Challenging state and local ordinances restricting nonlethal weapons may provide jurisprudence that the right to bear arms is not limited to the right to bear firearms. "Annie Get Your Gun"
Second Amendment Right to Keep and Bear Arms

In recent weeks, litigation, legislation and news-related events regarding the right to keep and bear arms seem to be exploding nationwide. While gun-control advocates have claimed some minor victories, it is more the gun-rights advocates who are winning in these showdowns.

First to the political arena, where Second Amendment advocates claimed an enormous victory last week when Southern Democratic governors, joined by Georgia Democratic Senator Zell Miller, called on Democrats to be more sympathetic and supportive of people who own guns. This follows Senator Miller’s remarks at a National Rifle Association (NRA) meeting where he concurred with NRA officials that gun owners in Southern states like Arkansas, Tennessee and West Virginia cost Al Gore the election. "It’s about values. It’s about setting priorities. It’s about personal freedom. It’s about trust," remarked Senator Miller. (Let’s not forget it’s also about the Constitution.)

At the state level, Virginia Governor Mark Warner signed a law overturning a Virginia city’s ban on concealed handguns in city buildings. In Utah, legislators passed a bill that requires all district courthouses to provide free gun lockers for citizens to safely stash their weapons before entering the courthouse. Meanwhile, the U.S. Congress is currently considering whether pilots should be allowed to carry guns aboard commercial flights.

On the legal front, a three-judge panel from the 1st Ohio District Court of Appeals ruled unanimously that Ohio’s ban on concealed weapons is unconstitutional. To support its decision, presiding Judge Mark Painter cited to the first article of the Ohio State Constitution, which says that "the people have the right to bear arms for their defense and security," and he remarked that "[w]e believe they meant what they said." Gun-rights groups see this as a blueprint for potential lawsuits in other jurisdictions with concealed weapons bans.

It has not been a completely smooth ride through the courts for gun-rights advocates. In California, the state supreme court ruled in two cases that local governments may outlaw gun shows on public property, such as those that commonly occur at fairgrounds. Alameda and Los Angeles counties passed the subject ordinances in response to shootings on their fairgrounds and to address concerns that gun shows tarred the image of the counties and promoted violence. The gun industry challenged the ordinances in federal court. But the federal court, unsure of how to interpret the state law, asked the state supreme court to determine whether the state law preempted the local laws. With the ruling that counties and cities can ban gun shows on public property, the case now moves back to the Ninth Circuit Court of Appeals where it will resolve the remaining issues, including whether the bans violate First Amendment protection for commercial speech.

With all of this activity in legislatures and courtrooms, what is surprising is how little focus has been given to the textual meaning of the Second Amendment to the U.S. Constitution. What exactly did the Founding Fathers mean when they espoused: "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?"

With one noted exception, there have been remarkably few cases-on-point to answer the age-old question whether this right to keep and bear arms belongs to each of us individually, or to us collectively as members of a militia.

Last year, the 5th U.S. Circuit Court of Appeals ruled that the Second Amendment preserves an individual’s "right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training." United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). However the Court ruled "that does not mean that those rights may never be made subject to any limited, narrowly tailored…exceptions or restrictions."

Perhaps the closest opportunity the Supreme Court has had to determine whether the "right of the people" is a personal right was in United States v. Miller, 307 U.S. 174 (1939), in which the Court determined that the Second Amendment did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense."

Undeniably the subject of considerable academic and public debate, this issue may not garner further Supreme Court jurisprudence until the perfect case, with simple facts and clear issues, moves through the courts. Justice Thomas, in his concurring opinion in Printz v. United States, 521 U.S. 898, 946 (1995), writes:

"The Second Amendment similarly appears to contain an express limitation on the government's authority . . .. This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to ’keep and bear arms,’ a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ’has justly been considered, as the palladium of the liberties of a republic.’ 3 J. Story, Commentaries § 1890, p. 746 (1833).’" (Footnotes omitted.)

Ultimately, the Printz case struck a blow to provisions of the Brady Act, not by invoking Second Amendment jurisprudence. Rather, challenged provisions were found inconsistent with the Tenth Amendment because they compelled state officials to administer federal regulatory programs.

The most recent Second Amendment case before the Supreme Court was Muscarello v. United States, 524 U.S. 125 (1998), wherein the Court determined that a statutory definition applied to "carries a firearm" was not limited to carrying a firearm on the individual’s person, but could also include such instances as carrying the weapon in a vehicle.

With strong public interest in self-defense emerging since the September 11 terrorist attacks, those unwilling to carry a gun still should resist infringements on their right to bear arms — and we don’t just mean firearms. The next Second Amendment battle looming on the horizon could be over stun guns, mace and pepper sprays -- popular choices for many who will not or cannot arm themselves with a gun.

Under many state and local laws, possession or ownership, particularly of a stun gun, is illegal. Yet, there is some case law that concludes that weapons other than guns — for instance, knives or billy clubs — can qualify as "arms." Challenging state and local ordinances restricting nonlethal weapons may provide jurisprudence that the right to bear arms is not limited to the right to bear firearms.

[Posted May 2, 2002]


May 10, 2002

"Annie Get Your Gun": The Sequel

What a difference a week can make. Last week, we reported on the happenings nationwide in the right to bear arms arena, noting with wonder how little focus has been given to the textual meaning of the Second Amendment to the U.S. Constitution. [Link to "Annie Get Your Gun"] This week the genie, a.k.a. Solicitor General Theodore Olson, granted our wish.

On Monday, May 6, 2002, the administration’s top Supreme Court lawyer filed a brief for the United States in opposition to a petition for writ of certiorari before the United States Supreme Court. The case, Emerson v. United States, is on appeal from the United States Court of Appeals for the Fifth Circuit.

As noted in the previous article, Emerson represents the first time a federal appeals court has dealt gun rights advocates the hand to invoke the Constitution as a trump card. Emerson endorsed the concept that the Second Amendment protects the rights of individuals to possess private firearms, regardless of whether they are in a militia.

In Emerson, the appellate court conducted a detailed textual and historical analysis of the Second Amendment and concluded that the Amendment provides an individual right, albeit one that is subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right to Americans generally to keep and bear their private arms as historically understood in this country."

In urging the Supreme Court to deny hearing the appeal in Emerson, Solicitor General Olson states that "[w]hatever the merits of [the] claims, they do not warrant review at . . . the current interlocutory stage of the case." But much to the chagrin of gun control advocates, Mr. Olson did not stop there.

In a lengthy footnote, very likely to be cited more often than any other part of the brief, Mr. Olson outlines the government’s current position on the interpretation of the Second Amendment as the individual rights model heavily favored by gun-rights proponents, announced late last fall in the wake of the Emerson decision in a memorandum from Attorney General John Ashcroft to all United States Attorneys.

"The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

Unfortunately, Supreme Court jurisprudence on this constitutional issue likely will have to wait. As noted by Mr. Olson, "while the courts of appeals are in disagreement concerning the abstract question whether the Amendment protects an individual right to bear arms for reasons unrelated to militia service, no circuit conflict exists on the constitutionality of any firearms prohibition contained within [the subject statute]."

The wheels of justice move slowly while we wait for the right vehicle (a case on point) to drive the issue to the Supreme Court.

To download the brief from the Solicitor General in Emerson v. United States, please click here.

May 2, 2002
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