A Second Amendment Victory
...The court's decision also amounted to an endorsement of the legal position taken by Attorney General John D. Ashcroft in a letter to the NRA in May. At that time, gun control advocates criticized Ashcroft for adopting an interpretation that they said was at odds with legal precedent...
washingtonpost.com
The Fifth U.S. Circuit Court of Appeals has held that the Second Amendment does protect an individual right to bear arms. In the case, U.S. v. Emerson, the court reinstated the indictment of Timothy Joe Emerson, the husband in a Texas divorce case, who was under a restraining order not to own firearms. But while the court held that the order was not a violation of the Second Amendment, it clearly rejected the notion that the Second Amendment is a "collective right":
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.
Miller refers to the 1939 U.S. Supreme Court case of U.S. v. Miller, which held that possession of a "shotgun having a barrel of less than eighteen inches in length" is not protected by the Second Amendment because it lacks a "reasonable relationship to the preservation or efficiency of a well regulated militia."
Glenn Reynolds catches the New York Times in a bit of biased reporting. The Times' William Glaberson, addressing the individual vs. collective rights argument, writes:
Recent scholarship, some of it sponsored by the National Rifle Association, has suggested that those earlier readings got history wrong. The newer research, cited by the court yesterday, argued that at the time the Second Amendment was written there was great interest in giving individuals access to firearms.
As Reynolds notes:
Only a tiny fraction of scholarship supporting an individual right to arms was "sponsored by the National Rifle Association." However, most pro-individual right writings were written by people like me (full disclosure!), Sanford Levinson and Scot Powe of the University of Texas, William Van Alstyne of Duke, Laurence Tribe of Harvard, Eugene Volokh of UCLA, Akhil Amar of Yale, Daniel Polsby of Northwestern and George Mason University, etc., etc. I rather doubt that any of these people got any money from the NRA for writing their articles--God knows I didn't.
Meanwhile, if you look at footnote 9 in the opinion, you see the court cite numerous articles from the Chicago-Kent Law Review's symposium on the Second Amendment (including one by debunked historian Michael Bellesiles)--which was funded by the anti-gun Joyce Foundation and which paid the authors of these articles, which all oppose an individual right, a whopping $5000 honorarium for writing their pieces. This is an enormous honorarium (I got $500 for speaking at a Stanford symposium on the Second Amendment last year--that's more typical) and you can bet that anti-gun groups would be howling if the NRA paid anyone anything like that. But Glaberson--who knows this, or should--doesn't mention that.
opinionjournal.com |
