Originally published as:
Unprecedented
Federal Court Decision On Gun Ownership
Published:
A federal appeals court ruled last week against a Texas physician's claim he had the right to own a pistol when subject to a domestic violence injunction.
A trial judge had ruled for Timothy Emerson, concluding that a law designed to protect women from the danger of assault or worse violated the doctor's right to keep and bear arms as prescribed by the Second Amendment.
At first glance, the Emerson case would appear to be a victory for gun control opponents, but in light of recent history and the conclusions of other appeals courts, the case is of far greater significance to gun-ownership advocates who have long argued that the Second Amendment guarantees an individual's right to own a gun.
In reversing the lower court, the 5th Circuit Court of Appeals panel spent the better part of 73 pages examining the history and debates surrounding the writing of the Bill of Rights and then explaining why the judges believe the amendment guarantees individuals - not only state militia members - the right to keep and bear arms.
The Second Amendment 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 other contexts, gun control groups have argued successfully on two fronts. One is that the amendment merely recognizes the right of a state to arm its militia. A more potent argument, and one recognized with increasing frequency by the courts, allows that an individual right does apply, but only to a member of a militia after the state or federal government fails to provide firearms.
As the 5th Circuit noted, this second argument would in effect allow for the wholesale disarmament of the civilian population. The judges refuted that contention and instead concluded that the Framers intended to extend through the Bill of Rights an individual right to bear arms.
``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,'' George Mason University law professor Nelson Lund told National Review Online.
The court's view seems to square with an opinion expressed by Attorney General John Ashcroft, who stunned gun control advocates by having the temerity to endorse that view in a letter to the National Rifle Association.
We have long argued that the Second Amendment grants an individual the right to own a gun, but we have never thought that right is without limits. Just as the First Amendment will not protect defamatory statements, neither does the Second Amendment guarantee unrestricted access to weapons.
The impact of the Emerson case is best set forth by Judge Robert M. Parker, who concurred in the result but viewed the Second Amendment inquiry as an interesting advisory treatise.
``No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined ... that the Second Amendment bestows an individual right. The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation.
``The debate, therefore, over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation.''
Our position exactly.