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The First Federal Appeals Court Decision to Recognize an Individual Right to Bear Arms?

That was United States v. Emerson, a Fifth Circuit decision from a few years ago, which got plenty of press. But apparently that decision somehow vanished in time for the New York Times' coverage of the D.C. Circuit decision recognizing an individual right to bear arms. The Times Web site front page blurbs the article as:

The decision today was the first from a federal appeals court to hold that the Constitution gives individuals, not just state militias, the right to bear arms.
Now these short blurbs are necessarily oversimplifications, and sometimes err. But here it largely echoes the article, which begins:
A federal appeals court in Washington today struck down on Second Amendment grounds a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.

The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.

But if you think the circuit headcount is important enough to mention in the second sentence, shouldn't you mention that the D.C. Circuit's constitutional interpretation had been accepted by one other federal appeals court? True, that earlier decision upheld the gun control law despite its conclusion that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias. Still, the paragraph makes it sound like the individual rights theory was entirely unprecedented, which it certainly is not.

After all, wouldn't you interpret "has been rejected by nine federal appeals courts" as a statement that the theory has been rejected by nine and accepted by none, as opposed to that it has been rejected by nine and accepted by some unspecified number? And if reasonable readers would do that, shouldn't the Times try to avoid misleading them this way? Either don't do the head count, or state it completely.

In the very last paragraph, the article does say that "Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias — in modern terms, the National Guard." That might seem like a (belated) acknowledgment that not all federal appeals courts that had considered the issue had adopted the collective rights theory, even before this decision. Even on its own, though, it is both belated and ambiguous — given what the article had said earlier, "most" might well be read as meaning "all but this one."

But what that sentence might possibly give in terms of clearing things up, the very next sentence (the last sentence in the piece) takes away, repeating and exacerbating the problem in the second paragraph and in the blurb:

But in yesterday's decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars.

Doesn't that last clause implicitly assert that the Justice Department and some constitutional scholars are the most authoritative bodies to adopt the individual rights view, and implicitly suggest that the view hadn't been accepted by courts? Again, wouldn't it have been less misleading to say "an approach that has been embraced by the Justice Department, by some constitutional scholars, and by the United States Court of Appeals for the Fifth Circuit"?

(If the Times really wanted to paint an accurate picture, it could also have noted that the approach had been accepted the courts in several states, which the D.C. Circuit majority expressly cited; but that might not be well-known to legal journalists, even ones who write about the Second Amendment — the existence of the Emerson Fifth Circuit decision should be well-known to such journalists.)

Thanks to Dan Schmutter for the pointer. (Note that I've reworded the post since I first put it up, chiefly to make it more readable, but also to note the front-page blurb, which I didn't at first see.)

UPDATE: The Times has corrected its front-page blurb to read "Advocates of gun rights said the decision raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners"; and it has added a fourth-to-last paragraph that acknowledges Emerson: "The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."

Let's recall Emerson: It was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 -- over 40 pages -- discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace[] the individual-rights view of the Second Amendment," a conclusion that the New York Times labels "an aside." (For more on why the reasoning isn't dictum, see here and here; but it surely isn't an aside.)

So Emerson did rule, as the Times now acknowledges near the end of the article, that the Second Amendment secures an individual right. Yet the Times article's second paragraph still reads, "The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation." Again, why mention the nine other federal appeals courts here, and not mention the Fifth Circuit's acceptance of the individual right interpretation as well?

Likewise, several paragraphs down (and several paragraphs before the acknowledgment of Emerson), the article says, "The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars"; again, why the mention of the Justice Department and some scholars with no mention of the Fifth Circuit? Much as I like to think our scholarly views are authoritative, surely a court decision is more authoritative -- so that if all that's mentioned is the Justice Department and scholars, readers could reasonably infer that this is the best that the D.C. Circuit had on its side. Not very good work on the Times' part, it seems to me.

M. Stack (mail):
Professor Volokh says "Hmm — if you're going to count circuits, wouldn't it make sense to mention that the court's constitutional interpretation had been accepted by one federal appeals court, the Fifth Circuit in the Emerson case?"

You would think the Times would have known this. But, then again, it is the Times we are talking about. If it doesn't suit their political agenda, they would rather presume to just leave it out.

Professor Volokh, don't you think this case will surely be granted certiari by the Supreme Court?
3.9.2007 6:43pm
Barry Sanders 20:
This article is precisely why this issue will be in play throughout the political season. This is gay marriage part II.
3.9.2007 6:43pm
A. Zarkov (mail):
Even worse is the statement
"We've been making progress on bringing down crime and gun violence, and this sends us in a different direction," Ms. Singer said."
which asserts that gun laws reduce violence and that a lack of gun laws will increase violence. No comment as to the validity of this statement.
3.9.2007 6:51pm
A Law Unto Himself:
I don't suppose it's possible that the New York Times has and agenda...
3.9.2007 7:01pm
anonVCfan:

If the Times really wanted to paint an accurate picture, it could also have noted that the approach had been accepted the courts in several states, which the D.C. Circuit majority expressly cited; but that might not be well-known to legal journalists, even ones who write about the Second Amendment — the existence of the Emerson Fifth Circuit decision should be well-known to such journalists.


I'm curious about how many "legal" journalists read court opinions on which they report, and how many are capable of understanding the opinions they read. The cynic in me says not very many.
3.9.2007 7:02pm
rc:
or even better: ""an approach that has been embraced by the Justice Department, by some constitutional scholars, and www.volokh.com. Need we say more?"
3.9.2007 7:20pm
A. Zarkov (mail):
For 2000-2005 the DC murder rate (events per 100,000) were as follows: 43.9, 31.5,46.0, 49.1, 40.1, 30.2. This certainly looks like the murder rate has dropped for the last four years. However DC has been undergoing gentrification, so one would expect a drop in the overall homicide rate. But look at the 7th District. The number of murders 2001-2005 was, 61, 59, 65, 55, 63. These numbers average out to about 60, and we can say no trend for the 7th District. I don't think that gun laws can take any credit for the recent lowering the overall murder rate in DC.
3.9.2007 7:37pm
M. Lederman (mail):
Not that any of this matters in the slightest, but "all" that happened in Emerson is that two judges of the Fifth Circuit opined in dicta that the Second Amendment secures an individual right -- and then gave that "right" almost no substance whatsoever, bending over backward to say that virtually (if not quite) every kind of gun-control measure in existence was constitutional, including of course the regulations at issue in Emerson itself.
3.9.2007 8:11pm
Shelby (mail):
A. Zarkov: Why are the 7th District's numbers particularly significant?
3.9.2007 8:24pm
MS (mail):
Marty,

Easy there professor. Let's not make the second-amendment debate any less honest than it already is. Two Judges? There was a petition for rehearing en banc. Do you doubt that the case was, in fifth-circuit lingo, enbancworthy? Of course not. Then you know that a majority of the active judges on that court agreed with panel.
3.9.2007 8:52pm
A. Zarkov (mail):
Why are the 7th District's numbers particularly significant?

That's a good question. Since historically that's been a high crime district, I'm assuming it has not gentrified. If that's wrong, someone please speak up. If gun control has been the driving factor in reducing homicide as Miss Singer implies, then why don't we see a downward trend in the high-crime districts? It seems to me that the small drop we see in the overall homicide rate is more driven by changing neighborhood demographics than anything else.
3.9.2007 8:59pm
juris_imprudent (mail):
If the Times really wanted to paint an accurate picture

Yes, and if my aunt Harriet had balls she'd be my uncle. Why would America's answer to Pravda be interested in accuracy?
3.9.2007 9:11pm
Dick Schweitzer (mail):
Do we not all understand why the NYT has two classes of stock, family control, etc.; plus a recent track record of false reporting, etc. Falling ad revenues, etc.
NYT has journalists, not reporters (as a rule, practically all of whom aspire to be "writers."

The "agenda" will change eventually. But it's there as noted above.
3.9.2007 9:25pm
Eugene Volokh (www):
Marty: Emerson was dictum if you think Everson's decision about incorporation is dictum, Strickland's accepting a right to effective assistance of counsel is dictum, Jackson v. Virginia's conclusion that convictions may be reversed under Due Process Clause for insufficiency of the evidence is dictum, and Korematsu's conclusion that federal race classifications are subject to strict scrutiny is dictum. (See here and here for more.) This is to say that under modern practices, it isn't dictum.
3.9.2007 9:29pm
M. Lederman (mail):
Well, Eugene, I said that it did not really matter. Obviously, unlike most dicta, the discussion in Emerson was not offhanded; it was extensive, and very deliberate. Nevertheless, it did not amount to anything because nothing turned on it; and so if another case arose in the Fifth Circuit, either in a district court or in the court of appeals, the 85 pages of individual rights rhetoric would have little if any stare decisis effect. Indeed, what would be "binding" on the next court would be the holding in Emerson that gun-control regs are generally constitutional, whatever one thinks of the individual vs. collective debate.

Of course it's entirely possible that a majority (or close to it) of the entire CTA5 would agree with the Emerson panel on the abstract question. But it was awfully abstract, because nothing appeared to turn on it.

Honest, I don't really mean to be saying much here, other than that today's decision does strike me as quite groundbreaking (as the NYT suggests), in a way that Emerson wasn't, in that it's the first decision within memory that actually affects gun control regulation, something Emerson didn't really do.
3.9.2007 9:49pm
Brooks Lyman (mail):
As for the practical aspects of the decision, we'll have to wait, as I suspect that the DC government is going to try to take this to the Supreme Court.

And then we'll probably have to wait for some indefinite period while the DC Government drags their heels in every conceivable fashion to avoid issuing handgun registrations/licenses. Such things as allowing the police chief "discretion" in issuance, requiring that applicants show a "compelling need" for a gun (how about "I live in DC, the murder capital of America?"), absurdly high license/registration fees and just plain old foot-dragging.

Welcome to Massachusetts, DC!

Last year, after a lot of work by GOAL (Gun Owners Action League), the legislature passed a law allowing target pistols (such as expensive, Olympic-class guns, custom target pistols and so forth) to be sold in the state without having to run 5 (five) guns through an expensive and destructive "drop test" which the 1998 gun law amendments required.

You drop a cocked gun onto a concrete floor from a meter up, in every conceivable orientation; it must not fire. This is fine for a defensive gun which one might expect could be dropped or banged around, but for a Swiss-watch-precision, hair-trigger target pistol? That's why there are basically no target pistols available in Massachusetts...

Well, the amendment was passed and signed by Governor Mitt Romney about 6 Months ago; to date, the designated bureaucrats have not even put together the regulations for determining just what a target gun is, not to mention the required list of such target guns that Massachusetts gun dealers will be allowed to sell.

Needless to say, GOAL is disgusted and is now pushing an amendment to delete all the testing, etc. language from the law. Anyone want to take bets on whether the deletion amendment gets into the statute books before the bureaucrats get their tails in gear on the regulations and the list?
3.9.2007 10:37pm
Eugene Volokh (www):
Marty: So Everson's incorporation of the Establishment Clause -- dictum? Strickland's and Jackson's recognition of the rights to effective assistance of counsel and to relief from verdicts based on insufficient evidence -- dictum? Korematsu's holding that strict scrutiny is applicable to federal racial classifications -- dictum?
3.9.2007 11:17pm
M. Lederman (mail):
Eugene: In those cases, it was the Supreme Court speaking, and what it said would, if followed, have a tangible impact on many laws. (Although in the case of Everson, the one I know best, the strong dicta actually did not have very much of an impact on school aid cases for many years, because of the actual holding in Everson (upholding the aid to parochial schools) -- it was only after 1971, when the Court began to apply that holding in a way that had some teeth, that aid programs became vulnerable.) I think it's very difficult to explain just why Judge Parker was wrong when he wrote:

I choose not to join Section V, which concludes that the right to keep and bear arms under the Second Amendment is an individual right, because it is dicta and is therefore not binding on us or on any other court. The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion. The fact that the 84 pages of dicta contained in Section V are interesting, scholarly, and well written does not change the fact that they are dicta and amount to at best an advisory treatise on this long-running debate. . . . The debate . . . over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation. Nothing in this case turns on the original meaning of the Second Amendment, so no court need follow what the majority has said in that regard.

The important point is not so much that the holding was unnecessary to the judgment in Emerson, but that the holding was so watered down that it would not have an effect on any other laws. After all, the whole theory of the discussion was that the right emanated from the right to form militias, and yet the court concedes, citing Presser, that even a law going to the heart of that activity, one "forbid[ding] bodies of men to associate together as military organizations ... to drill or parade in cities and towns unless authorized by law," would be constitutional!

Here's the crux of my (very modest) point, Eugene: In light of the reasoning of Emerson (not simply the judgment), I doubt there was a single firearms law in the great states of Louisiana, Mississippi and Texas -- local, state or federal --- that would be called into question; nor could we realistically imagine any such law being enacted in those states in our lifetimes that would be constitutionally dubious by virtue of Emerson. (Indeed, a quick Westlaw search reveals that Emerson has not so much as caused any district or appellate federal court in the CTA5 to pause for more than a second before affirming the constitutionality of gun laws in every Second Amendment challenge brought post-Emerson.)
3.10.2007 8:12am
Clayton E. Cramer (mail) (www):

Here's the crux of my (very modest) point, Eugene: In light of the reasoning of Emerson (not simply the judgment), I doubt there was a single firearms law in the great states of Louisiana, Mississippi and Texas -- local, state or federal --- that would be called into question; nor could we realistically imagine any such law being enacted in those states in our lifetimes that would be constitutionally dubious by virtue of Emerson. (Indeed, a quick Westlaw search reveals that Emerson has not so much as caused any district or appellate federal court in the CTA5 to pause for more than a second before affirming the constitutionality of gun laws in every Second Amendment challenge brought post-Emerson.)
Simple reason: those states are unlikely to adopted anything that would qualify as an unreasonable regulation of gun ownership--unlike DC's complete ban on new handguns, and effective ban on using a gun in self-defense in one's home.

There's never been any serious dispute from individual rights scholars that the Second Amendment allows some forms of gun regulation, where such regulations serve a clear public purpose, and the legitimate goals can't be achieved in some manner less restrictive on the right to keep and bear arms.

For example, a ban on carrying guns in your hand in public places would almost certainly qualify as Constitutional (even though the Arkansas Supreme Court actually uphold a law that required handguns to be carried this way--presumably in the hopes that it would cause people to stop carrying guns because of the hazard this introduced).

A gun registration law that cost the registrant nothing would almost certainly be constitutional--although since Haynes v. U.S. (1968) freed convicted felons (but no one else) of this obligation, why bother?

A gun law that prohibited carrying of guns in public that were prone to discharge when dropped might well qualify as a legitimate form of gun regulation.

Certainly, laws banning convicted felons from having guns qualifies. (Although since the ACLU is attempting to get felon voting bans overturned, I'm sure that they would pursue this next.)

But laws that prohibit law-abiding adults with no history of violence or mental illness from owning guns? That's the sort of law that was being challenged here, and that Emerson would force to be overturned.
3.10.2007 11:21am
Clayton E. Cramer (mail) (www):

After all, the whole theory of the discussion was that the right emanated from the right to form militias, and yet the court concedes, citing Presser, that even a law going to the heart of that activity, one "forbid[ding] bodies of men to associate together as military organizations ... to drill or parade in cities and towns unless authorized by law," would be constitutional!
You should actually read Presser and the history that surrounds it. The Lehr und Wehr Verein that was suppressed by Presser was a private, non-governmental organization, formed for the purpose of defending a labor union and their families from oppression by the legally constituted authorities.

While my sympathies are with the unionists in their situation (pretty typical of late 19th century governmental abuse of power), realistically, the Revolutionaries were not taking the position that any and every group of discontented sorts had the legal authority to form an army and go do battle. The militias that fought the Revolution imagined themselves (and with good reason) as representing the legitimate government of the various colonies, and the royal authority as extinct because of royal abuse of that authority.

There's a tension between "the right to revolution" and keeping kooks and malcontents from forming private armies, no question. But Presser is hardly the same situation as banning self-defense with guns, as the DC gun control law effectively did.

While the right to revolution was certainly the primary motivation for adoption of the Second Amendment, it was not the only one. The right to individual self-defense was generally assumed, as you can see from reading Blackstone.
3.10.2007 11:27am
Clayton E. Cramer (mail) (www):

Marty: So Everson's incorporation of the Establishment Clause -- dictum? Strickland's and Jackson's recognition of the rights to effective assistance of counsel and to relief from verdicts based on insufficient evidence -- dictum? Korematsu's holding that strict scrutiny is applicable to federal racial classifications -- dictum?
Any decision that you don't like gets called dictum. For example, Aymette v. State (Tenn. 1840) dismissed Simpson v. State (Tenn. 1833) as "an incidental remark of the judge" who wrote the opinion and claimed that in Simpson "no question as to the meaning" of the Tenn. Const. RKBA clause arose.

But this claim is utterly false. The Simpson decision struck down the conviction not only on the grounds that the common law definition of "affray" did not include the actions for which the defendant was tried, but that even if that had not been the case, the Tenn. Const. RKBA clause gave an express authority to be armed--and that was the action that led to Simpson's charge.
3.10.2007 11:38am
RKM (mail):
"has been rejected by nine federal appeals courts"

This phrase keeps popping up and gets my attention for some reason. Then I realized that the 9th Circuit rejected individual right.

Has someone at the Times overstated their case by saying 9 courts instead of the 9th Court?

Just a thought by an observer.
3.10.2007 1:42pm