Originally published as:
2nd Amendment Victory
People really do have a right to keep and bear arms!
By Kathryn Jean Lopez, NRO executive editor
October 18, 2001 9:20 a.m.
http://www.nationalreview.com/interrogatory/interrogatory101801.shtml
Nelson Lund is a professor of law at the George Mason University School of Law.
Kathryn Jean Lopez: Is the 5th
U.S. Circuit Court of Appeals decision on Tuesday a win or blow to the 2nd
Amendment?
Nelson Lund: This is the most important and favorable Second Amendment
judicial decision in American history. For the first time, a federal court of
appeals has unambiguously held that the right to keep and bear arms belongs to
individual citizens, and rejected the preposterous but judicially regnant theory
that Second Amendment rights belong to governments or can only be exercised in
the service of a government.
Lopez: Should a restraining order like the one in this case, against and
ex-husband, be sufficient "to support the deprivation ... of the
defendant's Second Amendment rights"?
Lund: The court held that such state-court restraining orders can justify
disarming someone only when state law requires the order to be based on a
real threat of lawless violence.
Lopez: Are there any circumstances that would legally deprive a citizen
of his Second Amendment rights?
Lund: There are lots of situations in
which citizens can be deprived of their right to arms, most obviously when the
individual involved poses an especially acute threat to the safety of others, as
with a violent felon or a person who is mentally ill.
Lopez: Will this ruling likely find its way to the Supreme Court?
Lund: It is
unlikely that the Supreme Court will agree to review the case. The Fifth
Circuit's decision marked a very sharp break with precedent in the other courts
of appeals, and the Supreme Court will probably want to see whether or not other
lower courts adopt the Fifth Circuit's approach.
Lopez: Do you expect that our post-911 nation will likely dramatically
reconsider its view of the 2nd Amendment?
Lund: The repeated failure of the "gun-free zone" concept, most recently on September 11, has made it increasingly difficult for people to argue with a straight face that our Second Amendment rights are an outmoded relic of the past. Attorney General Ashcroft, and now one federal court of appeals, have recognized that the right of individuals to keep and bear arms does exist. But this is mostly a matter of government officials catching up with what much of the nation already believed.