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Half a Win Is Better than None


Fans of the Second Amendment are rejoicing because a federal appellate court has affirmed that the right to keep and bear arms belongs to individuals, not collectives. Anyone who can read plain English already knew that. But now we have a U.S. appellate court saying so. That can’t hurt.

The October ruling of a three-judge panel from the Fifth Circuit Court of Appeals grew out of the Texas case of Timothy Joe Emerson. Dr. Emerson was going through a divorce and was subject to a temporary restraining order. Federal law forbids anyone subject to a restraining order to have a firearm. He was charged with violating that federal law.

In 1998 Emerson challenged the law, and Federal District Court Judge Sam R. Cummings declared it unconstitutional on grounds that Second Amendment rights are too important to be abrogated by so casual a means as a “boilerplate” restraining order in a divorce action. He also demonstrated that the amendment applies to individuals, not state national guards. This set the stage for the appellate ruling.

Two of the three appellate judges endorsed Judge Cummings’s ruling that gun rights are individual rights. They determined that the 1939 U.S. Supreme Court case U.S. v. Miller, which the gun controllers depend on, fails to support the collective-rights position. Miller in no way hinged on whether the defendants were members of the national guard. In fact, the Supreme Court noted that at the time of the framing of the Constitution the militia was considered to consist of “all males physically capable of acting in concert for the common defense.”

Thus the appellate judges authoritatively pulled away a key pillar of the gun controllers’ case. The Supreme Court has never held that the right to keep and bear arms is something other than an individual right. Further, the appellate court disposed of the argument that the amendment’s preamble, “A well-regulated militia being necessary to the security of a free state,” implies a collective right. They pointed out that the preamble is fully consistent with the individual-rights interpretation.

The Fifth Circuit appellate judges followed up this logical argument by delving into the historical record and concluded: “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.”

At this point, the judges’ opinion takes a wrong turn; for while they find that the Second Amendment sanctions an individual right, they go on to state that the federal law at issue “forbidding people subject to restraining orders to possess guns” is a reasonable limitation on that right. The statute does not violate the Second Amendment, they said, because before issuing a restraining order, a court has to be convinced of a “presently existing actual threat” and the presence of such a threat justifies reasonable restrictions on the right to bear arms. They were satisfied that the judge who issued the restraining order had grounds to be so convinced, even though he made no express findings to that effect and even though none are required by the federal statute. It is enough, the judges said, that the statute requires a hearing on the restraining order and that the order explicitly forbids the use or threat of force. They reinstated the indictment. Emerson will have to stand trial, unless his planned appeal to the U.S. Supreme Court succeeds.

Thus the victory for Second Amendment rights is mixed. It may seem reasonable to restrict the gun rights of someone who is alleged to be dangerous, but it is that principle that is in fact dangerous. Emerson was tried under state law for allegedly threatening behavior — and was acquitted. That being the case, his right to keep and bear arms should be unaffected. On the other hand, had he been convicted, he should have been sent to jail, where he would have been unable to have a gun. As the law now stands in the Fifth Circuit, American citizens can be relegated to a netherworld, neither convicted of a crime nor free to fully exercise their rights.

Sheldon Richman is senior fellow at The Future of Freedom Foundation in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State, and editor of Ideas on Liberty magazine.
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Sheldon Richman is former vice president and editor at The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.