Court Shoots Down Collective Rights Theory

In October the Fifth Circuit Court of Appeals in New Orleans handed down a ruling that struck at the heart of an inviolable tenet of the anti-gun movement; that the Second Amendment protects a collective, not an individual, right.

While the Court’s decision, in United States v. Emerson, sent mixed signals (in that while acknowledging the right to keep and bear arms is an individual right, that right can nevertheless be abridged by a supposed compelling government interest) most of the attention subsequent to the ruling focused on the strong statement made by the Court acknowledging the individual right to keep and bear arms.

Dennis Henigan of the Brady Brady Campaign to Stop Gun Violence expressed the group’s disgruntlement with the Court’s decision.

“Clearly, the Fifth Circuit’s finding is an aberration,” bemoaned Henigan.

What got Henigan and others so worked up was that the Court took the “individual verses collective right” debate head-on and came to an inescapable conclusion that will have ramifications far beyond the Fifth Circuit.

Each phrase of the 2nd Amendment was broken down by the Court, but it was the discussion and interpretation of the phrase “the people” that caused the most stir. The Court noted that,

    For the sophisticated collective rights model to be viable, the word ‘people’ must be read as the words ‘members of a select militia.’ The individual rights model, of course, does not require that any special or unique meaning be attributed to the word ‘people.’ It gives the same meaning to the words ‘the people’ as used in the Second Amendment phrase ‘the right of the people’ as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments.

    There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words ‘the people’ have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words ‘the people’ have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, ‘the people’ have ‘rights’ and ‘powers,’ but federal and state governments only have ‘powers’ or ‘authority,’ never ‘rights.’

The ruling in Emerson is consistent with the U.S. Supreme Court ruling in United States v. Verdugo-Urquidez, in which case the majority of the Court wrote that:

    … ‘the people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the People of the United States.’ The Second Amendment protects ‘the right of the people to keep and Bear arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’

This interpretation concurs with that of noted Second Amendment attorney and scholar Don B. Kates, who in his 1983 article Handgun Prohibition and the Original Meaning of the Second Amendment wrote that the collective, state’s right view of the Second Amendment required an “anomalous assumption” that the Framers were equivocal in their use of the phrase “the people.” According to Kates:

    [T]o justify an exclusively state’s right view, the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used ‘right of the people’ in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment’s ‘right of the people’ reverted to its normal individual right meaning; (4) ‘right of the people’ was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished ‘the states’ from ‘the people,’ although it had failed to do so in the second amendment. Any of these textual incongruities demanded by an exclusively state’s right position dooms it. Cumulatively they present a truly grotesque reading of the Bill of Rights.

Supreme Court Justice Antonin Scalia emphasized the same conclusion when he wrote in his 1997 book A Matter of Interpretation that it “would be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated ‘Militia.’ Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that.” [Emphasis in the original]

The ruling, however, was not entirely supportive of the Second Amendment.

In 1998, Dr. Timothy Emerson of Texas, was served divorce papers. In a not uncommon maneuver in the unpleasant process of divorce proceedings, Emerson’s estranged wife also petitioned the court for a restraining order.

Under a 1994 law, persons subject to a restraining order are prohibited from possessing firearms. There is no appeal in such proceedings, which often amount to little more than rubberstamp by a local magistrate.

After being arrested, Emerson’s case was brought before U.S. District Judge Sam Cummings, who issued the now-famous opinion that Emerson’s due process Fifth Amendment rights, in addition to his Second Amendment rights, had been violated.

The Fifth Circuit’s opinion disagreed with Judge Cummings’ ruling on the due process violation, but in order to do so had to agree that there was, in fact, an individual right to be violated in the first place.

Timothy Emerson was not convicted of any crime before losing his gun rights, something the Court, albeit tepidly, agreed with. So while gun owners celebrate the acknowledgment of an individual right, the fact that a court at the same time ruled that such a right could, under certain circumstances, be infringed is unsettling.

John Velleco is the Director of Federal Affairs for Gun Owners of America.