Second Amendment interpretation

Gottlieb, Alan M. Gun Rights Affirmed The Emerson Case. Bellevue, Wash. Merril Press, 2001. Recounts the arguments and ruling in a federal district court that for the first time affirmed that the Second Amendment guaranteed an individual right to keep and bear arms. (Note that an appeals court subsequently found against the defendant but left the Second Amendment interpretation intact.)... 

Levinson points out that the Second Amendment debate reveals a curious reversal of conservatives and liberals from their usual positions on civil rights. Liberals interpret tbe rest of the Bill of Rights broadly without worrying too much about tbe social cost of freeing criminals. However, they want to interpret the Second Amendment narrowly because of what they consider to be tbe social costs of gun ownership. Conservatives, on the other hand, often complain about the courts finding new rights in broad interpretations of the Bill of Rights but favor a broader interpretation where the Second Amendment is concerned. 

Levinson urges that the scholarly community begin to take the Second Amendment seriously. Ta some extent, academic opinion has indeed shifted from a collectivist to an individualist interpretation of the Second Amendment. 

The federal appeals court overruled the district court with regard to the action taken against the defendant, but its decision left intact the lower court s conclusions about the Second Amendment. Meanwhile, however, other federal appeals circuits (notably the Ninth) have continued to deny the individual rights interpretation of the Second Amendment. 

This short, rather cryptic decision has been interpreted in two different ways in the continuing debate over the meaning of the Second Amendment. Gun control advocates cite it as clearly stating that the Second Amendment must be interpreted in terms of the militia clause and does not give individuals the right to keep and bear any sort of firearm they want. 

Gun control advocates observe, however, that the Court has not directly revisited the issue of the scope and applicability of the Second Amendment in the more than 60 years since Miller was decided. However, the case of U.S. V. Emerson (1999) does set up a conflict between appeals circuits over interpretation of the Second Amendment. 

The Supreme Court did not take up the Emerson case. If further decisions show a continuing conflict over interpreting the Second Amendment, the Supreme Court might eventually feel compelled to make a final decision. 

Currently only the Fifth Circuit (see U.S. v. Emerson) has upheld an individual right to keep and bear arms in the Second Amendment. If the Supreme Court should eventually resolve the conflict between the circuits in favor of this interpretation, a stricter test would presumably be applied to state gun laws. Of course, some regulations might still pass such scrutiny. 

Written for junior high school smdents, this comprehensive reference is useful for all readers. The four volumes explore the Second Amendment and the debate over its interpretation, the practices of the firearms industry and the movement for safer guns, children as gun users and gun victims, and the development of gun legislation and expressions of public opinion. 

Carmer, Clayton E. For the Defense of Themselves and the State The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms. West-port, Conn. Praeger Publishers, 1994. Explores the conflict between the original intent of the Second Amendment, well established by scholarship as conferring an individual right to keep and bear arms, and the judicial interpretation of the Supreme Court and most other courts that have pre-... 

Cottrol, Robert J., ed. Gun Control and the Constitution Sources and Explorations on the Second Amendment. New York Garland Publishing, 1994. Collects historical and legal material that illuminates many facets of the gun control debate in terms of the intent and interpretation of the Constitution, original intent versus broad interpretation, and the political philosophy of republicanism. 

Sprigman, Chris. This Is Not a Well-Regulated Militia. Open Forum, Winter 1994, n.p. Reviews Supreme Court cases and concludes that the Court has interpreted the Second Amendment as protecting state militias, not as an individual right to bear arms. Sprigman cites United States V. Miller (1939) and argues that the militia concept is probably not relevant to modern America. 

Note Following are excerpts from the fall decision. Because of their relevance to gun control issues, the excerpts focus on issues relating to the interpretation and application of the Second Amendment to the U.S. Constitution. Footnotes have been omitted. 

In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals rather, it merely recognizes the right of a state to arm its militia. This states rights or collective rights interpretation of the Second Amendment has been embraced by several of our sister circuits. The government commended the states rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens. 

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. Id. at 818. 

We turn now to the Second Amendment s preamble A well-regulated Militia, being necessary to the security of a free State. And, we ask ourselves whether this preamble suffices to mandate what would be an otherwise implausible collective rights or sophisticated collective rights interpretation of the amendment. We conclude that it does not. 

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