By ANNE GEARAN, Associated Press Writer

WASHINGTON (AP) - The Supreme Court said Monday it will not hear two cases that would have offered a test of the Bush administration's newly articulated position that the Constitution protects an individual's right to own guns.

The cases marked the first time that the Bush administration had told the Supreme Court that it has reversed a decades-old policy on the Second Amendment. Until now, the government has said the amendment protects a collective, not an individual, right to gun ownership.

The distinction is important, because gun laws necessarily restrict individual rights.

The administration also said its new position does not undermine federal gun laws, because the Second Amendment right is still subject to "reasonable restrictions."

Using that rationale, the administration urged the high court not to accept the appeals of Timothy Joe Emerson and John Lee Haney. Both were properly convicted of violating laws the administration considers reasonable limitations of the gun right, Solicitor General Theodore Olson said.

The Second Amendment reads, "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."

The Supreme Court interpreted that in 1939 as a protection of militia rights, not of individual ones. Decades of Justice Department ( news - web sites) policy rested on that interpretation, which preceded most federal laws regulating who may own what type of gun.

"The current position of the United States ... 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," Olson wrote in footnotes attached to filings in the Emerson and Haney cases.

That right, however, is "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," Olson wrote last month.

Olson, the administration's top Supreme Court lawyer, was reflecting a view that Attorney General John Ashcroft ( news - web sites) had voiced last year in a letter to the National Rifle Association.

"The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear arms," Ashcroft wrote then.

At the time Ashcroft wrote the letter, it was unclear whether he was expressing his personal view or stating a new policy position for the government.

That question was mostly answered last November, when he sent a letter to federal prosecutors praising an appeals court decision that found "the Second Amendment does protect individual rights" but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."

That opinion by the 5th U.S. Circuit Court of Appeals ( news - web sites) went on to reject arguments from Emerson, a Texas physician, that a 1994 federal gun law was unconstitutional. The law was intended to deny guns to people under judicial restraining orders.

"In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment," Ashcroft told prosecutors.

The appeals put the Justice Department in an awkward position. Although the government won both cases in lower courts using the old interpretation of the Second Amendment, Ashcroft had switched gears by the time the appeals reached the high court.

The cases are Emerson v. United States, 01-8780 and Haney v. United States, 01-8272.

A decision of historic importance

By Michael Barone

http://www.usnews.com/usnews/opinion/baroneweb/mb_011019.htm

While most Americans were following events in Afghanistan and Capitol Hill last Tuesday, the United States Court of Appeals for the Fifth Circuit handed down a decision of historic importance on the Second Amendment, "the right of the people to keep and bear arms."

It has been the widely accepted view in the federal courts and among gun control advocates that the Second Amendment protects nothing at all. They have pointed to the words that precede those just quoted; the full amendment reads, "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." One theory–Judge Garwood in his opinion for the Fifth Circuit calls it the "states' rights" or "collective rights" theory–is that this just allows a state to arm its National Guard. Another theory–referred to as the "sophisticated collective rights" theory by Garwood–is that National Guard members can keep arms only if the government fails to provide them. Under either theory, as Garwood puts it, "the Second Amendment poses no obstacle to the wholesale disarmament of the American people."

Both the collective-rights and the sophisticated collective-rights theories have been endorsed by other federal appeals courts. They have often cited the only U.S. Supreme Court case on the Second Amendment, United States v. Miller, decided in 1939, in which the panel ruled that a federal ban on sawed-off shotguns did not violate the Second Amendment. Gun control advocates and bien pensant opinion have usually taken for granted the assumption that the Second Amendment is meaningless.

Not so, ruled the Fifth Circuit in United States v. Emerson. The case involved a Texas man under a state court order not to threaten his wife during a divorce case. He was prosecuted under a federal law banning gun possession by people under such court orders. The trial court ruled that the federal law violated the Second Amendment. The Fifth Circuit reversed that decision. But in a lengthy opinion, it effectively refuted the "collective rights" and "sophisticated collective rights" theories and endorsed an "individual rights" theory. "The Second Amendment does protect individual rights," Garwood wrote, but "that does not mean that those rights may never be subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." The federal law in question, the court ruled, was such an exception, and so Emerson could be prosecuted.

As one judge on the three-judge panel pointed out, most of Garwood's opinion was technically dicta-words and arguments not essential to the outcome of the case. Whatever your view of the Second Amendment, you could find the federal law in question a reasonable exception to the Second Amendment. But the court's opinion is nonetheless well worth noting. For it summarizes serious recent scholarship on the Second Amendment, and it makes mincemeat of the "collective rights" and "sophisticated rights" theories adopted by other federal appeals courts. It will now be very hard–I would say impossible–for any intellectually honest judge to rule that the Second Amendment means nothing.

Garwood starts by reexamining United States v. Miller. There the Supreme Court adopted the view held by serious scholars (many of them gun control advocates) of the meaning of the word "militia" when the Second Amendment was adopted in 1790: "The Militia comprised all males physically capable of acting in concert for the common defense." When militia is so defined, it is clear that the amendment is not about the National Guard; it does not limit "the right of the people to bear arms."

Garwood goes over each word of the text of the amendment and examines the circumstances under which it was adopted. Here he draws on the scholarship of Sanford Levinson of the University of Texas, Eugene Volokh of the University of California-Los Angeles, William Van Alstyne of Duke University, Daniel Polsby of Northwestern University, and Glenn Harlan Reynolds of the University of Tennessee. Some are gun control opponents, but by no means all; Levinson, a gun control supporter, entitled one law review article "The Embarrassing Second Amendment."

It is interesting that such scholarship should come out of the academy. A generation ago, opinion there was near-unanimous that the Second Amendment meant nothing. The whole class of people from whom judges and law professors are drawn was overwhelmingly in favor of gun control and looked forward to the passage of laws that would effectively end private gun ownership, at least of non-hunting weapons. The idea is that the public would be safer in a gunless society. But at the same time, in the decade from 1965 to 1975, violent crimes nearly tripled in the United States, with very high crime rates in central cities with the nation's toughest gun control laws. Then states, starting with Florida in 1987, passed laws allowing law-abiding citizens to get licenses to carry concealed weapons without asserting any special reason. Yale economist John Lott, in his book More Guns, Less Crime, showed that those measures tended to reduce crime, and today 33 states, with more than half the nation's population, have them. It is increasingly clear that the gun control advocates cannot produce the safety they promise. The passengers and pilots of the three airliners that crashed into the World Trade Center towers and the Pentagon were unarmed and at the mercy of hijackers with box cutters. But at least four passengers on United 93, who knew from cellphone conversations what the hijackers' intentions were, decided to fight back. Now airline pilots are demanding the right to carry guns and will probably get it. A meek, disarmed citizenry is less safe than a proud, armed citizenry.

The Fifth Circuit's opinion in Emerson does not determine how far the right to keep and bear arms goes. It recognizes that government can limit gun ownership from dangerous characters like Emerson himself and recognizes that the government can ban possession of certain weapons–those more powerful than an ordinary soldier carries, for example. But the opinion makes an overwhelmingly strong argument that somewhere on the road between a ban on personal possession of nuclear weapons and a ban on personal possession of a rifle, the Second Amendment stands in the way. The Supreme Court will probably not hear this case. But it will surely be very difficult for any conscientious Supreme Court justice to write, as other federal appeals judges have, that the Second Amendment is just about the National Guard and that there is no individual right to keep and bear arms.

Texas case could affect gun ownership

By Richard Willing, USA TODAY, 06/11/00

It began as a marital dispute in western Texas and became a debate over Timothy Emerson's right to keep a gun after a court told him to stay away from his estranged wife, Sacha.

Now, courtesy of an unusual ruling by a Texas judge, it has blossomed into a gun-rights case that could have enormous impact on gun-control policy in the USA. When gun-rights advocates and gun-control supporters square off Tuesday before a federal appeals panel in New Orleans, the issue will be: Does the Second Amendment to the U.S. Constitution guarantee individuals the right to possess firearms? Or does it, as courts have indicated previously, provide that right merely to state militias?

If the right is guaranteed to individuals, both sides agree that many gun-control laws might be invalid, or at least might have to be rewritten. "This is a case with some real potential consequences," says Akhil Reed Amar, constitutional law scholar at Yale University Law School. The case, U.S. vs. Emerson, is an appeal of a federal judge's ruling that invalidated a federal firearms law in 1999 because it conflicted with what the judge called the "individual right to bear arms."

Judge Sam Cummings' ruling marked the first time that a federal judge had interpreted the Second Amendment to guarantee an individual right. The case involved a doctor in San Angelo, Texas, who was charged with violating a restraining order.

If the 5th Circuit Court of Appeals upholds the ruling, it is likely to inspire challenges in that circuit, which comprises Texas, Louisiana and Mississippi, and elsewhere. The case likely would be appealed to the Supreme Court, where at least two justices seem to favor the individual-rights argument.

Gun-control advocates are concerned.

"Right now, virtually any gun-control law with a rational basis passes muster," says Dennis Henigan, general counsel of Handgun Control Inc., based in Washington. The group has filed a friend-of-the-court brief that argues against the individual right. If gun possession is found to be a constitutional right, he says, gun laws would be held to "a completely different standard" that could weaken some and cause others to be struck down.

Gun-rights advocates also are leery but for different reasons. Without a comprehensive decision to contradict them, the advocates, especially the National Rifle Association, have argued that the Second Amendment guarantees individuals the right to keep weapons. An adverse ruling, especially from the Supreme Court, would rob them of that rhetorical weapon.

"Everybody (on the gun-rights side) is expressing some anticipation and hesitation," says Stephen Halbrook, a lawyer in Fairfax, Va., who has filed a brief that argues for the individual right. But, he says, "I think we might as well get it on. The law's a building block; you win some, and you lose some. But the idea is to establish some kind of right."

The case began in 1998, when a Texas court placed a restraining order on Emerson during his divorce. This meant that Emerson, who legally owned a 9-mm pistol, automatically was in violation of a federal law from 1994 that aimed to protect women in divorce cases by denying guns to their spouses.

In April 1999, Cummings struck down the federal law. He said it violated an individual's right to possess guns.

In New Orleans, the arguments are likely to focus on the Second Amendment's phrasing: "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." The amendment was approved in 1791.

William Mateja, an assistant U.S. attorney in Lubbock, Texas, will argue that the "plain text" demonstrates that the Constitution's framers intended the right to apply only to state militias, the 18th century equivalent of today's National Guard.

Timothy Crooks, a public defender who represents Emerson, will focus on the way the amendment singles out the right "of the people."

"The Constitution clearly distinguishes between 'the people' and 'the States,' " Crooks wrote in a court brief .

The Supreme Court has considered the Second Amendment only once, in 1939. Then, it returned a case to a lower court to decide whether a sawed-off shotgun owned by a bootlegger could be deemed a militia weapon. The bootlegger was killed in a business-related dispute before the case was completed.

Gun-control foes have argued that this decision placed the court squarely on the side of favoring a militia right, not an individual one. Gun-rights advocates, joined by some scholars, say they are reading too much into the 1939 case. Appeals courts in other federal circuits have not held that the Second Amendment guarantees an individual right.

A three-judge panel will hear the case, with the loser having the option of seeking another hearing before the full appeals court. After that, the case could head to the Supreme Court.