L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 146, November 5, 2001
The One Percent Solution
The Return of the Second Amendment
by Charles Novins, Esq.
Special to TLE
At least two public events happened this year that I never thought I would live to see. The first goes without saying, but the second occurred last week when I opened up the New York Times, and there on the front page was the following headline:
"Court Rules Second Amendment Is Individual Right"
With respect to gun rights, I live in New Jersey, where there aren't any. Where I live, walking out past my front porch with my gun, unloaded, in my pocket, even broken so it can't fire, carries three to five years in state prison.
But the surprise is that it isn't just Jersey that has no gun rights; no American did, until last week.
You might wonder what the heck I'm talking about since 32 states allow any citizen (except ex-cons and nuts) to walk around in public with fully-loaded guns.
The answer is that there's a difference between being able to do something legally and having a RIGHT to do it. Although 32 states allow guns and 18 states do not, no one in the United States had an actual "right" to carry a gun. It's always been in the Constitution of course, but the Supreme Court interpreted it out of existence in the 1939 case U.S. v. Miller.
Over the ensuing decades, millions of Americans have come to recognize what a terrible mistake Miller was. Of course, millions of Americans have also been trying to expand it, in the form of so-called "gun control."
But everything changed last week with U.S. v. Emerson. Having gone more than six decades without a legal leg to stand on, gun rights advocates were handed a gigantic victory.
Dr. Emerson was a man who was normally permitted to carry a gun under the law of his state. However, there is an exception in the law for a person who is the subject of a restraining order, as Dr. Emerson was. There is no allegation whatever that Dr. Emerson used his gun in any way. He was simply found to be possessing it at the time during which a restraining order was in effect, and he was charged with a crime.
Dr. Emerson argued that the law under which he was charged violated "the right to keep and bear arms" under the Constitution. He won, but the case was appealed to a higher court. This particular appeal court (The Fifth Circuit) is one step beneath the United States Supreme Court, and its decisions are law in a particular region of the Southern United States (Texas, Louisiana, and Mississippi). Dr. Emerson lost his appeal, but those who support gun rights won a victory of the sort not seen in generations.
The court did NOT say that Dr. Emerson had no right to bear arms. Instead, they said he DID. They argued, however, that just as freedom of speech is a Constitutional right with sensible exceptions (don't yell fire in the theater!), so too can the right to bear arms be subject to reasonable exceptions.
EVERYONE CLAIMING VICTORY
News reports revealed that the gun-control forces claimed victory (because Dr. Emerson lost), while gun-rights people also said it was a decision that favored them. The decision might also be regarded as neutral, since no one's ability to obtain a firearm was actually changed by the decision.
But in reality, it was the greatest victory for gun-rights in any living person's memory. Of course, it is true that in a world where there are no gun rights at all, it doesn't take that much to cause excitement. But for the last half-century, there has been an uneasy sort of parity between the two sides.
Gun-control advocates have made considerable progress in that time, getting guns virtually banned in states like mine, and getting a number of restrictions enacted at the nationwide level, such as waiting periods and a complete ban on certain types of guns. Public opinion seemed to be headed their way, fueled by an anti-gun media, and after the shootings at Columbine a lot of gun-rights advocates thought that things were going to get much, much worse, before getting better.
The Emerson decision has changed the outlook drastically. Right at this moment, the gun-control movement is precisely one court decision away from losing everything they've worked for since their very inception.
There are several directions in which this can now proceed, and nearly every one of them is not good for the gun-controllers. One possibility is that Dr. Emerson may decide to appeal his case to the Supreme Court. This is a no-lose proposition for gun rights, because the Court has already ruled that there is no right to bear arms. It would be unfortunate if they were to affirm their earlier ruling, but it wouldn't change anything. On the other hand, if they decide to agree that there is a right to bear arms, this will at once strike down all of the laws in the 18 gun control jurisdictions (although not automatically, see below), and it will even strike down certain laws in the other 32 where possession of a gun is conditioned upon something specific, such as taking a training course.
Another possibility is that Dr. Emerson will choose not to appeal. This will leave the Fifth Circuit decision intact. This would result in those few states under Fifth Circuit jurisdiction enjoying their Constitutional right, but it won't affect the rest of the nation. Still, things won't sit still forever. Once this issue is litigated in one of the other Circuits, there will be a much stronger likelihood of the issue going to the Supreme Court.
What are the odds of victory if and when The Supremes get hold of this case or a similar one? That's a big question that a number of legal scholars are going to be evaluating in the coming months, but I can give you one attorney's short answer to the question: Not bad! This particular incarnation of the nation's highest court is a fairly conservative, no-nonsense group that has a modicum of respect for history, which can only assist the pro-gun side.
But the best bet might be to wait a while, because the man most likely to appoint the next Supreme Court justice is George W. Bush. Perhaps he'll choose someone from the Fifth Circuit...
THE LAST STEP
Should the Supreme Court decide to reaffirm the all-important Constitutional right to bear arms, I will personally walk down to my local precinct packing a gun and attempt to get myself arrested and charged. Apart from the fact that it would give me great personal pleasure and pride, it would also be a necessary step in getting rid of New Jersey's laws. The Supreme Court ruling, by itself, would not automatically rid any state of the pestilence called gun control.
Below, some references for those who'd like to learn more:
Washington Post coverage:
US News and World Report discusses case: