http://www.austin360.com/statesman/editions/today/editorial_2.html
The 5th U.S. Circuit Court of Appeals has the reputation of being a pretty conservative bunch. In fact, it is reputed to be one of the most conservative of the nation's federal appeals courts, which makes it an unlikely suspect for reaching deep into the Constitution, defying decades of well-settled law and turning a key provision of the Bill of Rights on its head.
That's exactly the radical step the court took last week, however, when it proclaimed that the Constitution's Second Amendment guarantees an individual the right to own firearms. The U.S. Supreme Court, final arbiter of such questions in our system, has consistently held otherwise, in a series of decisions reaching back more than a century. So has every other federal appeals court (including three decisions just this year).
Carl Bogus, a Roger Williams University law professor, has rightly observed that "if there is such a thing as settled constitutional law, the Second Amendment is the quintessential example." From as far back as 1876, the Supreme Court has held again and again that the 18th century framers of the Second Amendment intended it as a guarantee that states could establish and arm their state militias free of interference from the national government. The brief but controversial amendment, the high court has repeatedly said, has never had anything to do with an individual's right to own a firearm.
That consistent record didn't stop the new-minted radicals of the 5th Circuit. In the particularly distasteful case of U.S. v. Emerson, involving the right of a domestic abuser to have his guns back, a panel of the court held on a 2-1 vote that the Second Amendment "protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia."
This unprecedented view, the first by a federal appeals court, caps a 30-year campaign by the nation's gun lobby to overturn the Supreme Court's long-established interpretation of the amendment -- not in court, but in law reviews. The National Rifle Association and other pro-gun groups have financed the writings of dozens of legal scholars willing to find an individual right of gun ownership in the amendment, and earlier this year Attorney General John Ashcroft's Justice Department suggested it was ready to join the party as well.
Despite the revolutionary nature of the 5th Circuit Court's decision, the judges admittedly held that its newfound right is not absolute, and that the states and federal government still might have some leeway to regulate gun ownership.
That's not likely to be the direction now taken by the gun lobby, of course. Pro-gun interests have already expressed eagerness to use the Emerson decision to challenge gun laws across the country, as though a nation that already has nearly 200 million guns might run the risk of being insufficiently awash in firearms.
The Supreme Court, of course, could review the Emerson case, but unfortunately the high court could not reverse the circuit court's Second-Amendment pronouncement, because it was not necessary to deciding the case. That's a shame, because the cloud of uncertainty stirred up by the circuit court could really only be cleared by the Supreme Court re-asserting its remarkably well-settled view of this particular law.