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Half a Win Is Better than None (The
Emerson 2nd Amendment Case)
by Sheldon Richman
Fans of the Second Amendment are rejoicing because a federal appellate court has
affirmed that the right to keep and bear arms belongs to individuals, not
collectives. Anyone who can read plain English already knew that. But now we
have a U.S. appellate court saying so. That can't hurt.
The October ruling of a three-judge panel from the Fifth Circuit Court of
Appeals grew out of the Texas case of Timothy Joe Emerson. Dr. Emerson was going
through a divorce and was subject to a temporary restraining order. Federal law
forbids anyone subject to a restraining order to have a firearm. He was charged
with violating that federal law.
In 1998 Emerson challenged the law, and Federal District Court Judge Sam R.
Cummings declared it unconstitutional on grounds that Second Amendment rights
are too important to be abrogated by so casual a means as a "boilerplate"
restraining order in a divorce action. He also demonstrated that the amendment
applies to individuals, not state national guards. This set the stage for the
appellate ruling.
Two of the three appellate judges endorsed Judge Cummings's ruling that gun
rights are individual rights. They determined that the 1939 U.S. Supreme Court
case U.S. v. Miller, which the gun controllers depend on, fails to support the
collective-rights position. Miller in no way hinged on whether the defendants
were members of the national guard. In fact, the Supreme
Court noted that at the time of the framing of the Constitution the militia was
considered to consist of "all males physically capable of acting in concert for
the common defense."
Thus the appellate judges authoritatively pulled away a key pillar of the gun
controllers' case. The Supreme Court has never held that the right to keep and
bear arms is something other than an individual right. Further, the appellate
court disposed of the argument that the amendment's preamble, "A
well-regulated militia being necessary to the security of a free state," implies
a collective right. They pointed out that the preamble is fully consistent with
the individual-rights interpretation.
The Fifth Circuit appellate judges followed up this logical argument by delving
into the historical record and concluded: "We find that the history of the
Second Amendment reinforces the plain meaning of its text, namely that it
protects individual Americans in their right to keep and bear arms whether or
not they are a member of a select militia or performing active
military service or training."
At this point, the judges' opinion takes a wrong turn; for while they find that
the Second Amendment sanctions an individual right, they go on to state that the
federal law at issue -- forbidding people subject to restraining orders to
possess guns -- is a reasonable limitation on that right. The statute does not
violate the Second Amendment, they said, because before
issuing a restraining order, a court has to be convinced of a "presently
existing actual threat" and the presence of such a threat justifies reasonable
restrictions on the right to bear arms. They were satisfied that the judge who
issued the restraining order had grounds to be so convinced, even though he made
no express findings to that effect and even though none are required by the
federal statute. It is enough, the judges said, that the statute requires a
hearing on the restraining order and that the order explicitly forbids the use
or threat of force. They reinstated the indictment. Emerson will have to stand
trial, unless his planned appeal to the U.S. Supreme Court succeeds.
Thus the victory for Second Amendment rights is mixed. It may seem reasonable to
restrict the gun rights of someone who is alleged to be dangerous, but it is
that principle that is in fact dangerous. Emerson was tried under state law for
allegedly threatening behavior -- and was acquitted. That being the case, his
right to keep and bear arms should be unaffected. On the other hand, had he been
convicted, he should have been
sent to jail, where he would have been unable to have a gun. As the law now
stands in the Fifth Circuit, American citizens can be relegated to a
netherworld, neither convicted of a crime nor free to fully exercise their
rights.
Sheldon Richman is senior fellow at The Future of Freedom Foundation (www.fff.org)
in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State,
and editor of Ideas on Liberty magazine.
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