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The Second Amendment, Reaffirmed

Matt Craighead

A recent court decision -- watched intently by groups of all persuasions but largely ignored in the media -- has permanently reshaped the battle over the Second Amendment. In short, the question debated by a federal appeals court in U.S. vs. Emerson was: does the Second Amendment protect the right of individuals to bear arms?

For years, anti-gun activists used the controversial and unclear 1939 Supreme Court decision U.S. vs. Miller to argue that the amendment only protects the right of states to empower individuals to bear arms for the purpose of a state militia.

The people at Handgun Control, Inc., and elsewhere treated the Second Amendment as an outdated relic of a different time. They misrepresented supporters of the right to bear arms as lunatics who want to arm everyone and his brother with assault rifles; they pointed to radical right-wing militias who talked about the “black helicopters” of the United Nations. The straw man of a society “armed to the teeth” haunted the pro-gun movement to no end.

Now, the dynamics have changed. The right to bear arms is back with a vengeance.

New scholarship on the Founding Fathers has demonstrated that they really did intend on widespread gun ownership, not only for hunting or self-defense against criminals or even foreign invaders, but also to protect against a potentially oppressive federal government. The Founding Fathers were themselves revolutionaries, after all. Today, they would look like right-wing nutcases, clamoring for limited government with strictly enumerated powers (oh, the humanity!).

Yale law professor John Lott, author of the book More Guns, Less Crime, and criminologist Gary Kleck have kicked off additional debates. Kleck has been putting together statistics about how often guns are used in self-defense -- and the numbers are in the millions every year. The only reason we think otherwise, Kleck suggests, is that guns are usually not fired when used in self-defense, and that the media rarely reports such incidents, while endlessly hyping mass shootings like Columbine.

Lott has studied the effects of “concealed-carry” laws. These laws require that every applicant for a concealed-carry permit who meets certain conditions (age, firearms training, no criminal record, etc.) be granted one. (Many localities allow these permits on special request, but they are rarely granted, so the law ensures that they will be widely available.) Lott has found, in comparing states with and without concealed-carry laws, that these laws deter violent crime. They reduce murder, and they reduce public mass murder considerably (because the murderers are at such great risk themselves). They also have none of the negative side effects critics allege they might have.

But all this is small game compared to U.S. vs. Emerson -- which is, in fact, a bona fide disaster for the anti-gun movement. The specifics of the particular case are largely irrelevant; a man sued on Second Amendment grounds that his domestic-abuse record could not be used to restrict his right to bear arms. The federal appeals court rejected that argument, and probably reasonably so, but that was the least important contention. Emerson argued the individual-rights position on the Second Amendment, and the Clinton Justice Department argued the states’ rights (or state militia) position. Both pro- and anti-gun groups filed numerous legal briefs on the matter. When all the evidence was scrutinized, both the original trial judge and the federal appeals court ruled that the individual-rights position was correct, discarding all claims that the Second Amendment does not protect an individual right to bear arms.

The argument is simple. The Second Amendment reads, “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.” This grammar is archaic, but the structure is simple. The first clause (about the militia) is simply a modifier, a justification for the main clause. That is, one of the primary reasons for the right is so that the nation will have a militia. Indeed, U.S. Code Title 10, Section 311 still states that “the militia of the United States consists of all able-bodied males at least 17 years of age ... and under 45 years of age ... who are ... citizens of the Unites States.” I am -- as are many of you readers -- a member of “the unorganized militia” under federal law. But the main clause itself still remains unqualified; the right is not contingent on the existence of the militia.

The next claim of the Justice Department was that “the right of the people” describes a collective, not individual, right. Yet this contradicts the universally acknowledged interpretations of the First and Fourth Amendments, where the same phrase denotes an individual right. The structure of the Bill of Rights also suggests otherwise. All but the last two amendments list the fundamental individual rights; and the only amendment that refers to states’ rights is the Tenth. (The Tenth merely clarifies that the list of enumerated powers in the Constitution is an upper bound on the powers of the federal government, not a lower bound.)

As if all this wasn’t enough, the Clinton Justice Department is now defunct. John Ashcroft runs the Bush Justice Department, and he has explicitly stated that he holds an individual-rights view of the Second Amendment. So the case is unlikely to be appealed.

The court did not set forth a detailed standard on what types of gun regulations are permissible; but the implication of the decision is that the standard is extremely high, just as it is for the First Amendment. That is, there is to be a presumption that gun regulations are generally invalid, and that the burden of proof is squarely on those who assert that guns must be regulated.

This threatens to question many of the gun control laws on the books. How can states justify denying handguns to law-abiding adults? How can they justify a system of licensing that goes beyond simple background checks? How can they justify laws forbidding citizens from having concealed weapons? The answer, I believe, is that they cannot.

In the meantime, for those of us who recognize that gun ownership is an essential liberty of any free society, a new door has opened. The courts have affirmed what we already knew, that our position is the righteous one. Our banner is the Constitution; our rallying cry, the Bill of Rights. Let our enemies tremble at our newfound might.