WASHINGTON -- A federal court of appeals, in a
victory for gun owners, ruled for the first time Tuesday that the 2nd
Amendment gives individuals a constitutional right to "privately possess
and bear their own firearms."
The decision, in a closely watched Texas case, contradicts a long line of
rulings that had dismissed the 2nd Amendment as archaic and insignificant.
These earlier decisions said the 18th-century amendment merely protected the
state's right to maintain a "well-regulated militia."
But the National Rifle Assn. and its lawyers have continued to insist that the
"right of the people to keep and bear arms" protects gun owners
today. They say that the authors of the Constitution intended the 2nd
Amendment's right to bear arms to stand on the same basis as the 1st
Amendment's rights to freedom of speech and religion.
Over the last decade, many legal scholars have taken a fresh look at the
history of the 2nd Amendment and come away agreeing with the NRA's basic view.
Tuesday, these gun advocates and historians finally won the endorsement of
legal opinion by a U.S. appellate court.
"We find that the history of the 2nd 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," wrote Judge William Garwood for the U.S. 5th Circuit Court of
Appeals.
The ruling is sure to bolster the claims of the NRA and others who say the
government cannot bar law-abiding citizens from having firearms. In the
District of Columbia, for example, it is generally illegal to own a handgun.
However, even gun-rights advocates concede that the right to bear arms, just
like the right to free speech, has its limits.
In the Texas case decided Tuesday, the judges who endorsed gun rights
nonetheless upheld a 1994 law that was used to take away a pistol from a
divorced Texas physician who was said to pose a "credible threat" to
his ex-wife.
In 1998, Dr. Timothy Joe Emerson was indicted for possessing a Beretta pistol
in violation of a judge's order. During divorce proceedings, his ex-wife
reported that when she went to his office, the doctor had pulled the gun from
his desk drawer.
Under a provision of the federal Violence Against Women Act, the judge was
authorized to issue an order requiring that the husband give up his personal
weapons until the divorce was final.
Emerson challenged the indictment and the judge's order as unconstitutional
because he had not committed a crime or engaged in violence. A federal judge
agreed with him, citing the 2nd Amendment.
That judge's decision sent the matter before the U.S. Court of Appeals, which
is based in New Orleans. Arguments on the question were heard more than a year
ago, and activists on both sides of the issue had been anxiously awaiting the
court's decision.
Garwood, an appointee of former President Ronald Reagan, was joined by Judge
Harold R. DeMoss Jr., an appointee of former President George Bush.
The third judge in the appeals case, Robert M. Parker, said his colleagues had
no need to opine on the meaning of the 2nd Amendment. They should have upheld
the indictment against Emerson and stopped there, he said in a partial
dissent. Parker was appointed by former President Bill Clinton.
Because of the mixed outcome, it is not certain the U.S. Supreme Court will
take up an appeal in the case.
The practical effect of Tuesday's ruling is also unclear. Gun-rights advocates
applauded the part of the opinion that breathed life into the 2nd Amendment,
while gun-control advocates took heart from the ruling that upheld a key part
of the Violence Against Women Act.
"This is ultimately a victory for us, because it says domestic abusers
don't have a right to have guns," said Mathew Nosanchuk, an attorney for
the Violence Policy Center, a gun-control group. "We think the final
score is, public safety one; gun lobby and domestic abusers zero."
UCLA law professor Eugene Volokh, who teaches the 2nd Amendment, applauded the
court's analysis of the right to bear arms. "This is the first time a
U.S. Court of Appeals has recognized that the 2nd Amendment secures an
individual right. This also makes it more likely the Supreme Court will have
to confront this issue soon," Volokh said.
In its history, the Supreme Court has said surprisingly little about the 2nd
Amendment. It states: "A well regulated militia, being necessary to the
security of a free State, the right of the people to keep and bear arms, shall
not be infringed."
In 1939, the justices upheld a federal indictment that charged two men with
carrying a sawed-off shotgun across state lines. In a brief opinion in the
case of U.S. vs. Miller, the high court rejected their claim based on the 2nd
Amendment and said this provision involved "well-regulated
militias," not gangsters and gun runners.
Since then, the Supreme Court has repeatedly turned away 2nd Amendment claims.
For that reason, most lawyers have come to view the amendment as essentially
meaningless.
Only Justice Clarence Thomas has called for taking a new look at the 2nd
Amendment, and Tuesday's ruling is likely to spur more appeals on the issue.
George Mason University law professor Daniel D. Polsby said the 5th Circuit's
ruling will probably be used to attack laws in several communities that forbid
residents from legally owning handguns. It may even spur new challenges to the
Brady Act, which sets a waiting period for new buyers of handguns.
"I'm not surprised by this. I had thought it was perfectly clear that the
2nd Amendment creates an individual right," said Polsby, who has written
extensively on its history. "But I also think it does not preclude
reasonable regulation of firearms."