From: MikePiet@aol.com
Subject: SNET: [piml] ..WSJ article on the Texas 2nd Amend ruling.
Date: 14 Apr 1999 17:54:36 -0400
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..From IP - Wall Street Journal Article on the Texas 2nd Amend ruling.  Mike P




April 12, 1999

Rule of Law

Guns and the Constitution

By Eugene Volokh, who teaches constitutional law at UCLA Law
School.

A federal judge in Texas has just done something no federal court
had done in more than 60 years: On March 30 he held that the
Second Amendment protects people's right to keep and bear arms.
If this decision is affirmed by the Fifth Circuit Court of
Appeals, the case has a very good chance of going to the Supreme
Court, which hasn't yet resolved this issue. And behind the
narrow Second Amendment matter lies a deeper question about the
utility of a written Constitution.

As in many constitutional cases, the defendant--Timothy Emerson,
a San Angelo doctor--isn't the best of fellows. During Dr.
Emerson's divorce proceedings, his wife claimed he had threatened
to kill her lover. The state divorce court apparently made no
findings on this, but entered a boilerplate order barring Dr.
Emerson from threatening his wife.

Though this state order said nothing about firearms, a
little-known federal law bars gun possession by people who are
under such orders. Dr. Emerson not only failed to dispose of his
guns, as the law required, but eventually brandished one in front
of his wife and daughter. He was then prosecuted under the
federal law, though for gun possession rather than gun misuse.

The instinctive reaction here is that Dr. Emerson is the very
sort we'd like to disarm, trouble waiting to happen. But when the
divorce court issued its order, Dr. Emerson hadn't been found
guilty of anything. Had he been convicted of a felony, all agree
he would have lost his right to keep and bear arms as well as his
right to remain at liberty. Here, though, there was no trial, no
conviction, no finding of misconduct or future dangerousness. So
when the federal law barred Dr. Emerson from possessing guns, he
was a citizen with a clean record, just like you and me. Hence
his Second Amendment defense.

The hot constitutional question is whether the Second Amendment
protects only states' rights to arm their own military forces, or
whether it protects an individual right. If the states-rights
view is correct, Dr. Emerson could have been disarmed with no
constitutional worries--and so could anyone else. But the Second
Amendment's text and original meaning pretty clearly show that it
protects individuals. The text, which is reprinted nearby, says
the right belongs to people, not states. And in the Bill of
Rights "the right of the people" refers to individuals, as we see
in the First and Fourth Amendments.

Moreover, the Second Amendment is based on the British 1688 Bill
of Rights and is related to right-to-bear-arms provisions in
Framing-era state constitutions. The British right must have been
individual; there were no states in England. Same for the state
constitutional rights; a right mentioned in a state Bill of
Rights, which protects citizens against the state government,
can't belong to the state itself. So in the Framing era, the
"right to bear arms" meant an individual right.

What about the militia? The Second Amendment secures a "right of
the people," not of the militia; but in any event, as the Supreme
Court held in 1939, the Framers used "militia" to refer to all
adult able-bodied males under age 45. Even today, under the 1956
Militia Act, all male citizens between 18 and 45 are part of the
militia. (Women are probably also included, given the Supreme
Court's sex-equality precedents.) "Well-regulated militia" in
late 1700s parlance meant the same thing--"the body of the People
capable of bearing Arms," which is how an early proposal for the
amendment defined it. And the individual-rights view is the
nearly unanimous judgment of all the leading 1700s and 1800s
commentators and cases.

Based on this evidence, federal Judge Sam Cummings concluded Dr.
Emerson's gun possession (though not his gun misuse) was
constitutionally protected. If the Second Amendment is to be
taken seriously, then Judge Cummings was right, and the other
lower court cases holding the contrary were wrong.

If, that is, the Second Amendment is to be taken seriously. The
notion of a written, binding Constitution tells us it should be,
but cases like this lead some to wonder. Why, they ask, should
today's decisions be bound by the dead hand of the past? If we
have a "living Constitution" onto which courts may graft new
rights, why can't they prune away obsolete ones?

These are genuinely tough questions, which go far beyond just the
Second Amendment, and which have been raised in past
controversies by conservatives as well as liberals. Let me give a
few responses.

First, government entirely by the sometimes hyperactive hand of
the present also has flaws. The benefits of liberties, however
real, are often less visible than the costs. When we see Dr.
Emerson before the court, accused of making violent threats, it's
tempting to treat the right to possess guns as a nuisance. But we
don't as easily see the hundreds of thousands of people who use
guns each year in self-defense, including separating spouses who
defend themselves against would-be abusers.

Second, modern innovations that restrict traditional liberties
are often oversold. Realistically, people willing to violate laws
against violent crime will rarely be deterred by laws against gun
possession. Conversely, if Dr. Emerson is the poster child for
why some shouldn't have guns, he is equally an example of how the
law could effectively punish people for misusing guns (by
brandishing them in a threatening way) rather than just for
having them. Maybe ignoring the Constitution is neither so
valuable nor so necessary.

Third, while some think gun rights are "obsolete," others
disagree. Since 1970, 15 states have enacted new state
constitutional rights to bear arms or strengthened old ones; 44
constitutions now have such provisions. In the mid-1980s, nine
states let pretty much all law-abiding adults get a license to
carry concealed weapons; now the number is 31. A conclusion that
the right is obsolete thus doesn't rest on any unambiguous
consensus; it can rest only on the judge's personal policy
preferences. Do we trust judges that much?

And finally, do we trust judges to determine when other
provisions--the Establishment Clause, the privilege against
self-incrimination, the jury trial, the freedom of speech--become
obsolete, too?


NOTICE: In compliance with Title 17 U.S.C. section 107, this
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for non-profit research and educational purposes only. For more
information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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******************
Somebody once said that a liberal's worst nightmare was 
a self-employed American with a 401K pension,  because he 
didn't want anything from the government except to be left 
alone.  A self-employed person with a 401K and a concealed 
carry permit will need the government even less.  

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