In October 2001, the U.S. Court of Appeals for the Fifth Circuit ruled in U.S. v. Emerson that the Second Amendment protects an individual right to keep and bear arms. Most of the 40,000-word decision, written by Fifth Circuit Senior Judge, William L. Garwood, is devoted to Second Amendment issues and finds entirely in favor of its conventional, individual rights interpretation. In summary, the court said:
"We have found no historical evidence that the Second Amendment was intended to convey militia power to the states . . . or applies only to members of a select militia. . . . All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. 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. We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with [U.S. v.] Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms. . . ."
Further, the three-judge panel unanimously agreed that the right to arms may be subject to only "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." As examples of such exceptions, the court noted that "felons, infants, and those of unsound mind may be prohibited from possessing firearms." Notably, under the court`s definition of "reasonable" restrictions, many intrusive, prohibitionist measures which anti-gun groups advocate as "reasonable" would be impermissible.
Second Amendment theories. The court noted that the individual rights theory (the amendment protects the right of individuals) is the "standard model" and "has enjoyed considerable academic support, especially in the last two decades." (See Second Amendment Law Library, www.2ndlawlib.org/.)
The "collective rights" theory, the court said, is that " the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia." The "sophisticated collective rights" theory, the court noted, is that the amendment "recognizes some limited species of individual right . . . [which] can only be exercised by members of a functioning, organized state militia who bear the arms while and as part of actively participating in militia activities. The `individual` right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service." The court noted, "On appeal [in Emerson] the government has abandoned the states` rights model and now advocates the sophisticated collective rights model."
U.S. v. Miller. This Supreme Court case, one of several often cited in support of the individual rights view, is, oddly, the one that anti-gun groups most often claim supports their "collective" right views. Adopting anti-gun groups` interpretations as its own, the Reno Justice Department attempted to use Miller against Emerson. The Fifth Circuit, however, completely rejected the government`s arguments.
The Miller case centered around two men charged with possessing an unregistered short-barreled shotgun in violation of the National Firearms Act (1934). Instead of trying the case with evidence presented by the prosecution and defense, the trial court declared the Act unconstitutional in a summary judgment. On appeal, the Supreme Court refused to uphold the decision "in the absence of evidence."
Misinterpretations of Miller as protecting only a collective right hinge on a single portion of the Court`s decision: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces [the militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
The Fifth Circuit noted, however, that such an interpretation is unjustified. First, in Miller the Supreme Court defined the militia in individual rights terms: "The signification attributed to the term Militia appears from the debates in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. . . . ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
The Fifth Circuit concluded: "The government steadfastly maintains that the Supreme Court`s decision in United States v. Miller, 59 S.Ct. 816 (1939), mandated acceptance of the collective rights or sophisticated collective rights model, and rejection of the individual rights or standard model, as a basis for construction of the Second Amendment. We disagree. . . . These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units. We conclude that Miller does not support the government`s collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter, it cuts against the government`s position."
Second, the Fifth Circuit also noted that in Miller the government did not argue, and the Supreme Court did not conclude, that the Second Amendment protected only a "state" or "collective" right and, therefore, the defendants had no grounds for posing a Second Amendment challenge to their indictment: "Nowhere in the Court`s Miller opinion is there any reference to the fact that the indictment does not remotely suggest that either of the two defendants was ever a member of any organized, active militia, such as the National Guard, much less that either was engaged (or about to be engaged) in any actual military service or training of such a militia unit when transporting the sawed-off shotgun from Oklahoma to Arkansas. Had the lack of such membership or engagement been a ground of the decision in Miller, the Court`s opinion would obviously have made mention of it. But it did not. Nor do we believe that any other portion of the Miller opinion supports the sophisticated collective rights model."
Who are "the people?" The Fifth Circuit rejected the pretense that the Second Amendment`s preamble, "A well regulated Militia, being necessary to the security of a free State, . . ." obviates its declarative language, ". . . the right of the People, to keep and bear Arms, shall not be infringed."
"The states rights model requires the word `people` to be read as though it were `States` or `States respectively,`" the court said. "This would also require a corresponding change in the balance of the text to something like `to provide for the militia to keep and bear arms.` That is not only wholly removed from the actual wording of the Second Amendment, but also would be in substantial tension with Art. 1, Section 8, Clause 16 (Congress has the power `To provide for . . . arming . . . the militia. . .`). For the sophisticated rights model to be viable, the word `people` must be read as the words `members of a select militia.`
"The individual rights model, of course, does not require that any special or unique meaning be attributed to the word `people.` It gives the same meaning to the words `the people` as used in the Second Amendment phrase `the right of the people` as when used in the exact same phrase in the contempora-neously submitted and ratified First and Fourth Amendments. There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words `the people` have a different connotation within the Second Amendment as when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests, that the words `the people` have precisely the same meaning within the Second Amendment as without."
The Fifth Circuit added that "throughout the Constitution, `the people` have `rights` and `powers,` but federal and state governments only have `powers` or `authority,` never `rights.` Moreover, the Constitution`s text likewise recognizes not only the difference between the `militia` and `the people` but also between the `militia` which has not been `call[ed] forth` and `the militia when in actual service.`"
What right to "bear arms" is protected? "Proponents of the states` rights and sophisticated collective rights models argue that the phrase `bear arms` only applies to a member of the militia carrying weapons during actual militia service. Champions of the individual rights model opine that `bear arms` refers to any carrying of weapons, whether by a soldier or a civilian. There is no question that the phrase `bear arms` may be used to refer to the carrying of arms by a soldier or militiaman. The issue is whether `bear arms` was also commonly used to refer to the carrying of arms by a civilian."
The court observed, "there are numerous instances of the phrase `bear arms` being used to describe a civilian`s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the `people` (or `citizen` or `citizens`) `to bear arms in defense of themselves (or `himself`) and the state,` or equivalent words, thus indisputably reflecting that under common usage `bear arms` was in no sense restricted to bearing arms in military service. And such provisions were enforced on the basis that the right to bear arms was not restricted to bearing arms during actual military service. . . . We conclude that the phrase `bear arms` refers generally to the carrying or wearing of arms. . . . The appearance of `bear Arms` in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, `the people,` and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of `bear arms` as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S. Ct. 1911, 1921 (1998); viz: `Surely a most familiar meaning (of carrying a firearm) is, as the Constitution`s Second Amendment ("to keep and bear Arms") and Black`s Law Dictionary, at 214, indicate: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."
What is it to "keep . . . Arms?" "Neither the government nor amici argue that "keep . . . Arms" commands a military connotation. The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard."
Substantive guarantee. "Taken as a whole, the text of the Second Amendment`s substantive guarantee is not suggestive of a collective rights or sophisticated collective rights interpretation, and the implausibility of either such interpretation is enhanced by consideration of the guarantee`s placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole."
The Preamble. "[W]e ask ourselves whether this preamble suffices to mandate what would be an otherwise implausible collective rights or sophisticated collective rights interpretation of the amendment. We conclude that is does not. . . . [T]he preamble does not support an interpretation of the amendment`s substantive guarantee in accordance with the collective or sophisticated collective rights model, as such an interpretation is contrary to the plain meaning of the text of the guarantee, its placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole."
"In sum, to give the Second Amendment`s preamble its full and proper due there is no need to torture the meaning of its substantive guarantee into the collective rights or sophisticated collective rights model which is so plainly inconsistent with the substantive guarantee`s text, its placement within the bill of rights and the wording of the other articles thereof and of the original constitution as a whole."
19th Century constitutional scholars. The Fifth Circuit also noted, "the great Constitutional scholars of the 19th Century recognized that the Second Amendment guarantees the right of individual Americans to possess and carry firearms," and cited:
St. George Tucker: "This [the Second Amendment] may be construed as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." (Blackstone`s Commentaries.)
Justice Joseph Story: "The right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers and will generally, even if these are successful in the first instance, enable the people to resist, and triumph over them." (Commentaries on the Constitution of the United States.)
Thomas Cooley: "The meaning of the provision [the Second Amendment], undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose." (The General Principles of Constitutional Law in the United States of America.)