Subject: Kopel/Reynolds On Emerson (NAtRev/Sam Cohen).

http://www.nationalreview.com/kopel/kopel102501.shtml

A Right of the People

The meaning of the Emerson decision.

By David Kopel, research director, Independence Institute & Glenn

Reynolds, law professor, University of Tennessee & writer for

InstaPundit.Com.

October 25, 2001 2:10 p.m.

Last week, the United States Court of Appeals for the Fifth Circuit

released a decision that, in ordinary times, would have gotten a lot of

attention. The decision, United States v. Emerson, recognized that the

Second Amendment to the U.S. Constitution guarantees individual citizens

a right to own guns.

It might seem surprising that such a decision would be controversial;

polls routinely indicate that a large majority of citizens believe they

have a constitutional right to own a gun, and the language of the Second

Amendment itself would seem to support that belief. Yet, in the second

half of the 20th Century, the notion of a right to arms under the Second

Amendment got little respect among the chattering classes.

In the 1960s and 1970s, we were often told that the Second Amendment

didn’t protect a right of individuals to own guns, but rather only a

“collective right” of the states to have militias – or “state armies,”

as retired Chief Justice Warren Burger called them in a Parade magazine

article often quoted by gun-control enthusiasts. Like collective

property in a Communist country, the “collective” Second Amendment right

belonged to everyone at once in theory, but to only the government in

practice, and thus was a nullity – the opposite of a genuine right.

If you disagreed with the “collective right,” you were said to be either

the victim or perpetrator of a fraud, something cooked up by zealots at

the National Rifle Association as a means of deluding the masses.

Informed people, we were told, knew better.

The 1939 Supreme Court case United States v. Miller, we were told, had

ruled that the Second Amendment only protected the National Guard. And

many lower federal courts said so too.

The problem with this is that it’s not true. Miller, in fact, doesn’t

even mention the National Guard, and offers, at most, extremely

ambiguous support for the “collective right.” By the 1990s, many

people – including leading legal scholars such as Laurence Tribe of

Harvard, William Van Alstyne of Duke, Sanford Levinson and Scot Powe of

the University of Texas, and Akhil Amar of Yale – began pointing this

out. Professor Brannon Denning of Southern Illinois University unpacked

the many lower-court cases and discovered they didn’t actually follow

Miller at all, and often claimed that the Supreme Court had said things

that, in fact, it never did.

Though there have been a few scholarly efforts to counter the academic

individual-rights view, they have fared poorly – particularly since

their most famous star, Michael Bellesiles’s Arming America, has been

exposed as a hoax. If you read Bellesiles’s footnotes, you discover that

his sources often do not support his claims, and in fact frequently

contradict his thesis. National Review’s Melissa Seckora discovered that

Bellesiles claimed to have examined 19th-century California probate

records which had actually been destroyed in the 1906 San Francisco

earthquake.

So by the time the Emerson case reached the Fifth Circuit, the stage had

been set for some serious rethinking. The court reviewed Miller and

found that, while the case was not entirely clear (UCLA law professor

Eugene Volokh teaches it as a model of ambiguity), Miller was at the

very least consistent with an individual right, and certainly did not

stand for a collective right.

The Fifth Circuit reviewed the academic writing on the Second Amendment

and found that the work of the scholars mentioned above (and others)

supported the Second Amendment individual right. The court reviewed the

many decisions of lower federal courts and essentially agreed with

Professor Denning that their reasoning was flawed, superficial, and

unpersuasive.

The Fifth Circuit concluded:

We reject the collective rights and sophisticated collective rights

models for interpreting the Second Amendment. We hold, consistent with

Miller, that it protects the right of individuals, including those not

then actually a member of any militia or engaged in active military

service or training, to privately possess and bear their own firearms,

such as the pistol involved here, that are suitable as personal,

individual weapons and are not of the general kind or type excluded by

Miller.

The Fifth Circuit did hold, however, that Dr. Emerson’s Second Amendment

rights had not been violated. He had been disarmed by a combination of a

federal law and a state law, which (in the court’s opinion) worked

together to prove that he posed a distinct threat of domestic violence.

Focusing on this result, Violence Policy Center tried to spin the

decision as a victory for gun control. The VPC celebrated the court

upholding the particular gun law from a facial challenge (even though

the majority said that other persons, based on their particular

circumstances, might be able to prevail on a constitutional challenge).

The VPC press release concluded that “Justice Department prosecutors

then appealed the trial court’s decision {finding the particular gun law

facially unconstitutional}, stating that it directly conflicted with

long-established legal precedent regarding the Second Amendment laid

down by the U.S. Supreme Court in United States v. Miller [307 U.S. 174

(1939)] as well as the language of the Second Amendment itself, which

speaks in terms of a limited right to keep and bear arms in connection

with service in a state militia.” The VPC does not mention that the

Fifth Circuit wrote 84 pages explaining why law-abiding, nonviolent

citizens (not only those in “service in a state militia”) have a Second

Amendment right to own handguns, rifles, and shotguns. If the Emerson

decision counts as a victory for gun control, then Second Amendment

supporters must hope for many more such Pyrrhic victories for the

Violence Policy Center.

In contrast, the Brady Center had the intellectual honesty to criticize

the Fifth Circuit’s opinion, rather than pretending that a vigorous

defense of individual Second Amendment rights was good news for the

gun-control lobby.

Others have tried to spin the Court’s decision as mere “dicta” –

comments not related to its holding and hence possessed of no binding

authority – on the basis that the statute was not struck down. The

Court’s decision runs like this:

1. Emerson has Second Amendment rights, because all Americans have

individual Second Amendment rights.

2. The federal statute that says that persons subject to

domestic-violence restraining orders may not possess a gun is not – on

its face – a violation of the Second Amendment.

3. Applying the statute to Emerson, personally, almost violates the

Second Amendment, but is “barely” constitutional, the Fifth Circuit

ruled, because Texas courts do have sufficient due process and required

findings of fact in order to issue domestic-violence restraining orders.

Texas case law mandates that temporary restraining orders (like other

preliminary injunctions) must only issue when “the applicant is

threatened with an actual, irreparable injury.” The Texas Supreme Court

insists that “An injunction will not issue unless it is shown that the

respondent will engage in the activity enjoined.”

4. Therefore, Emerson may be prosecuted for violating the federal law

that prohibits gun possession by persons who are subject to state-court

domestic-violence restraining orders.

In a concurring opinion, Judge Parker wrote that the majority’s detailed

exposition of the Second Amendment individual right, while not

necessarily wrong, was irrelevant “dicta.” In other words, because the

statute (as applied to Emerson) didn’t violate the Second Amendment

anyway, it didn’t matter if there was an individual Second Amendment

right, and therefore the Court should not have discussed the Second

Amendment so extensively. In Parker’s view, the majority’s Second

Amendment analysis is not even binding law on future courts within the

Fifth Circuit (Texas, Louisiana, and Mississippi).

The majority opinion, however, specifically refuted Parker on this

point, and said that the Second Amendment ruling was very much part of

Emerson holding. Indeed, the Brady Center acknowledged that courts in

the Fifth Circuit would now adhere to individual Second Amendment

rights, although it also pointed out, quite correctly, that courts in

other Circuits do not have to. For example, a recent decision from the

Tenth Circuit (United States v. Haney, August 29, 2001) rejects an

individual Second Amendment right, as do decisions from several other

circuit courts in recent years.

But within the Fifth Circuit, Second Amendment rights are now the law of

the land. This is hardly the first time a court has spelled out a

binding rule of law without handing the challenger a victory. A good

example would be the 1979 Jackson v. Virginia (443 U.S. 307), where the

Supreme Court held that to satisfy due process, the state had to prove

every element of the crime beyond a reasonable doubt. The Court then

found that the state had actually done that in the case at hand, and

denied Jackson’s petition for habeas corpus relief. But the due-process

holding is considered just that, a holding, and is followed. Just

because Mr. Jackson, on the particular facts of his case, would lose

regardless of whether the due-process rule applied did not mean the

Court’s announcement of the due-process rule was dicta.

Dr. Emerson will very likely petition the full Fifth Circuit to rehear

his case en banc. (If the petition is granted, all judges on the circuit

would reexamine the case, rather than the three-judge panel which

decided the recent case. The Fifth Circuit is very closely divided

ideologically.) Eventually, Emerson might appeal to the Supreme Court,

though the Court is unlikely to be willing to take the case, since the

federal statute has not been declared unconstitutional.

What is clear, however, is that gun-control groups and their revisionist

“collective rights” theory have been dealt a major setback, beyond any

spin. As Michael Barone writes:

It will now be very hard – I would say impossible – for any

intellectually honest judge to rule that the Second Amendment means

nothing.

This setback comes on top of numerous defeats in their efforts to drive

gun manufacturers out of business through product-liability lawsuits,

the defeat (which even Democrats like Bill Clinton and Joe Lockhart

attribute to the gun issue) of Al Gore in the 2000 presidential

election, and their ongoing failure to win in the court of public

opinion.

As Barone adds: “It is increasingly clear that the gun control advocates

cannot produce the safety they promise. . . . A meek, disarmed citizenry

is less safe than a proud, armed citizenry.” At a time when airline

pilots are threatening to strike unless they are permitted to carry

guns, the notion of sensible gun rights appears especially appealing.

Many supporters of Second Amendment rights would have preferred that the

Fifth Circuit adopt an even more protective view of Second Amendment

rights, and void the federal statute because it did not explicitly

require that the restraining order be based on findings of

dangerousness. Instead, the Fifth Circuit ruled that, in Emerson’s case,

Texas law implicitly required such findings, and that was good enough.

Yet because the poorly drafted federal statute was upheld, the result

should be reassuring to the large majority of Americans who support both

Second Amendment rights and some gun controls. Gun-prohibition advocates

have long warned that recognizing an individual Second Amendment right

would prevent governments from disarming convicted violent felons, or

would create a right to own nuclear weapons or bazookas. Most Second

Amendment advocates, on the other hand, have always noted that – just as

with other constitutional rights like free speech – the right to arms is

not absolute, and is subject to reasonable regulation.

People can differ in good faith about what constitutes reasonable

regulation. The Emerson decision, even if affirmed by the Supreme Court,

would not foreclose advocates of gun control (as opposed to gun

prohibition) from making a case in favor of laws to disarm people who

are provably dangerous. The Fifth Circuit noted that the Second

Amendment allows “limited, narrowly tailored specific exceptions or

restrictions for particular cases that are reasonable and not

inconsistent with the right of Americans generally to individually keep

and bear their private arms as historically understood in this country.”

What Emerson does in some federal courts for federal laws – as the state

constitutions of all but a few states already do, in state courts, for

state laws – is make it clear that ordinary, law-abiding people cannot

be prohibited from owning ordinary rifles, shotguns, and handguns.