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Posted: 10/17/2001 11:49:53 AM EDT
[url]http://www.washingtonpost.com/wp-dyn/articles/A5677-2001Oct16.html[/url] A federal appeals court ruled yesterday that the Constitution guarantees individuals the right to have a gun, the first time in recent history that such a high-level legal authority has explicitly endorsed such a view. The decision's immediate impact will be felt in Texas, Louisiana and Mississippi, which are within the jurisdiction of the court that issued the opinion, but the ruling is likely to embolden opponents of gun control to press their cause in federal courts around the country. "We'll obviously look for other cases to make the same point, using this case as a precedent," said Jim Baker, chief lobbyist for the National Rifle Association. The court's decision also amounted to an endorsement of the legal position taken by Attorney General John D. Ashcroft in a letter to the NRA in May. At that time, gun control advocates criticized Ashcroft for adopting an interpretation that they said was at odds with legal precedent. Yesterday, however, the Justice Department had no official comment on the case, saying its lawyers are still studying it. One official seemed to emphasize that the court ruling will not cause any short-term change in the department's policy. "This is not inconsistent with the department's obligation to defend the constitutionality of statutes dealing with gun control," the official said. At least one prominent gun control group argued that the decision was a victory for its cause because, even though the court recognized a general right to own a gun, it also ruled that the federal government could still deny that right in the cases of people who are violent or mentally unstable. "It does not get the NRA any farther in terms of challenging federal criminal laws that prohibit gun possession by people Congress wants to prohibit," said Mathew Nosanchuk, litigation director for the Violence Policy Center. He noted that only two judges in the three-judge panel explicitly said there is an individual right to carry a gun. A third judge said that he disagreed with the court's discussion of the Second Amendment and that the discussion has no value as a precedent because it was not necessary to decide the issue before the court. The case, U.S. v. Emerson, involved a 1994 federal law that prohibits people who are under restraining orders because of domestic violence from owning a gun. A Texas man, Timothy Joe Emerson, said a federal prosecutor's effort to indict him for breaking the law violated his Second Amendment right to possess a gun. A federal district judge in Texas agreed and ordered the indictment dismissed. In yesterday's 77-page ruling, the New Orleans-based 5th U.S. Circuit Court of Appeals said the district court was wrong to dismiss the indictment because of Emerson's violent and unstable behavior. But in a long and detailed discussion of the history of the Bill of Rights, the court said that, while Emerson may have forfeited his right to own a gun, other Americans still have the right because history shows that the framers of the Second Amendment intended to guarantee the right of law-abiding individuals to have a gun, just as the First Amendment protects the freedom of speech of individuals.
Link Posted: 10/17/2001 11:50:24 AM EDT
"We hold . . . that it protects the rights of individuals, including those not . . . 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," the judges wrote. This ruling explicitly rejected the view, advocated by gun control groups, that the Second Amendment was intended only to guarantee state militias' access to weaponry. Gun control groups had argued that the Supreme Court's 1939 decision in U.S. v. Miller, upholding a federal prosecution for possession of a sawed-off shotgun, meant that the government has the right to control possession of all types of weapons. But the judges yesterday held that the Miller case was concerned only with a narrow category of weapons made specifically for illegitimate purposes such as crime.
Link Posted: 10/17/2001 11:53:38 AM EDT
This ruling did more than that. The long and short of it is that they ruled the right to keep and bears arms is an individual right but also that it is constitutional to ban people from owning firearms if a protection order is taken out against them.
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