Analysts Ponder Influence of Second Amendment Ruling

Josey1

Analysts Ponder Influence of Second Amendment Ruling 11/5/01! Gun-rights supporters are celebrating a recent finding by a federal appellate court that the Second Amendment grants an individual right to firearms ownership, but some legal observers are skeptical about the influence the decision may have in forming a new national legal precedent. On Oct. 16, the Fifth Circuit Court of Appeals issued two decisions on U.S. v. Emerson, a case involving defendant Dr. Timothy Emerson, who had been prosecuted for possessing a gun while under a restraining order, a violation of the 1994 Lautenberg Amendment to the Gun Control Act. Federal District Judge Sam Cummings had dismissed the government's case against Emerson, claiming that the Lautenberg Amendment was unconstitutional on Second Amendment grounds, prompting the appeal.The three-judge appellate panel overturned the Cummings decision, finding that the government does indeed have a right to prohibit persons under protective orders from having guns. However, in a somewhat unusual maneuver known as obiter dicta, the appellate judges turned their attention to the Second Amendment itself and what kinds of rights they believe it actually guarantees.In legal parlance, obiter dicta is basically a judicial excursion. It is a discussion that is not essential for resolving the case at hand. Despite the fact that the judges had overturned Cummings' ruling, they nevertheless found by a 2-1 vote that the Second Amendment grants an individual right to gun ownership. Although the judges found that the Lautenberg Amendment was constitutional, it was their more general discussion on the meaning of the Second Amendment that has attracted the most attention.And for good reason. After all, the Cummings decision in the lower federal court was the first time in 61 years that a federal court has found that the Second Amendment grants individuals, as opposed to individuals acting collectively as members of state militias, a constitutional right to gun ownership. Ever since the U.S. Supreme Court's 1939 ruling in U.S. v. Miller, federal courts have consistently concluded that the Second Amendment does not provide an individual right to gun ownership. Instead, they have interpreted the Amendment to protect the creation of state militias.Now that the Fifth Circuit has broken the string, what will the effect be?"I would hope that other courts will see it for what it is, which is a decision to uphold a gun law with an ill-advised detour into an area that the court never should have entered," Mathew Nosanchuk, litigation director and legislative counsel at the Violence Policy Center, told Join Together Online. "As of very recently (August), other courts of appeals were finding that the Second Amendment does not protect an individual right. This (Emerson) was one little drop in an ocean of court decisions that reject the individual-rights view and will dissipate as it should."As recently as August 29, other federal circuits were rejecting individual Second Amendment rights. On that day, the 10th Circuit ruled in U.S. v. Haney that "a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well regulated militia." Earlier this year, the Fourth and Eighth Circuits reached similar conclusions. Because the court ruled that the Second Amendment did not protect Emerson and because it's discussion of the amendment was dicta, Nosanchuk said that "the precedential value of the Second Amendment discussion is, in our view, negligible. It's a Pyrrhic victory for the NRA because they lost the case." The Fifth Circuit, which covers Texas, Louisiana, and Mississippi, is considered one of the most conservative of federal judicial districts. And the two judges comprising the majority in the Emerson opinion, Harold DeMoss and William Garwood, have strongly conservative reputations. Nevertheless, even with their conservative bents, DeMoss and Garwood were unwilling to strike down the Lautenberg Amendment, "arguably, one of the weaker parts of the Gun Control Act in Nosanchuk's estimation. With Emerson, "you're not even talking about someone who's convicted here," he said. "You're talking about someone who's under a protective order. So if this law is constitutional under the Second Amendment, then what law wouldn't be?" Of course, had the appellate judges agreed with the lower court's finding that the Lautenberg Amendment was unconstitutional, its discussion of the Second Amendment would have been relevant. But because the appellate judges chose to deal with the constitutionality of gun ownership in a side discussion, it raises the question of why they chose to do so.The reason the Emerson case attracted so much attention was not only because Judge Cummings' decision in the lower court was the first time in more than 60 years that a federal judge had come down on the side of the "individual rights" argument. It also occurred at a time when the legal scholarship supporting that belief had grown to sizable levels.According to Carl T. Bogus, an associate professor at the Roger Williams University School of Law, the financial influence of the NRA has had a lot to do with that growth. Around 1990, "the NRA launched a concerted effort to promote more writing supporting the individual rights position," he pointed out in an article, "The History and Politics of Second Amendment Scholarship," that he wrote for the Chicago-Kent Law Review (Vol. 76, No. 1) in 2000. "Through a related foundation, the NRA began distributing large sums to friendly scholars." According to Bogus, one of the leading voices advocating the individual-rights position, lawyer Stephen P. Halbook, for instance, received NRA grants totaling more than $38,000 in 1991 and 1992.When the appellate court began its deliberations last year, the individual-rights theorists weighed in heavily (as did supporters of the prevailing "collective rights" theory) with amicus briefs.Did they have an effect in influencing the court to address the issue as a side matter?"Oh, I don't doubt it," Carl T.Bogus, an associate professor at the Roger Williams University School of Law who has written extensively on gun control and the Second Amendment. "I'm sure it had an influence."And while the appeals court began its deliberations on Emerson long before John Ashcroft was named as attorney general by President Bush, Ashcroft's stated position (expressed in a letter to the NRA) supporting the individual-rights theory also may have an effect, some believe.In a strange turn of events, Emerson filed a motion that the Ashcroft letter be entered into the record to be considered by the judges. That is, the defendant asked the court to include a document authored by the man who heads the government agency that was prosecuting him. The court denied the motion. Nevertheless, Nosanchuk believes the letter did influence the judges' decision."The Ashcroft letter was never officially considered by the court, but I wouldn't be surprised if they read it," Nosanchuk said. "Also, the court result kind of parrots the Ashcroft letter in the sense that it's trying to have it both ways. Ashcroft's letter says there's an individual right but you can impose restrictions on that right and this is what the court is attempting to say."What might the Fifth Circuit decision mean for gun laws in the U.S.? Nobody knows for sure. Reactions range from the VPC's assertion that it rightly lacks any precedential value to assertions by gun-rights groups that it's now only a matter of time before an unfettered Constitutional right to gun ownership becomes the law of the land. "I'm guessing that we'll see a new period here," Bogus told Join Together Online. "There has been this uniform reading of the Second Amendment since 1939 and this shatters the uniform reading in the courts. I'm guessing that people will be taking Second Amendment issues into other circuit courts and that the courts may very well split on how they come out about it. Scholars and commentators are divided, so I guess it's reasonable to expect that the courts will be divided. After some period of time, a decade or so, maybe the Supreme Court will resolve it."Responding in a statement on the day following the appellate decision, Dennis Henigan, director of the Brady Center to Prevent Gun Violence's Legal Action Project, called the ruling an "aberration." "(W)e believe that the collective rights interpretation of the Second Amendment will continue to be the prevailing view of courts in every region outside the Fifth Circuit."Meanwhile, even with its interpretation of the Second Amendment as a guarantor of individual rights, the Fifth Circuit decision does not suggest that guns can't be regulated. In an Oct. 25 article in National Review Online, individual-rights supporter David Kopel analyzed the Emerson decision and concluded, "People can differ in good faith about what constitutes reasonable regulation. The Emerson decision, even if affirmed by the Supreme Court, would not foreclose advocates of gun control (as opposed to gun prohibition) from making a case in favor of laws to disarm people who are provably dangerous." http://www.jointogether.org/gv/wire/features/reader.jtml?Object_ID=546381