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Tuesday, May 28, 2002

Supreme Court Heads for Second Amendment Showdown

by The Independent Institute

Although the future of civil liberties is uncertain in the wake of post-9/11 anti-terrorism legislation, the Second Amendment right of individuals to possess firearms is stronger than it has been in years, thanks to new scholarship and a few important recent court decisions. Friends of individual liberty and self-defense should embrace this trend.

Last October, a U.S. Court of Appeals ruled in favor of law-abiding gun owners, holding that "The Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons regardless of whether the particular individual is then actually a member of a militia."

This outcome was far different from that sought by gun-control advocates who have held that the Second Amendment protects only a collective right of a militia to keep and bear arms, and whose ethos has animated a host of anti-gun measures in recent decades. What accounts for the courts' new respect for the individual-rights interpretation of the amendment?

One reason, perhaps, is that people increasingly recognize that the government has done a poor job at protecting law-abiding citizens from criminals; a right to self-defense makes sense to more people when government failure has become plainly visible to all.

Another, more tangible, reason is that the Founding Father's views on the individual right to hold firearms are finally being heard in legal cases.

The Founders' intent was hardly ambiguous. James Madison praised "the advantage of being armed, which the Americans possess over the people of almost every other nation." Thomas Jefferson proposed that in Virginia "no free man shall ever be debarred the use of arms." And George Mason, who opposed ratification of the Constitution unless a Bill of Rights was added, said that "to disarm the people is the best and most effectual way to enslave them."

"To the framers, it was simple enough," writes Second Amendment expert Stephen P. Halbrook (research fellow, The Independent Institute) in a new op-ed. "Recognition of the right of all law-abiding persons to have firearms would promote a militia, which is superior to a standing army for protection of liberty. Promotion of the militia was a serious federal purpose, but the right was not limited to militia use."

A legal showdown between the individual-right and collective-right interpretations of the Second Amendment is soon expected in United States vs. Emerson, a case pending before the U.S. Supreme Court. Will justice and the U.S. Constitution prevail? Stay tuned.

RELATED INDEPENDENT INSTITUTE LINKS

See The Constitution Protects Each American's Right To Own a Firearm by Stephen P. Halbrook (SAN DIEGO UNION-TRIBUNE, May 19, 2002)

THAT EVERY MAN BE ARMED, by Stephen P. Halbrook (New Edition, The Independent Institute, 2000)

Transcript of Guns and Violent Crime, an Independent Policy Forum featuring Joyce Lee Malcolm and Don B. Kates, Jr. (September 21, 1999)

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