Second Sight

In 1996 the legal scholar Dan Polsby wrote an essay for Reason magazine in which he suggested what might happen if the Second Amendment ever achieved "the status of normal constitutional law." Instead of arguing about whether the amendment has any practical force at all, he said, we would have to start exploring the contours of the right to keep and bear arms.

Thanks to a recent decision by a federal appeals court, that process may have begun. By declaring unambiguously that the Constitution protects an individual right to possess firearms even while upholding an exception to that right, the U.S. Court of Appeals for the 5th Circuit has invited both sides in the gun control debate to get serious.

The case involved Timothy Joe Emerson, a Texas physician whose wife had filed for divorce and obtained a court order enjoining him from threatening or injuring her. He was charged with violating a federal law that forbids people subject to such injunctions from possessing guns.

Emerson challenged the indictment on several grounds. On the face of it, his strongest argument was that Congress has no constitutional authority to legislate in this area. But because the Supreme Court has held that practically nothing is beyond the federal government's purview if it asserts a connection to "interstate commerce" (through which Emerson's gun had traveled on its way to him), the courts were bound by precedent to reject this claim.

By contrast, the Supreme Court has never directly confronted the issue of whether the Second Amendment applies to individuals. A frequently cited 1939 decision that upheld a federal ban on sawed-off shotguns did not come down clearly on one side or the other. Opinions in several other cases have provided support for the individualist interpretation, but only in passing.

Lower courts–including, until now, every circuit court to rule on the issue–have favored the "collective rights" interpretation, which holds that the Second Amendment applies only to state militias. According to this reading, the amendment has no bearing on attempts to restrict or ban the private possession of firearms.

In its lengthy opinion, the 5th Circuit methodically dissects that view, showing how implausible it is in light of the Second Amendment's wording, history, and constitutional context. The court's critique draws upon two decades of scholarship to illuminate how the amendment was understood by the Framers and by leading 19th-century jurists. "All the evidence," the judges conclude, "indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans."

But that is not the end of their analysis. While "the Second Amendment does protect individual rights," the court says, "that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the rights of Americans generally to individually keep and bear their private arms as historically understood in this country."

Spelling out exactly what that mouthful means is the sort of thing Dan Polsby had in mind when he talked about integrating the Second Amendment into normal constitutional law. In this case, the court concluded that "the threat of lawless violence" was sufficient, "though likely barely so," to justify depriving Emerson of his Second Amendment rights while he was under the injunction. The judges also noted that "felons, infants and those of unsound mind may be prohibited from possessing firearms."

As for the constitutionality of other "exceptions or restrictions," it's clear that wholesale disarmament would be out of the question (a development that could help calm the often vociferous conflict over gun policy). But various less sweeping measures might be upheld even by judges who take the Second Amendment seriously.

"Firearms regulations should be subject to the heightened scrutiny that courts reserve for impositions on other fundamental rights," Polsby wrote. "As with any civil right, the burden of persuasion should remain with the proponent of legislation that restricts or burdens the right to keep and bear arms, rather than, as with ordinary legislation, on the opponent."

Even as the Supreme Court steadily expanded protection for freedom of speech during the last century, it permitted certain kinds of content-neutral regulation, along with outright bans on some categories of expression (fraud, for example). Likewise, the right to keep and bear arms will have to be delineated if it is to be respected.