Date: Wed, 17 Oct 2001 12:54:52 -0400
To: Matthew Gaylor <freematt@coil.com>
From: Matthew Gaylor <freematt@coil.com>
Subject: NYT: Court Says Individuals Have a Right to Firearms
Content-Type: text/plain; charset="us-ascii" ; format="flowed"

<http://www.nytimes.com/2001/10/17/national/17GUNS.html>

October 17, 2001

Court Says Individuals Have a Right to Firearms

By WILLIAM GLABERSON

In a case that had drawn intense national attention from supporters 
and opponents of gun control measures, a federal appeals court in New 
Orleans ruled yesterday that the Constitution guarantees individuals 
a right to have firearms.

But the court, in wading into one of the most contentious issues of 
constitutional law, disappointed pro-gun groups by declaring that the 
right was subject to some regulations, leaving open the door for gun 
control provisions.

Ever since an unusual pro-gun ruling from a Texas federal judge in 
1999, the case had become the central legal battleground over the 
Second Amendment guarantee of a right "to keep and bear arms," which 
has been a political rallying cry for the National Rifle Association 
and other groups. They say there is a constitutional right for 
individuals to bear arms, contrary to most court decisions, which 
have said the amendment gives only a collective right, such as for 
state militia units.

The ruling yesterday by the United States Court of Appeals for the 
Fifth Circuit involved the case of a Texas doctor charged with 
illegal gun possession. Although the court said there was a Second 
Amendment right, it sent the case back to federal court for the 
doctor to face trial.

In the decision released late yesterday, two judges of a three-judge 
panel wrote that "the Second Amendment does protect individual 
rights." But the majority opinion quickly added, "that does not mean 
that those rights may never be made subject to any limited, narrowly 
tailored specific exceptions."

Because there is now likely to be a trial in the case decided 
yesterday, several legal experts said it appeared unlikely that the 
Supreme Court would review the ruling. But the opinion, the first by 
a federal appeals court to declare that the Second Amendment gives 
individual citizens a right to firearms, is expected to be 
influential in a continuing legal battle over the issue in the courts.

"The Fifth Circuit split the baby in a rational way that will both 
please and displease both sides," said Laurence H. Tribe, the 
constitutional law expert at Harvard Law School.

The New Orleans court's ruling sets law only for federal courts in 
Louisiana, Mississippi and Texas.

Previous court rulings over many years have held or suggested that 
the right to arms that the drafters of the Constitution were 
referring to was the right of the citizens as a group to have 
firearms for militia units.

The earlier appeals court rulings, and a 1939 decision by the United 
States Supreme Court that suggested the "collective rights" 
interpretation, were influenced by historical and legal scholarship 
saying the framers of the Constitution were focusing on maintaining 
an armed militia.

But more 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.

Some legal experts who argue that the Second Amendment provides an 
individual right to firearms said the ruling was one of the most 
important ever on the issue. Eugene Volokh, a law professor at the 
University of California at Los Angeles, said the opinion would lay 
the groundwork for many other decisions that will analyze when gun 
control is permitted and when it is not.

Professor Volokh said the ruling gave gun rights the first glimmer of 
protections like those granted in early free-speech cases to 
expression. "This is like what free speech rights were in 1930, when 
the Supreme Court first started to strike down speech restrictions," 
he said.

Kelly Whitley, a spokeswoman for the National Rifle Association, said 
the group had not yet reviewed the opinion and could not comment.

Ruchi Bhowmik, a lawyer at a group that advocates gun control, the 
Brady Center to Prevent Gun Violence, said the group was disappointed 
that the court "felt compelled to rely on discredited legal arguments 
to find an individual right."

The case involved charges against Dr. Timothy Joe Emerson, who was 
indicted for carrying a pistol even though he was under a court order 
in a divorce case not to threaten his wife. A statute makes it a 
federal crime to carry a gun while under such a protective order.

In 1999, a conservative federal judge in Lubbock, Tex., Sam R. 
Cummings, flatly declared that the charges against Dr. Emerson were 
in violation of his right to have firearms under the Second Amendment.

In the decision yesterday, the court said that although there was a 
constitutional right, it did not bar a law intended to protect 
someone from being threatened by a gun. It said the district court 
decision on was incorrect and sent the case back to federal court in 
Lubbock for a trial on the gun violation charge.

Several legal experts said yesterday that the Supreme Court would be 
unlikely to review the Second Amendment issue at least until that 
trial and that it might never agree to take up any appeal in the case.

The decision yesterday was written by Judge William L. Garwood, who 
was appointed by President Ronald Reagan, and was joined in by Harold 
R. DeMoss Jr., who was chosen by President George Bush in 1991.

Judge Robert M. Parker, a Clinton selection, wrote a concurring 
opinion agreeing that Dr. Emerson should be tried on the gun charges. 
But he sharply took issue with the majority for discussing the Second 
Amendment issue at all.

He cited legal rules discouraging what lawyers call dicta, 
observations by judges that are not necessary to reach their 
conclusions. Judges typically say such observations are not to be 
used as precedent.

Judge Parker said the majority opinion on the Second Amendment was 
nothing more than an advisory treatise on this long-running debate 
that "is therefore not binding on us or any other court."

Copyright 2001 The New York Times Company | Privacy Information


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