Eagerly Awaited New Orleans Gun Decision

[Gene DeMambro]

From The Boston Globe; October 17, 2001; page A5

This is the entire article, verbatim.

”Individuals have gun rights, court says”

A federal appeals court, giving gun owners a historic victory they have long sought, ruled yesterday that the Second Amendment of the Constitution gives individuals a personal right to have a firearm for their private use.

In a first-of-a-kind ruling, the US Court of Appeals for the Fifth Circuit, based in New Orleans, rejected the longstanding view that the amendment only protects gun possession by those in the National Guard or organized state military troops.

It ruled, however, that the right is subject to reasonable limits, by federal and state laws. It did not spell those out.

“The Second Amendment 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," the court said in its 2-1 ruling.

That right, it added, assures individuals that they may “privately possess and bear their own firearms, such as a pistol, that are suitable as personal, individual weapons.”

The decision had been long awaited. The appeals court took 16 months and more than 80 pages of judicial reasoning to decide the issue in a Texas case that both sides in the gun rights debate consider the most significant in decades on the meaning of the Second Amendment.

The practical effect of the sweeping new decision remained unclear. The decision applies only in those states covered by the 5th Judicial Circuit: Louisiana, Mississippi and Texas. Moreover, the court decided that the individual who brought the case – Timothy Joe Emerson - could not benefit himself from the new decision because the amendment was not violated in his case. He faces charges of illegally having a Beretta pistol while under a court order barring him from getting near his estranged wife and their child.

A gun rights group, the Second Amendment Foundation said the decision "crushed over 60 years of judicial misinterpretation and antigun rhetoric." Foundation spokesman Dave LaCourse said "this is truly a victory for firearms civil rights.”

An antigun group, the Violence Policy Center, praised the part of the decision that cleared the way for prosecution of the Texan involved in the case. Matthew Nosanchuk, the center litigation director, said the Second Amendment declaration did not go as far as gun rights advocates had wanted.

It is uncertain whether the new decision will set the stage for Supreme Court review of the issue. One Justice, Clarence Thomas, has said publicly that the court should reconsider its ruling issued 62 years ago on the meaning of the Second Amendment, a ruling widely understood to mean that the amendment does not guarantee a personal right to guns.

The new decision embraced a view long advocated by the National Rifle Association, the Second Amendment Foundation, and other gun rights groups, a view that was recently endorsed by US Attorney General John Ashcroft.

But that interpretation has been rejected repeatedly by every other federal appeals court to face the issue. Those other courts have declared that the Supreme Court’s 1939 decision - the justices' last word on the issue -settled the issue against an individual-rights interpretation. The Supreme Court has never wavered from that ruling, those other courts have said.

Ordinarily, a division of opinion among lower federal courts on the meaning of a clause in the Constitution would lead the Supreme Court to step in to clear up the conflict. But the justices would have to be persuaded that the new ruling by the New Orleans court was a binding constitutional declaration.

The appeals court overturned a US District Court ruling that had dismissed the illegal gun possession charge against Emerson because that court found the charge violated the Second Amendment. That ruling went too far, the appeals court said; Emerson Second Amendment right was not violated by a court order that treated him as a threat or danger to his wife and child.


[This message has been edited by Gene DeMambro (edited October 20, 2001).]