[117179] in Cypherpunks
Re: IP: Case Could Shape Future of Gun Control
daemon@ATHENA.MIT.EDU (Mac Norton)
Fri Aug 27 22:18:11 1999
Date: Fri, 27 Aug 1999 20:50:53 -0500 (CDT)
From: Mac Norton <mnorton@cavern.uark.edu>
To: Robert Hettinga <rah@shipwright.com>
cc: cypherpunks@cyberpass.net
In-Reply-To: <v04210182b3ec65605947@[204.167.101.30]>
Message-ID: <Pine.SOL.4.10.9908272049330.10432-100000@cavern.uark.edu>
MIME-Version: 1.0
Content-Type: TEXT/PLAIN; charset=US-ASCII
Reply-To: Mac Norton <mnorton@cavern.uark.edu>
Your reference below to Mr. Tribe as a "liberal scholar"
puzzles me. Do you have some authority for that sobriquet,
or is it merely your own opinion?
MacN
On Fri, 27 Aug 1999, Robert Hettinga wrote:
>
> --- begin forwarded text
>
>
> Date: Fri, 27 Aug 1999 08:13:27 -0700
> From: Olga Jones <oj@teleport.com>
> To: undisclosed recipients <oj@teleport.com>
> Subject: IP: Case Could Shape Future of Gun Control
> Sender: owner-ignition-point@precision-d.com
> Reply-To: Olga Jones <oj@teleport.com>
>
> http://www.usatoday.com/news/acovfri.htm
>
>
> Source: USA Today
> Published: August 27, 1999
>
> The Second Amendment establishes a right to possess firearms. The
> question is: Is it an individual right or a military necessity?
>
> By Richard Willing, USA TODAY
>
> A well regulated Militia, being necessary to the security of a free
> State, the right of the people to keep and bear Arms, shall not be
> infringed. -
>
> Second Amendment to the U.S. Constitution, 1791
>
> Tucked inside this famous paragraph, amid the multiple clauses, odd
> punctuation and 18th-century syntax, lies the right that Americans
> both cherish and fear: the right to have a gun.
>
> But whose right is it anyway? Is there an individual right to own a gun,
>
> like the individual right to freedom of speech or religion? Or does
> the Second Amendment mean only that Americans can defend themselves
> collectively through state militias, like the modern-day National
> Guard?
>
> The debate over what the Second Amendment actually means has filled a
> forest of law review articles and scholarly papers over the past 10
> years. Now it is about to spill out of the ivory tower and into the
> real world of guns and gun control.
>
> For the first time, a federal judge has ruled that the Second
> Amendment guarantees an individual's right to own a gun. In the
> process, the judge invalidated a 1994 federal law that denies guns to
> anyone who is under a restraining order to prevent him or her from
> harassing a spouse. The law was part of a measure aimed at reducing
> domestic violence by limiting access to guns.
>
> If the decision by a federal district court judge last April in Texas
> is upheld on appeal, it could be a huge setback for gun control
> advocates, placing perhaps hundreds of laws in danger of being struck
> down. And it would be a victory for gun control opponents such as the
> National Rifle Association, which has consistently argued that an
> individual's right to a gun is protected by the Second Amendment.
>
> An appeal of the case, U.S. v. Emerson, begins with the filing of
> briefs in the U.S. Court of Appeals for the Fifth Circuit in New
> Orleans Friday.
>
> The case, which is likely to be argued next January or February, is
> unfolding as liberal scholars such as Harvard's Laurence Tribe, who
> has long been hostile to the individual-rights argument, have begun
> to move toward the NRA's position.
>
> "The real-world consequences (of the Texas case) could be enormous,"
> says Carl Bogus, a specialist on the Second Amendment at Roger
> Williams Law School in Bristol, R.I.
>
> If the lower-court ruling is upheld, "it would stand the law on its
> head," Bogus says. It would destroy Congress' ability to create gun
> control laws. Anyone arrested under current (gun control) laws could
> argue they're unconstitutional. This is not just an academic
> exercise."
>
> The renewed debate over the Second Amendment's meaning comes as
> recent shootings in Atlanta, Los Angeles and Littleton, Colo., have
> increased pressure for new gun control laws. This week, authorities
> in Los Angeles took the unprecedented step of banning sales of guns
> from the nation's largest gun show.
>
> The very fact that there is a debate is likely to surprise many
> Americans, many of whom assume that the Second Amendment already
> guarantees them the right to own a gun. A CBS News poll Aug. 15 found
> that 48% of adults believe there is an individual right to a gun,
> while 38% do not.
>
> Case began as domestic dispute
>
> The case began last August when Sacha Emerson, 26, a nurse from San
> Angelo, Texas, filed for divorce. The local court placed a
> restraining order on her husband, physician Timothy Joe Emerson, 41,
> after she complained that he had verbally threatened her boyfriend.
>
> Timothy Emerson owned a handgun, which automatically put him at odds
> with the federal law barring gun ownership by people under state
> restraining orders in domestic disputes. A federal grand jury
> indicted Emerson, who was "greatly surprised" to learn that he may
> have violated any law, according to his lawyer, David Guinn.
>
> The case never got to trial. In April, U.S. District Court Judge Sam
> Cummings found that the law denying guns to those under a restraining
> order was an unconstitutional infringement of the "individual right
> to bear arms."
>
> The federal law, Cummings wrote, "is unconstitutional because it
> allows a state court divorce proceeding, without particularized
> findings of the threat of future violence, to automatically deprive a
> citizen of his Second Amendment rights."
>
> The decision took gun control advocates and opponents by surprise.
> Cummings, 54, who was appointed to the federal bench by President
> Reagan, had a reputation as a middle-of-the-road jurist who seldom
> set aside an indictment. And Emerson's lawyer, assistant federal
> public defender David Guinn, had raised the Second Amendment
> argument almost as an afterthought.
>
> Both sides are taking the appeal very seriously. The National
> Association of Criminal Defense Lawyers and the NRA plan to file
> briefs supporting Emerson and his argument that there is an
> individual right. A consortium of 45 law professors and legal
> historians has filed on behalf of the other side.
>
> The solicitor general's office in Washington, which handles appeals
> for the federal government, is helping federal prosecutor William
> Mateja with his argument that the domestic violence law should be
> upheld and the indictment reinstated.
>
> Amendment is open to interpretation
>
> Arguments about the meaning of the Second Amendment can be murky,
> because both sides rely on the amendment's wording to reach radically
> different conclusions.
>
> Proponents of the theory that the Second Amendment confers only a
> collective right to bear arms focus on the mention of "militia" in
> the amendment's opening clause.
>
> "Clearly, the reference to 'militia' is there for a reason," Bogus says.
>
> If the Amendment's drafters had "wanted an individual right, they
> wouldn't have needed to qualify it. That first (clause) is
> all-important. They're saying, 'Because there's a need for a militia,
> we're bringing up the subject of arms.'"
>
> These theorists say that history, too, is in their favor. James
> Madison's original draft of the Second Amendment, the theorists note,
> exempted the "religiously scrupulous" - conscientious objectors -
> from bearing arms, indicating that the right protected only arms
> related to militia service.
>
> "If the Second Amendment had been adopted as originally drafted by
> Madison, there'd be no question that its scope is limited to the
> possession of weapons for use in the militia," says David Yassky, a
> Brooklyn Law School professor who has filed a brief supporting the
> collective view in the Texas case.
>
> Supporters of the militia interpretation also say that to accept an
> individual right to arms is to endorse anarchy.
>
> "The Second Amendment can't mean that you have the right to form a
> private army," says Dennis Henigan, legal director of the Center to
> Prevent Handgun Violence.
>
> "That's the logic of (Oklahoma City bomber) Timothy McVeigh," Henigan
> says. The framers of the Constitution "couldn't have intended to
> bestow a right to armed insurrection. That would have destroyed what
> they were trying to build."
>
> Those who advocate the right of the individual to bear arms say their
> adversaries are misreading the Second Amendment.
>
> "You've got to understand: The militia at the time (the amendment)
> was written was basically all able-bodied men," says Stephen
> Halbrook, a lawyer in Fairfax, Va., who has filed a pro-gun-rights
> brief in the Texas case.
>
> When the framers "are talking about the 'militia,' they are talking
> about the 'people.' They'd be shocked if anybody thought they meant
> something different."
>
> Both sides say history supports them
>
> Those in the individual-rights group also say history supports them,
> not their opponents. "When the amendment was written and through most
> of the 19th century and into the 20th, it was assumed that the
> individual right (to a weapon) existed," says Robert Cottrol, a
> Second Amendment specialist at George Washington University law
> school and author of Gun Control and the Constitution.
>
> "It wasn't until federal (gun control) laws were enacted, during
> Prohibition and later during the 1960s, that it even became an issue."
>
> Akhil Reed Amar, a Yale University law professor and scholar of the
> Bill of Rights, says the right is neither collective nor individual
> but something in between: the right of a small community of family
> and friends to defend their homes, as the Minutemen had done during
> the American Revolution.
>
> "They weren't thinking of establishing a right for the National Guard
> or for the Michigan militia," Amar says. "They were thinking about
> Lexington and Concord, where they stood with their families and
> friends to resist an imperial army. If you get Lexington and Concord,
> you get the Second Amendment." America's courts have had little to
> say about the debate. When they have weighed in, it has been on the
> side of those who says there's no individual right.
>
> During Prohibition, Arkansas bootlegger Jack Miller was indicted
> under the first national gun control law for carrying a sawed-off
> shotgun across state lines.
>
> Miller argued that the Second Amendment gave him the right to carry
> the weapon and that the charge should be dismissed. But the Supreme
> Court disagreed, saying in a unanimous 1939 decision that the shotgun
> had no "reasonable relationship to the preservation or efficiency of
> a well-regulated militia" and was thus not protected by the amendment.
>
> U.S. v. Miller was the first and so far the only Supreme Court case
> to address the issue. Since then, the U.S. Courts of Appeal have used
> the case's reasoning to uphold gun restrictions in at least 21
> separate cases.
>
> "As long as a (gun control) law exempts the National Guard or police,
> it has passed muster," says Dennis Henigan of the Center to Prevent
> Handgun Violence. "The law has been all our way." But liberal
> scholars, after backing the militia theorists for years, have begun
> to side with individual-rights proponents.
>
> Sanford Levinson of the University of Texas law school began the
> trend 10 years ago with an influential law journal article that
> compared the Second Amendment to an "embarrassing relative, whose
> mention brings a quick change of subject."
> "This will no longer do," Levinson wrote, concluding that the
> individual-rights argument had a historical basis.
>
> Others picked up on that argument.
>
> "If you're going to look at (the Second Amendment) fairly, you have
> conclude that it means a lot more than its critics say," Amar of Yale
> says. "It's there in the middle of the Bill of Rights for a reason."
>
> In a striking departure, Harvard University's Tribe now concludes
> that the Second Amendment guarantees more than a militia right and
> includes an individual right to own firearms. Tribe's new view is
> included in an updated version of his treatise American
> Constitutional Law, which is out this month.
>
> "Some very serious scholars are concluding that it is too simplistic
> to say that the Second Amendment only protects the militia," Tribe
> says. "It's not just the 'hired guns' for the NRA."
>
> The stakes are large. If the Fifth Circuit upholds the individual
> right to own guns, it would conflict with decisions in other appeals
> courts over the years. This probably would prompt a review by the
> U.S. Supreme Court.
>
> And if the individual-right theory is upheld there, state and federal
> legislatures could have a much harder time passing gun control laws.
> Current laws, too, would be open to challenge. Courts probably would
> impose a "balancing test" to determine whether a proposed gun control
> law unduly restricts an individual's rights. Essentially, courts
> would weigh the justification for the gun control statute against the
> restriction imposed on the individual citizen.
>
> "To date, any restriction short of prohibition (of private gun
> ownership) has been deemed acceptable by the courts," George
> Washington University's Cottrol says. "If a right is involved,
> presumably the whole picture changes. Any law impacting on that right
> might have to pass a much stricter test."
> No one is making book on how the Fifth Circuit will rule. Mateja says
> he'll argue that the militia rights view is "well settled" in law and
> that Judge Cummings' decision was "flat wrong."
>
> Guinn says he'll fall back on the language of the Second Amendment
> and its promise of the "right of the people to keep and bear arms."
>
> "The 'people' means the people," he says. "What else could it mean?"
>
>
>
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> --- end forwarded text
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>
> -----------------
> Robert A. Hettinga <mailto: rah@ibuc.com>
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