By Michael Barone
While most Americans were following events in Afghanistan and Capitol Hill last Tuesday, the United States Court of Appeals for the Fifth Circuit handed down a decision of historic importance on the Second Amendment, "the right of the people to keep and bear arms."
It has been the widely accepted view in the federal courts and among gun control advocates that the Second Amendment protects nothing at all. They have pointed to the words that precede those just quoted; the full amendment reads, "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." One theoryJudge Garwood in his opinion for the Fifth Circuit calls it the "states' rights" or "collective rights" theoryis that this just allows a state to arm its National Guard. Another theoryreferred to as the "sophisticated collective rights" theory by Garwoodis that National Guard members can keep arms only if the government fails to provide them. Under either theory, as Garwood puts it, "the Second Amendment poses no obstacle to the wholesale disarmament of the American people."
Both the collective-rights and the sophisticated collective-rights theories have been endorsed by other federal appeals courts. They have often cited the only U.S. Supreme Court case on the Second Amendment, United States v. Miller, decided in 1939, in which the panel ruled that a federal ban on sawed-off shotguns did not violate the Second Amendment. Gun control advocates and bien pensant opinion have usually taken for granted the assumption that the Second Amendment is meaningless.
Not so, ruled the Fifth Circuit in United States v. Emerson. The case involved a Texas man under a state court order not to threaten his wife during a divorce case. He was prosecuted under a federal law banning gun possession by people under such court orders. The trial court ruled that the federal law violated the Second Amendment. The Fifth Circuit reversed that decision. But in a lengthy opinion, it effectively refuted the "collective rights" and "sophisticated collective rights" theories and endorsed an "individual rights" theory. "The Second Amendment does protect individual rights," Garwood wrote, but "that does not mean that those rights may never be subject to any 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." The federal law in question, the court ruled, was such an exception, and so Emerson could be prosecuted.
As one judge on the three-judge panel pointed out, most of Garwood's opinion was technically dicta-words and arguments not essential to the outcome of the case. Whatever your view of the Second Amendment, you could find the federal law in question a reasonable exception to the Second Amendment. But the court's opinion is nonetheless well worth noting. For it summarizes serious recent scholarship on the Second Amendment, and it makes mincemeat of the "collective rights" and "sophisticated rights" theories adopted by other federal appeals courts. It will now be very hardI would say impossiblefor any intellectually honest judge to rule that the Second Amendment means nothing.
Garwood starts by reexamining United States v. Miller. There the Supreme Court adopted the view held by serious scholars (many of them gun control advocates) of the meaning of the word "militia" when the Second Amendment was adopted in 1790: "The Militia comprised all males physically capable of acting in concert for the common defense." When militia is so defined, it is clear that the amendment is not about the National Guard; it does not limit "the right of the people to bear arms."
Garwood goes over each word of the text of the amendment and examines the circumstances under which it was adopted. Here he draws on the scholarship of Sanford Levinson of the University of Texas, Eugene Volokh of the University of California-Los Angeles, William Van Alstyne of Duke University, Daniel Polsby of Northwestern University, and Glenn Harlan Reynolds of the University of Tennessee. Some are gun control opponents, but by no means all; Levinson, a gun control supporter, entitled one law review article "The Embarrassing Second Amendment."
It is interesting that such scholarship should come out of the academy. A generation ago, opinion there was near-unanimous that the Second Amendment meant nothing. The whole class of people from whom judges and law professors are drawn was overwhelmingly in favor of gun control and looked forward to the passage of laws that would effectively end private gun ownership, at least of non-hunting weapons. The idea is that the public would be safer in a gunless society. But at the same time, in the decade from 1965 to 1975, violent crimes nearly tripled in the United States, with very high crime rates in central cities with the nation's toughest gun control laws. Then states, starting with Florida in 1987, passed laws allowing law-abiding citizens to get licenses to carry concealed weapons without asserting any special reason. Yale economist John Lott, in his book More Guns, Less Crime, showed that those measures tended to reduce crime, and today 33 states, with more than half the nation's population, have them. It is increasingly clear that the gun control advocates cannot produce the safety they promise. The passengers and pilots of the three airliners that crashed into the World Trade Center towers and the Pentagon were unarmed and at the mercy of hijackers with box cutters. But at least five passengers on United 93, who knew from cellphone conversations what the hijackers' intentions were, decided to fight back. Now some airline pilots are demanding the right to carry guns and will probably get it. A meek, disarmed citizenry is less safe than a proud, armed citizenry.
The Fifth Circuit's opinion in Emerson does not determine how far the right to keep and bear arms goes. It recognizes that government can limit gun ownership from dangerous characters like Emerson himself and recognizes that the government can ban possession of certain weaponsthose more powerful than an ordinary soldier carries, for example. But the opinion makes an overwhelmingly strong argument that somewhere on the road between a ban on personal possession of nuclear weapons and a ban on personal possession of a rifle, the Second Amendment stands in the way. The Supreme Court will probably not hear this case. But it will surely be very difficult for any conscientious Supreme Court justice to write, as other federal appeals judges have, that the Second Amendment is just about the National Guard and that there is no individual right to keep and bear arms.