Reviving the Second Amendment

October 27, 2001 • Commentary

On Oct. 16, in United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit joined the Bush administration and respected legal scholars across the political spectrum in affirming the right that each of us enjoy, as individuals, to own a gun. Judge William L. Garwood’s opinion said that the Constitution “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 … that are suitable as personal individual weapons.”

In sustaining the lower court’s “individual rights” model of the Second Amendment, the Fifth Circuit became the only federal appellate court to reject unequivocally two alternative “collective rights” models. One version, the so‐​called states rights model, holds that the amendment merely recognizes the right of a state to arm its militia. A more sophisticated collective rights model acknowledges an individual right to bear arms, but only as a member of, and when actively participating in, the militia — and then only if the government hasn’t provided necessary weapons. That also was the position of the Clinton Justice Department.

In 1939 the Supreme Court looked at that same question — individual right or collective right — in United States v. Miller. The statute in Miller was the 1934 National Firearms Act, which required registration of machine guns, sawed off rifles, sawed off shotguns, and silencers. According to the Fifth Circuit, the Supreme Court stated that the weapons at issue were not for war or common defense, but rather for use by criminals. That type of weapon is not constitutionally protected, regardless whether the Second Amendment applies individually or collectively.

>From a text‐​based perspective, the Second Amendment, like the First and Fourth, refers to “the right of the people.” No reasonable person can doubt that First Amendment rights — speech, religion, assembly, redress of grievances — belong to us as individuals. Similarly, Fourth Amendment protections against unreasonable searches are individual rights. Moreover, consider the inclusion of the Second Amendment within the Bill of Rights, the part of the Constitution that deals with rights of individuals, not powers of the state.

Turning to historical analysis, the Fifth Circuit noted that anti‐​federalists demanded three major changes before ratifying the Constitution: First, they insisted on a Bill of Rights. Second, they wanted to authorize states to arm the militia. Third, they wished to eliminate federal power to maintain a standing army. Federalists agreed only to a Bill of Rights. They countered that federal authority over the militia obviated the need for a standing army. But, more important, armed Americans could resist an oppressive standing army. The federalist position thus depended on the people being armed.

Finally, the Fifth Circuit observed that the Senate, crafting the amendments in 1789, refused to empower states to arm their own militias. Yet that power, expressly rejected, is the foundation of the states’ rights model. Far from establishing states’ rights, the Second Amendment’s militia clause was the federalists’ way of pacifying anti‐​federalists without either limiting the power of the federal government to maintain a standing army or increasing the states’ power over the militia.

The implications of that analysis are important today. On Sept. 11 we learned that the government cannot defend us against all acts of terror. It is imperative, therefore, that we be able to defend ourselves. A disarmed society, because its citizens are defenseless, tends to adopt police state tactics and extinguish civil liberties. Hence, an individual right to bear arms is prophylactic — it reduces the demand for a police state while securing freedom.

To be sure, constitutional rights are not absolute. They do, however, establish a powerful presumption in favor of liberty. Circumstances may justify a limitation on our right to possess a gun. Indeed, the Fifth Circuit held that Mr. Emerson’s Second Amendment rights could be temporarily curtailed because there was reason to believe he posed a threat to his estranged wife. Still, the government must demonstrate, in Judge Garwood’s words, that its restrictions are “narrowly tailored … and not inconsistent with the right of Americans generally to individually keep and bear their private arms.”

Our federal courts now have a unique opportunity to uphold that principle and reinvigorate the Second Amendment.

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