FEDERAL COURT SAYS
<align=center>SECOND AMENDMENT PROTECTS INDIVIDUAL RIGHT
On Tuesday, the Fifth Circuit Court of Appeals handed down its long-anticipated ruling in the case of U.S. v. Emerson, declaring in clear and ringing terms that the U.S. Constitution`s Second Amendment protects an individual Right to Keep and Bear Arms. In its decision, the court forcefully rejected all variants of the "collective right" theory advanced in recent years by anti-gun lobbies and their ideologues.
The ruling, which George Mason University law professor Nelson Lund called, "[T]he most important and favorable Second Amendment judicial decision in American history," echos U.S. Attorney General John Ashcroft in recognizing the right of individuals to keep and bear arms. Ashcroft, you will recall, has been subjected to numerous attacks from gun-ban extremists for his publicly stated position on the true meaning of the Second Amendment.
NRA-ILA Executive Director James Jay Baker hailed Tuesday`s ruling, stating, "This is clear corroboration of what reputable historians and constitutional scholars have said consistently; that the Second Amendment, like other rights, is an individual right designed to protect rights of the people, not to expand the powers of government." Baker went on to say, "[O]ur client—the Second Amendment—has had its day in court. And the Second Amendment has emerged victorious . . . ."
The court`s unanimous decision in U.S. v. Emerson actually reversed a lower court dismissal on Second Amendment grounds of the indictment of a Texas doctor charged with violating the section of federal firearms law [§ 922(g)(8)] criminalizing gun possession by the subject of a domestic restraining order. The court concluded that § 922(g)(8) is constitutional as applied to Dr. Emerson, saying that the individual right to arms may be subjected to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."
But Tuesday`s Emerson opinion—written by Chief Judge William Garwood and supported by Judge Harold DeMoss—noted how the Clinton-Reno Justice Department steadfastly maintained that the Supreme Court`s decision in U. S. v. Miller mandated the court`s rejection of the individual right interpretation of the Second Amendment. "We disagree," Judge Garwood wrote, saying the Miller decision did not resolve the individual versus collective right issue, but "to the extent that Miller sheds light on the matter, it cuts against" the Clinton-Reno position.
"We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment."
To correct that deficiency, the court produced its own meticulous 84-page historical examination, concluding:
"We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government`s power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans."We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.
"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 . . . that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller."
In sum, the Fifth Circuit`s embrace of the individual right interpretation of the Second Amendment is obviously very significant. The deeper political meaning of this decision was summed up by NRA Executive Vice President Wayne LaPierre who said:
"This decision should be read by every American interested in knowing the true meaning of the Second Amendment. The court said in no uncertain terms that it`s an individual right. The court also cut through the political fog and media hype and exposes the real aims of those who advocate that the right to keep and bear arms applies to only government and not the people."In its opinion, the court clearly saw the dangers to individual liberty, when it defined the Janet Reno Justice Department`s position as being based on a model where ‘the Second Amendment poses no obstacle to the wholesale disarmament of the American people.` In totally rejecting that position, the court exposed the end game of those who would deny Second Amendment rights to individual Americans."
Tuesday`s ruling represents yet another stunning judicial defeat for the gun-ban movement—a dramatic avalanche of losses in the courts that has been piling up for the past several years. Not surprisingly, the gun-ban lobby formally known as HCI issued a confusing release praising the ruling, but criticizing the conclusions on which the ruling was based. The gun-ban lobby`s lead attorney, Dennis Henigan, suggested he and his anti-gun cronies would be better suited at interpreting the Constitution than a panel of federal justices with decades of experience. Henigan`s position is also at odds, of course, with a legion of constitutional scholars and attorneys, not to mention our Founding Fathers. (Henigan`s refusal to admit he is wrong is not too surprising, considering that just last week he wildly misrepresented the status of the failing strategy of using reckless lawsuits to destroy the firearms industry.) Curiously, however, the Violence Policy Center (VPC)—an obscure, radical gun-ban organization—issued a release praising the decision without reservation.
The long-term impact this ruling will have on the debate over gun control could take years to evolve, as Professor Lund told National Review Online, "It is unlikely that the Supreme Court will agree to review the case. The Fifth Circuit`s decision marked a very sharp break with precedent in the other courts of appeals, and the Supreme Court will probably want to see whether or not other lower courts adopt the Fifth Circuit`s approach."
CONGRESSIONAL ACTIVITY
<align=center>GREATLY DIMINISHED
Congress has taken little action relative to firearm-related issues over the last week, as concerns over the threat of anthrax have led to heightened security measures and a slower pace of legislative activity. Please continue to call your U.S. Representative at (202) 225-3121 and urge him to support the Smith/Burns amendment to the "Aviation Security Act." For details on this measure, please refer to the last two FAX Alerts we have sent (Vol. 8, Nos. 40 & 41).
In addition, the "National Defense Authorization Act for FY 2002" still awaits final consideration by a House-Senate Joint Conference Committee. Contact conference committee members, as well as all of your own federal lawmakers, and urge them to ensure that Sec. 1062 of S. 1438 is deleted from the final version of the "National Defense Authorization Act for FY 2002." For details on this provision, please refer to our last two FAX Alerts. You can reach your U.S. Senators at (202) 224-3121, and your U.S. Representative at (202) 225-3121. You can also find contact information by using our "Write Your Reps" tool, and for a list of conference committee members, please call the Grassroots Division at (800) 392-8683.
A LOOK AT THE STATES
CALIFORNIA
On Sunday, Governor Gray Davis (D) signed SB 52 and AB 35, which remove the exemptions for licensed hunters and retired veterans from the requirement to obtain the Handgun Safety Certificate, formerly called the Basic Firearms Safety Certificate (BFSC). Those individuals that have served our country courageously, as well as those persons who have undergone hunter safety courses, now must take a written test, demonstrate "safe" handling procedures, and give a thumbprint before receiving state permission to purchase a handgun. In addition to the increased regulations, the shelf life of the certificate is only five years, in comparison to the current BFSC, which is good for life.
NORTH CAROLINA
SB 680, the reckless lawsuit preemption bill, passed the House by an overwhelming majority this week. The House stripped restrictive language from the bill that would have ended traditional North Carolina gun shows. Because there are differences between the House and Senate versions of this legislation, it must now go to a joint House-Senate conference committee that will negotiate a final version of the bill. There is some concern that anti-gun factions in the Senate are going to attempt to put the Senate`s gun show language back into the bill. In order to prevent this, gun owners need to make sure that pro-gun Senators are appointed to the conference committee. Call your Senator and ask him to support SB 680 without gun show language, and to work to make sure that the members of the conference committee respect the rights of gun owners. You can reach your Senator by calling (919) 733-7928, or use our "Right Your Reps" tool to find additional contact information.
