because the statute (as applied to Emerson) didn't violate the Second Amendment anyway, it didn't matter if there was an individual Second Amendment right, and therefore the Court should not have discussed the Second Amendment so extensively. In Parker's view, the majority's Second Amendment analysis is not even binding law on future courts within the Fifth Circuit (Texas, Louisiana, and Mississippi).

The majority opinion, however, specifically refuted Parker on this point, and said that the Second Amendment ruling was very much part of Emerson holding. Indeed, the Brady Center acknowledged that courts in the Fifth Circuit would now adhere to individual Second Amendment rights, although it also pointed out, quite correctly, that courts in other Circuits do not have to. For example, a recent decision from the Tenth Circuit (United States v. Haney, August 29, 2001) rejects an individual Second Amendment right, as do decisions from several other circuit courts in recent years.

But within the Fifth Circuit, Second Amendment rights are now the law of the land. This is hardly the first time a court has spelled out a binding rule of law without handing the challenger a victory. A good example would be the 1979 Jackson v. Virginia (443 U.S. 307), where the Supreme Court held that to satisfy due process, the state had to prove every element of the crime beyond a reasonable doubt. The Court then found that the state had actually done that in the case at hand, and denied Jackson's petition for habeas corpus relief. But the due-process holding is considered just that, a holding, and is followed. Just because Mr. Jackson, on the particular facts of his case, would lose regardless of whether the due-process rule applied did not mean the Court's announcement of the due-process rule was dicta.

Dr. Emerson will very likely petition the full Fifth Circuit to rehear his case en banc. (If the petition is granted, all judges on the circuit would reexamine the case, rather than the three-judge panel which decided the recent case. The Fifth Circuit is very closely divided ideologically.) Eventually, Emerson might appeal to the Supreme Court, though the Court is unlikely to be willing to take the case, since the federal statute has not been declared unconstitutional.

What is clear, however, is that gun-control groups and their revisionist "collective rights" theory have been dealt a major setback, beyond any spin. As Michael Barone writes:

It will now be very hard — I would say impossible — for any intellectually honest judge to rule that the Second Amendment means nothing.

This setback comes on top of numerous defeats in their efforts to drive gun manufacturers out of business through product-liability lawsuits, the defeat (which even Democrats like Bill Clinton and Joe Lockhart attribute to the gun issue) of Al Gore in the 2000 presidential election, and their ongoing failure to win in the court of public opinion.

As Barone adds: "It is increasingly clear that the gun control advocates cannot produce the safety they promise. . . . A meek, disarmed citizenry is less safe than a proud, armed citizenry." At a time when airline pilots are threatening to strike unless they are permitted to carry guns, the notion of sensible gun rights appears especially appealing.

Many supporters of Second Amendment rights would have preferred that the Fifth Circuit adopt an even more protective view of Second Amendment rights, and void the federal statute because it did not explicitly require that the restraining order be based on findings of dangerousness. Instead, the Fifth Circuit ruled that, in Emerson's case, Texas law implicitly required such findings, and that was good enough. Yet because the poorly drafted federal statute was upheld, the result should be reassuring to the large majority of Americans who support both Second Amendment rights and some gun controls. Gun-prohibition advocates have long warned that recognizing an individual Second Amendment right would prevent governments from disarming convicted violent felons, or would create a right to own nuclear weapons or bazookas. Most Second Amendment advocates, on the other hand, have always noted that — just as with other constitutional rights like free speech — the right to arms is not absolute, and is subject to reasonable regulation.

People can differ in good faith about what constitutes reasonable regulation. The Emerson decision, even if affirmed by the Supreme Court, would not foreclose advocates of gun control(as opposed to gun prohibition) from making a case in favor of laws to disarm people who are provably dangerous. The Fifth Circuit noted that the Second Amendment allows "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."

What Emerson does in some federal courts for federal laws — as the state constitutions of all but a few states already do, in state courts, for state laws — is make it clear that ordinary, law-abiding people cannot be prohibited from owning ordinary rifles, shotguns, and handguns.

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