The Weekly Standard ran a story in July titled "Taking the Second Amendment Seriously," its cover art showing the weather-stained statue of what looks like a militiaman. The article--actually a thick chunk of legalese by George Mason law professor Nelson Lund--turns out to be the latest conservative gush-fest over an April 1999 federal district court ruling out of northern Texas affirming an individual right to bear arms under the Second Amendment. Thanks to the NRA, most Americans believe the Amendment already confers such a right. But the federal courts have generally only endorsed a "collective" right to bear arms in the context of a state militia, such as the National Guard.
Gun rightists hope the Texas case U.S. v. Emerson will ultimately percolate up to the Supreme Court, where it could become a landmark--the gun issue's equivalent of Roe v. Wade. At NRA headquarters in Fairfax, Virginia, Lund's article is probably already responsible for overheating several copying machines. But while gunslingers get pumped, there are reasons to doubt the impact Emerson will have on gun law.
Timothy Joe Emerson, a Texas doctor, was charged in December 1998 under an obscure federal statute banning firearm possession while under a restraining order. (He had allegedly brandished a gun during an argument with his soon-to-be ex-wife.) Emerson's case, currently before the U.S. Court of Appeals for the Fifth Circuit in New Orleans, got a surprising boost when District Judge Sam R. Cummings decided the statute violated Emerson's individual right to bear arms. Cummings noted that the divorce court had not made inquiries into whether Emerson was dangerous in issuing its restraining order (it is customary not to). Thus, the judge objected to the federal law that effectively deprived Emerson of his right to a gun without an evidentiary finding.
It was the first time a federal gun control law had been overturned on Second Amendment grounds. Judge Cummings (a Reagan appointee) took the "activist" approach: He had slim legal precedent to go on--with the possible exception of the Supreme Court's wishy-washy 1939 ruling in U.S. v. Miller, the last time the high court touched the Second Amendment--so he drew largely on a burgeoning body of legal scholarship.
Will it hold up? Cummings is out on a limb with the individual rights ruling and is depending on the work of scholars rather than judges. It's an unconventional ruling that could be reversed in higher court. But even if it isn't, the NRA doesn't necessarily carry the day.
The legal scholarship used by Cummings isn't a blanket endorsement of the NRA line. While an increasing number of constitutional law professors support some form of an individual right to bear arms, few, if any, would likely endorse the NRA's black-and-white stances against commonsense gun-control measures.
For example, there was much hoopla last August when Harvard's Laurence Tribe, Mr. Constitutional Law himself, came out with a more expansive discussion of the Second Amendment in the newest edition of his treatise American Constitutional Law and endorsed a limited version of the individual rights view. But the emphasis should be on limited. Last October, Tribe penned a New York Times op-ed with Yale prof Akhil Amar arguing that "[a]lmost no right known to the Constitution is absolute... . The right to bear arms is certainly subject to reasonable regulation in the interest of public safety."
So much for the hands-off-my-gun logic of the NRA. Take the Second Amendment seriously, if you like. Gun control will be taken seriously, too.