Whose right is it?

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.

June 13, 1999|By Jules Witcover

EVER SINCE the Colorado school shooting put the debate about guns on the front burner of American discourse, the advocates of a guaranteed individual right to own firearms, led by the National Rifle Association, have been put on the defensive.

NRA spokesmen have continued to declare the Second Amendment's stipulation that "the right of the people to keep and bear arms shall not be infringed" is not merely a collective right, despite numerous lower court rulings and one 60 years ago by the Supreme Court to the contrary.

These rulings have taken note of the conditional phrase in the Second Amendment that prefaces the declared right: "A well regulated Militia, being necessary to the security of a free State ... " The courts have often said the Constitution intended that the right to bear arms be tied to collective defense of the state, as in a militia in Colonial times and its closest modern-day counterpart, the National Guard.

Most often cited by gun-control activists is the Supreme Court's 1939 ruling in U.S. v. Miller. It found that a man charged with transporting a sawed-off shotgun across state lines in violation of the National Firearms Act of 1934 could not claim an individual right of ownership, because the weapon was not proved to have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." The court noted that the weapon was "not any part of the ordinary military equipment or that its use could contribute to the common defense."

But the NRA and the rest of the gun lobby have continued to argue that this ruling and others like it were too narrow in their interpretations of the Second Amendment. In a largely effective public-relations campaign, the gun lobbyists have managed to inculcate as fact their contention that the Constitution guarantees an individual right to keep and bear arms.

Until recently, the success of this effort has been based more on relentless repetition than legal precedent. But a case that could bring the issue to a head is the one from a U.S. District Court in northern Texas. There, Judge Sam R. Cummings has held that the Second Amendment did indeed bestow an individual gun-bearing right on law-abiding American citizens. (Convicted felons lose that right, a condition that the gun lobby does not challenge).

A family physician, Timothy Joe Emerson, under a Texas lower court's temporary restraining order in a divorce proceeding, was ordered not to make "threatening communications or actual attacks" on his wife, Sacha. She alleged, according to court papers, that he "threatened over the telephone to kill the man with whom Mrs. Emerson had been having an adulterous affair."

Emerson happened to have a gun in his possession, in violation of the restraining order. The court papers noted, however, that no evidence was presented to show Emerson had threatened violence. The papers also noted the court had not admonished Emerson that the restraining order would make him subject to federal criminal prosecution "merely for possessing a firearm while being subject to the order."

Cummings, in explaining his decision, took note of the continuing argument between gun advocates and foes about whether the Second Amendment guarantees an individual or a collective right to keep and bear arms. Siding with the NRA, he ruled that the function of the clause relating to a "well-regulated Militia" was "not to qualify the right, but instead to show why it must be protected." He cited precedents in English law and colonial statutes, observing that without the individual right to bear arms, "the colonists never could have won the Revolutionary War."

Drawing on James Madison's Federalist No. 46 and other documents, the judge observed that Madison had "aligned the right to bear arms along with the other individual rights of freedom of religion and the press, rather than with congressional power to regulate the militia."

Of the Supreme Court decision in the Miller case, Cummings said, "Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons."

Concerns about social costs

As for the argument of gun-control advocates that the Second Amendment's reference to a well-regulated militia reflected societal conditions of a bygone day that had not yet seen the firearms that have become a public scourge, the Cummings decision said, "Concerns about the social costs of enforcing the Second Amendment must be outweighed by considering the lengths to which the federal courts have gone to uphold other rights (such as freedom of speech, press and religion) in the Constitution. The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights."

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