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Wednesday, Oct. 31, 2001

The debate over gun control in the United States is primarily a debate over policy. For many years, however, gun rights advocates have tried to invoke the Constitution as a trump card. The question whether guns should be legal, they say, should not be about aggregate costs and benefits because the Second Amendment settles the issue in favor of gun rights.

The Second Amendment argument has generally received a cool reception in the courts. Former Chief Justice of the United States Warren Burger even went so far as to label it a "fraud on the American public."

Now, however, for the first time, a federal appeals court has come down squarely on the side of those who argue that the Second Amendment right to keep and bear arms restricts the government's authority to enact gun control legislation.

Although the court's opinion permits some limits on firearms possession and use — such as laws forbidding ex-felons to carry guns or prohibiting guns on airplanes — it places the burden of justifying these limits on the government. That marks a substantial change from the prior attitude of judicial deference to gun control legislation.

The Emerson Case

The ruling in question is United States v. Emerson, issued by the U.S. Court of Appeals for the Fifth Circuit. Emerson endorsed what the court called the "individual rights model" of the Second Amendment.

The Emerson case originally arose from state court divorce proceedings. In 1998, Dr. Timothy Emerson was ordered by a Texas judge not to threaten or harm his daughter or his estranged wife. (Emerson's ex-wife had testified that he had previously threatened to kill a friend of hers.)

A federal statute makes it a crime for a person under such an order to possess a firearm, provided that the firearm affects or has moved in interstate commerce. Shortly after the order was issued, Emerson was indicted by a federal grand jury for possessing a firearm in violation of the statute.

Emerson challenged his indictment on a number of grounds, including the Second Amendment. The federal district court dismissed the indictment. On appeal, the Fifth Circuit reversed, upholding the indictment, because it found that the government had advanced a compelling reason for overriding Emerson's Second Amendment rights.

The court's result meant that it did not really have to reach the question of whether Emerson had Second Amendment rights in the first place. After all, even assuming he did, the court had found the government's interest overrode them. Nonetheless, a majority of the three-judge panel devoted the bulk of its opinion to interpreting the Second Amendment.

Because the majority did not have to reach the Second Amendment question, its analysis technically constitutes what lawyers call dicta — that is, reasoning unnecessary to the disposition of a case. Nevertheless, the majority's opinion could have a substantial impact on the future of gun control in the United States because other courts may follow its reasoning.

Three Second Amendment Models

The Second Amendment states: "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."

The appeals court majority identified three "models" of the Second Amendment. The first and second both emphasize the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The third does not.

The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia; it is not for individuals' benefit.

The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.

Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model.

Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.

A Key Early Second Amendment Precedent

In endorsing the third, individual rights model, the Fifth Circuit broke ranks with the other federal appeals courts that have addressed the issue, all of which have adopted some variant of the first two models. In a sense, the Fifth Circuit was entitled to differ: Decisions of one circuit court are not binding on other circuit courts, and a Circuit split can always be resolved by the Supreme Court.

But did the Fifth Circuit's analysis violate Supreme Court precedent? That is an issue of greater moment, for Supreme Court precedent is, of course, binding upon the federal courts of appeals.

One important Second Amendment precedent is the 1939 decision of United States v. Miller. There, the Supreme Court rejected a Second Amendment challenge to an indictment for possession of a sawed-off shotgun in violation of federal law.

In a terse opinion, the Court concluded: "In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

Most courts and many commentators have read Miller as officially adopting the collective right view of the Second Amendment — that is, one of the views set forth in the first or second model that the Fifth Circuit described in its opinion. However, in Emerson, the Fifth Circuit rejected that reading of Miller.

Based on a re-examination of the government's brief in Miller and the language just quoted, the Fifth Circuit concluded that Miller can at least as easily be read to stand for the opposite conclusion: that if a weapon were of the sort that could be used by the military, there would be an individual right to possess that weapon. Thus, a sawed-off shotgun, because it is not a military weapon, falls outside the Second Amendment — but a more "military" weapon would not.

This is a plausible reading of Miller's language, but it has extraordinarily perverse consequences. It would seem to grant the most constitutional protection to just those weapons that are least suitable to private possession, and least likely to be geared toward personal protection alone: distinctly military "arms" such as tanks, attack helicopters, rocket launchers, or even nuclear missiles.

A More Recent Second Amendment Precedent

Perhaps in recognition of this oddity, the Fifth Circuit did not affirmatively rely on Miller, instead only going so far as to say that Miller is not controlling in either direction. But whether even that more limited conclusion is justified is itself subject to doubt, because Supreme Court cases since Miller have read the case as endorsing something like the collective right view.

For example, in a 1980 case, Lewis v. United States, the Court upheld a federal statute prohibiting a convicted felon from possessing firearms. The Lewis Court cited Miller for the proposition that the statute at issue did not "trench upon any constitutionally protected liberties." Significantly, the statute at issue in Lewis applied to all firearms — not just "unmilitary" ones like a sawed-off shotgun. If military-type weapons triggered Second Amendment rights, presumably the Court would have said so in Lewis.

Perhaps the Lewis case is a misreading of Miller, but if so, it is a misreading by the U.S. Supreme Court itself, whose decisions and language are supposed to bind federal appeals courts.

Text and Original Understanding: The Bill Of Individual Rights?

Treating the Emerson case as presenting a question of first impression, the Fifth Circuit opted for the third, individual rights model because it found that approach most consistent with the text and history of the Second Amendment.

The Fifth Circuit opinion makes a plausible case for this view. However, the arguments are more balanced than the court acknowledged. Let us consider a few key points.

The Fifth Circuit placed considerable reliance on the text surrounding the Second Amendment. The Amendment sits squarely inside the Bill of Rights, which generally protects individual rights. Moreover, the Amendment protects a right of "the people" — and when that term is used elsewhere in the Constitution, it refers to the people in their individual rather than their collective capacity. Accordingly, the Fifth Circuit thought the Second Amendment also protects an individual right.

Preambles and Purposes

Yet, if one is to look at adjacent text, surely one should start with text that appears within the Second Amendment itself. That takes us to the Second Amendment's arresting preamble, which sets for the amendment's purpose: "A well regulated Militia, being necessary to the security of a free State . . . ."

Only one other operative provision of the Constitution contains anything resembling this. Article I, Section 8, Clause 8 gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This, of course, is the clause authorizing copyrights and patents.

A preamble invites interpreters to construe the operative text in light of the purposes set forth in the preamble. Yet that is not how the Fifth Circuit proceeded.

The Fifth Circuit read the language "keep and bear arms" to refer to individual possession and use of arms. If the "keep and bear" language stood alone, that would be a perfectly appropriate reading. However, once we have been alerted by the Second Amendment's preamble to the fact that the provision has something to do with militias, we may be open to other readings.

Founding Era Documents

Moreover, if one reads Founding Era documents, one finds that the phrase "bear arms" was almost always used to refer to military service. (The interested reader can try this himself or herself by searching for the phrase "bear arms" in the Library of Congress's database of congressional and other documents from the founding era.)

To be sure, one can find the occasional usage suggesting the right is not always related to military service — especially among Pennsylvanians. For example, the Pennsylvania Constitution of 1776 provided, in part: "The people have a right to bear arms for the defense of themselves and the State." Furthermore, as the Fifth Circuit noted, some Pennsylvania Antifederalists would have gone even further, proposing an amendment that stated, in part, "That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game."

Yet while these uses show that the phrase "bear arms" could be, and sometimes was, adapted to include activities outside of the organized military, they hardly cast doubt on the dominant Founding Era usage.

What about the fact that the Second Amendment protects not merely the right to "bear" but also to "keep" arms? The Fifth Circuit thought that "keep" certainly means "possess." But that is not necessarily correct.

At the Founding, "keep and bear" appears to have been understood as a unitary phrase, like other constitutional terms such as "cruel and unusual" or "necessary and proper." In my own research, I have not come across any documents of the Founding period that treat "keep" as adding a right to private possession distinct from the military notion of arms-bearing.

The Second Amendment in the Twenty-First Century

By making these arguments, I do not mean to suggest that the Fifth Circuit's decision reflects bad historical research. Overall, Emerson is a scholarly opinion that makes a plausible argument. My point, instead, is that a plausible (and in my own view somewhat more convincing) historical case can also be made for something like the collective right model of the Second Amendment.

With plausible historical arguments on both sides, and ambiguous text, what should courts do? Should they convene a panel of eminent historians to decide what the Second Amendment really meant in 1791? That would hardly settle the matter because historians are nearly as quarrelsome a lot as lawyers.

A more productive debate over the Second Amendment's meaning would focus less on how the provision was understood in 1791 and more on how the United States has changed since then.

Consider just one such change: the fact that professional police forces as we know them today were first created in the nineteenth century — long after the Second Amendment was penned and made supreme law. Prior to the emergence of the police, ordinary citizens would bring what arms they had in response to a "hue and cry" or when serving on a posse comitatus. (Think of a sheriff in the old west rounding up a "posse" to bring an outlaw to justice.)

If private firearm ownership served as a means of collective self-defense, does the assumption of that function by professionals render the Second Amendment obsolete? Or is the Second Amendment only obsolete in those places where police are effective?

Put another way, do citizens living in high-crime neighborhoods that receive inadequate police services retain a residual right of armed self-defense? Would they still have such a right even if it turned out that they were, in fact, actually subject to greater danger armed than unarmed?

These are not easy questions to answer, but they are only made more difficult by the pretense that we can find the answers if only we look deeply enough into the Eighteenth Century. How to interpret the Second Amendment in the Twenty-First Century is a question that only Twenty-First Century Americans can answer.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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