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Friday, February 1, 2002

Split Decision

The Right to Keep and Bear Arms Is an Individual Right

The Second Amendment’s affirmation of the right to keep and bear arms applies to individuals, not collectives. Anyone who can read plain English already knew that. But now we have a U.S. appellate court saying so. That can’t hurt.

The October ruling of a three-judge panel from the Fifth Circuit Court of Appeals grew out of the Texas case of Timothy Joe Emerson. Dr. Emerson was going through a divorce and was subject to a temporary restraining order. Federal law forbids anyone subject to a restraining order from having a firearm. He was charged with violating that federal law. (Emerson was later acquitted of state charges in the incident involving the gun.)

In 1998 Emerson challenged the law, and federal District Court Judge Sam R. Cummings declared it unconstitutional on grounds that constitutional rights are too important to be abrogated by so casual a means as a “boilerplate” restraining order in a divorce action. To support his finding that the right at issue belongs to individuals, Judge Cummings engaged in a lengthy scholarly disquisition on the history and philosophy of gun ownership and the Second Amendment. The Clinton Justice Department appealed, arguing that the Second Amendment referred not to individuals but to states and their organized militias, or national guards. (For more on the case, see my “The Big One?” in the October 2000 issue.)

This set the stage for the appellate ruling and opinion. (The opinion can be found at the Second Amendment Foundation Web site,

The ruling essentially answered two questions: is the law that Emerson was charged under constitutional and does the Second Amendment protect an individual right? On the first, all three judges upheld, against Emerson, the law forbidding guns to those who are subject to restraining orders. (More on that below.) But two of the three judges endorsed Judge Cummings’s position that gun rights are individual rights.

In arguing for an individual right, the judges establish that the 1939 U.S. Supreme Court case, U.S. v. Miller, which the gun controllers depend on, fails to support the government’s contrary position. Miller in no way hinged on whether the defendants were members of the national guard. In fact, the justices specifically noted that at the time of the framing of the Constitution, the militia was considered to consist of “all males physically capable of acting in concert for the common defense.”

Thus the Fifth Circuit judges have authoritatively pulled away a key pillar in the gun controllers’ case. The Supreme Court has never held that the right to keep and bear arms is something other than an individual right. The judges also demolish the claim that the term “the people” in the Second Amendment means something different from what it means in the rest of the Constitution: “It appears clear that ‘the people,’ as used in the Constitution, including the Second Amendment, refers to individual Americans.” Further, they dispose of the argument that the amendment’s preamble, “A well-regulated militia being necessary to the security of a free state,” implies a collective right. They point out that the preamble is fully consistent with the individual-right interpretation: “We conclude that the Second Amendment’s substantive guarantee, read as guaranteeing individual rights, may as so read reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that ‘well-regulated Militia’ which is ‘necessary to the security of a free State.’”

The judges then follow up this logical argument by doing what Judge Cummings did before them. They delve into the historical record and conclude: “We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it 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.”

A Turn in the Wrong Direction

At this point, I fear, the judges’ opinion takes a turn in the wrong direction; for while they find that the Second Amendment sanctions an individual right, they go on to say that the federal law at issue–forbidding people subject to restraining orders from possessing guns–is a reasonable limitation on that right. The statute does not violate the Second Amendment, they said, because before issuing a restraining order, a court has to be convinced of a “presently existing actual threat” and the presence of such a threat justifies a reasonable restriction on the right to bear arms. They are satisfied that the judge who issued the restraining order had grounds to be so convinced, even though he made no express findings to that effect nor are any required by the federal statute. It is enough, the judges say, that the statute requires a hearing on the restraining order and that the order explicitly forbade the use or threat of force. They reinstated the indictment. Emerson will have to stand trial, unless his planned appeal to the U.S. Supreme Court succeeds.

Thus the victory for Second Amendment rights is mixed. As it now stands, at least in the Fifth District (Texas, Louisiana, and Mississippi), individuals have a recognized right to keep and bear arms. Any proposed gun regulation would have to be consistent with that presumption, but in principle such regulations are possible. Who knows what regulations judges might find consistent with the right to keep and bear arms? Courts have been too willing to defer to legislative discretion in the past.

The Fifth Circuit judges have embraced the view that gun rights can be subject to exceptions, despite the categorical language of the Second Amendment (“the right to keep and bear arms shall not be infringed”). But can a right be subject to exceptions defined by legislatures and still be a right? As Jeff Snyder wrote in “Rights Without Exceptions” (Ideas on Liberty, May 2001): “A right, to be a right, must be absolute, that is, subject to no exceptions and held or respected as an end in itself, not as a means to some other end. Otherwise, it does not stand outside and above the law, but becomes subject to it, a mere creature of legislative action, majority rule, and the peripatetic opinions of judges. If the right is not absolute, you absolutely have no right.”

A standard reaction might be that surely in the name of public safety, a legislature can devise reasonable regulations regarding the possession of guns. Snyder responds: “The concept of ‘public safety’ has no inherent limiting principle that establishes its outer boundaries.” Thus, an innocuous-sounding principle becomes a means for denaturing a natural right.

  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.