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Home  News News Court Shoots Down Collective Rights Theory
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Court Shoots Down Collective Rights Theory |
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Written by bigpig
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Wednesday, 14 November 2001 |
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Page 1 of 2 GOA sent us this release, "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." read the rest by clicking below.
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Court Shoots Down Collective Rights Theory
by John Velleco
Director of Federal Affairs
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 (acknowledging that the Second Amendment is an individual right, but that it can be abridged by a compelling government interest) most of the attention subsequent to the ruling focused on the strong statement made by the Court acknowledging that the right to keep and bear arms applies to individuals.
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.
In its discussion of the phrase "the people," 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.
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:
""[T]he 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.""
Noted Second Amendment attorney and scholar Don B. Kates wrote in a 1983 article that the Framers were unequivocal 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 house of cards that is the states' rights model of the Second Amendment can hardly withstand the winds of many more Emerson decisions.
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