Oct. 22, 2001 The Voice of the Times applauds court ruling on gun rights

Posted: Monday, October 29, 2001

It must have been a black day, indeed, for gun confiscationists when the 5th U.S. Circuit Court of Appeals last Oct. 16 explicitly ruled the Second Amendment addresses an individual -- not a collective -- right.

And the court did not mince words in its ruling.

''We hold . . . that it protects the rights of individuals, including those not . . . 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,'' the judges wrote in their 77-page decision.

But the judges added, ''that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions.''

The ruling, important in several ways and certain to be ammunition in the continuing battle over gun ownership, was based largely on new legal scholarship that debunks the liberal myth of a collective Second Amendment right. It sets precedence, however, for only those federal courts in Louisiana, Mississippi and Texas and is unlikely to be appealed to the Supreme Court, court observers said.

The judges' ruling sprang from a Texas divorce case involving Dr. Timothy Joe Emerson, who was charged with carrying a handgun while under a court order not to threaten his wife. A 1994 federal law prohibits carrying a gun while the subject of such a protective order.

District Judge Sam Cummings of Lubbock, Texas, ruled the federal charge was a violation of Emerson's rights under the Second Amendment. He dismissed the indictment, and the government appealed.

Assistant U.S. Attorney William B. Mateja argued the government's case. He said the Justice Department believed the Second Amendment guaranteed only the National Guard's right to have weapons. Further, he said the Clinton administration believed it had the right to seize guns from the public. So much for former President Clinton's self-professed affinity for duck hunters.

In its decision, the appeals court, while affirming that the Second Amendment protects an individual right, said the district court erred because of Emerson's prior behavior and it ordered that he stand trial on the federal charge.

What the decision underscores is the availability now of increasingly good information on the origins and early interpretations of the Second Amendment, until recently much ignored by scholars. Even Laurence H. Tribe, perhaps the nation's pre-eminent constitutional law scholar and a liberal professor of law at Harvard, lately has acknowledged the Second Amendment is an individual right, ''admittedly of uncertain scope.''

The 5th Circuit got it right. Hopefully, other circuits will follow suit and we'll be done with the bogus claims about one of our most important rights.


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