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The debate over the meaning of the Second Amendment -- whether it protects an individual right to keep and bear arms or a collective right -- enters a new phase, when the solicitor general^s office in Washington, D.C., files legal briefs in the U.S. Court of Appeals for the Fifth Circuit in New Orleans appealing the decision in U.S. v. Emerson.
The solicitor general is tasked with appealing rulings that go against the federal government. This particular ruling -- handed down by U.S. District Court Judge Sam Cummings of the United States District Court for the Northern District of Texas -- dismissed an indictment against Dr. Emerson based on the opinion that the federal law he was accused of violating (the Lautenberg misdemeanor domestic violence provision) represented an unconstitutional exercise of congressional power that violated his individual rights protected by the Second Amendment to the U.S. Constitution (see FAX Alert Vol. 6, No. 12). NRA will soon file its own brief in support of Judge Cummings^ ruling.
Also filing briefs in support of the April ruling are the National Association of Criminal Defense Lawyers and attorney Stephen Halbrook, who successfully argued before the Supreme Court that certain aspects of the Brady Act were unconstitutional. While NRA has always held that our right to bear arms is clearly an individual right, two USA Today articles from today^s edition highlight the fact that more and more constitutional scholars are beginning to agree with this view.
Richard Willing reports in one article that no one is willing to speculate how the Fifth Circuit will rule, but the eventual decision will certainly be critical to the debate over gun control. A ruling in support of Judge Cummings^ decision could compel the Supreme Court to hear a case based on the Second Amendment -- something it has not done since the 1939 U.S. v. Miller case. Willing states that supporters of the collective right/militia argument, like Dennis Henigan, the legal director of the Center to Prevent Handgun Violence, feel that those who support the individual right view "endorse anarchy." However, the group of scholars who endorse the individual right to arms was recently joined by Harvard constitutional law professor Lawrence Tribe, whose opinions on the meaning of the Constitution have been cited in Supreme Court opinions more than 50 times.
In the other article, author Tony Mauro states that the growing support constitutional and legal scholars have been giving to the individual right argument "angers liberals." Tribe, who some feel is the most influential American constitutional scholar today, stated, "I^ve gotten an avalanche of angry mail from apparent liberals who said, ‘How could you?^" He responds by stating, "[A]s someone who takes the Constitution seriously, I thought I had a responsibility to see what the Second Amendment says, and how it fits." The 1978 edition of his legal treatise American Constitutional Law gave little attention to the Second Amendment, while his recently revised version, which has caused such a stir, gives far more attention to the belief in the individual right to keep and bear arms.
"For Larry Tribe to say that there^s more to the Second Amendment than originally thought is very important," commented Drake University law professor Tom Baker.
The Fifth Circuit will likely begin hearing arguments in the appeal of U.S. v. Emerson in January or February of next year. Rest assured that NRA, as well as the nation, will follow this case very closely.
Uploaded: 8/28/1999
Uploaded: 8/28/1999