#30 Winter 2001
l IS THERE
AN INDIVIDUAL RIGHT
TO KEEP AND BEAR ARMS?
l FREE SPEECH
2001 Page 1
THERE AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS?
By James McCrory
States v. Emerson1 is an important Second Amendment case.
The court found that there is an individual right to keep and bear
arms protected in the Second Amendment.
Amendment states that: "A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
two schools of thought on this Amendment: the "states'
rights" or "collective rights" school and the "individual
rights" school. The first says that, since the Amendment was
intended to protect militias, the right belongs to the state; the
second says the right is a personal, individual right that exists
independently of militia.
The "collective rights" school
cites the opening phrase of the amendment to support their position.
Because the militia
is necessary to a free state, people may keep guns but only for
the purpose of militia use; consequently, if a militia were to
become unnecessary, the right to keep guns would likewise end.
This argument has been adopted in a number of federal court opinions.
Some members of this school take the next step: the rise of the
National Guard has rendered the militia unnecessary, and the Second
Amendment is therefore an anachronism.
rights school begins with a grammatical point: the opening clause
the Amendment concerning the militia is subordinate
and the second clause is independent. If the amendment truly meant
what the collective rights school says, it would be phrased, "A
well regulated Militia, being necessary to the security of a free
State, the right of the States to keep and bear Arms, shall not
Although several of the Circuits of the US Courts of Appeal2 have ruled in favor of the "states' rights" school,
the United States
Supreme Court has never ruled directly on the issue.3
The only modern
Supreme Court Second Amendment case is United States v. Miller,4
in which the court upheld a conviction
for illegal possession of an unregistered sawed off shotgun over
a Second Amendment claim. It reasoned that a sawed off shotgun
was not "part of ordinary military equipment or that its
use could contribute to the common defense." The court in
Miller avoided the real issue and did not decide the
question whether the Second Amendment protects an individual
2001 Page 2
States v. Emerson a temporary restraining order, a form order,
was issued to enjoin Emerson from doing various
making threatening communications or actual attacks upon his
wife during divorce proceedings. At a hearing for the temporary
Mrs. Emerson alleged that Emerson had threatened to kill the
man with whom she had been having an adulterous affair. Mrs.
was represented by an attorney but Mr. Emerson was not. Neither
the court nor anyone else told Emerson that the order would
bring into operation a federal law preventing him from possessing
firearm. Later Emerson brandished a firearm in the presence
of his family.
He was prosecuted for possession of a firearm in violation
of the statute.5 It is important to note that he was not prosecuted
the real crime of brandishing a firearm.
The Federal District Court dismissed the charges. The case is
currently in the Fifth Circuit Court of Appeals.
of the Court's decision was an historical analysis of the Amendment.
its analysis in 690 A.D. when Englishmen
were required to possess arms---first to serve in the military
and later to provide police services. In the seventeenth century
the English government began to reduce the right to bear arms.
But in 1689, Parliament passed the English Bill Of Rights which
included a precursor to the Second Amendment: "the subjects
which are Protestant may have arms for their defense suitable to
their conditions and as allowed by law."6 The English government
pledged to those considering moving to the colonies that they would
continue to possess "all the rights of natural subjects as
if born and abiding in England."7
At the time
of the ratification of the Constitution, there was a strong feeling
that an armed populace was a defense against tyranny.
Noah Webster argued: "Before a standing army can rule the
people must be disarmed; as they are in almost every kingdom in
Europe."8 Patrick Henry eloquently argued for the
dual rights to arms and resistance to oppression, "Guard with
jealous attention the public liberty. Suspect everyone who approaches
jewel. Unfortunately, nothing will preserve it but downright
force. Whenever you give up that force, you are ruined."9
debate on the Constitution in Virginia, Zachariah Johnson assured
the convention their liberties would be safe because, "the
re not to be disarmed of their weapons."10 James
Madison assured that there is no need to fear the government because
advantage of being armed."11
In the Constitution
ratification debates in 1788 various amendments offered by states
support the individual right approach. The Pennsylvania
convention debated an amendment which read in part: "That
the people have a right to bear arms for the defence of themselves
and their own State, or the United States, or for the purpose of
killing game; and no law shall be passed for disarming the people
or any of them, unless for crimes committed, or real danger of
public injury from individuals
. . . ."12 Samuel Adams proposed that the Constitution "[B]e
never construed to authorize Congress to infringe the just liberty
of the press, or the rights of conscience; or to prevent the people
of the United States, who are peaceable citizens, from keeping
their own arms. . ."13 The New Hampshire convention proposed
an amendment on freedom to bear arms which read, "Congress
shall never disarm any Citizen unless such as are or have been
in Actual Rebellion."14 James Madison drafted an amendment
intended to be unexceptional and so likely to win approval. It
later was revised to become the Second Amendment. It read, "The
right of the people to keep and bear arms shall not be infringed;
a well armed, and well regulated militia being the best security
of a free country: but no person religiously scrupulous of bearing
arms, shall be compelled to render military service in person."15
Winter 2001 Page 3
this historical analysis, the Emerson court dismissed
the case. It then noted that some argue that the "social costs" today
outweigh original intent so that society would be better off to
give up any right in the Second Amendment. The answer is that to
take rights seriously requires that one honor them even when there
are costs to do so. Protecting freedom of speech and rights of
accused criminals has significant "social costs" but
cost benefit analysis is not applied to those issues. The court
quotes Justice Scalia that even if there would be "few tears
shed if and when the Second Amendment is held to guarantee nothing
more than the state National Guard, this would simply show that
the Founders were right when they feared that some future generation
might wish to abandon liberties that they considered essential,
and so sought to protect those liberties in a Bill of Rights."16
called it "absurd that a boiler plate state divorce
court order can collaterally and automatically extinguish a law-abiding
citizen's Second Amendment rights, particularly when neither the
judge nor the parties are aware of the penalties for violating
such an order." The court held, "There must be a limit
regulation on lawful firearm possession. This statute exceeds that
limit, and therefore it is unconstitutional." Most important,
the court found that there is an individual right to bear arms
Since the gun control issue is a detail of law and not an issue
of philosophy, there is no Objectivist position.17 However, Objectivist
principles dictate the proper result. One cannot deny any innocent
person his right of self-defense. Where it is not practical to
call the police, one may use reasonable force depending on the
circumstances, and sometimes, use of a gun is necessary. Finally,
gun control laws are improper as preventive laws because they prohibit
possession of a gun merely because the gun might be used wrongly.18
Winter 2001 Page 4
control arguments are rationalistic in that they are deductions
from apparently valid premises but are disconnected from reality.
One example is that laws allowing citizens to carry concealed
guns, in fact reduce crime rather than increase it as is often
by liberals.19 Also, context is always relevant but often not
considered. It may be proper to prohibit guns in some circumstances
others. For example, convicted felons are not permitted to
guns. Finally, since the sole purpose of government is to protect
individual rights,20 those seeking to restrict guns bear a
(It is important to note how many law review articles and books
that support the finding an individual right in the Second Amendment
were cited in the case---and how many of those were published in
the last ten years. Writers of review articles and books can provide
a rationale that a judge needs. Objectivist writers in the future
can furnish the proper reasoning in future cases by supplying the
scholarly work like that provided in this case.)
References and Notes:
United States v. Emerson, _F. Supp. _ (N.D. Texas 1999). For
the full text of the decision in PDF go to [sorry this link
does not work]. An appeal is pending in the Fifth Circuit Court
2. Those are the 1st, 4th, 6th and 9th Circuits.
3. Emerson raised defenses under the Commerce Clause, 2nd, 5th
and 10th Amendments. Only the Second Amendment will be discussed
4. 307 U.S. 174 ( 1939)
5. 18 U.S.C. § 922(g)(8)
6. David T. Hardy, Armed
Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARv. J. L. & PUB.
POL'Y 581 (1986) (citing 1 John J. Bagley & Peter B. Rowley, A Documentary History of England 1066-1540, at 152 (1965). All
citations are taken from the Emerson opinion.
7. Joyce Lee Malcolm, To
Keep And Bear Arms: The Origins of an Anglo-American Right 2 (1994), at 138.
supra (citing Noah Webster, "An Examination Into
The Leading Principles of The Federal Constitution (1787)",
reprinted in Pamphlets On The Constitution Of The United States,
Published During Its Discussion By The People, 1787-1788, at 56
(Paul L. Ford, ed. 1971) (1888)).
9. Stephen P. Halbrook, That
Every Man Be Armed: The Evolution of a Constitutional Right at 73 (citing 3 Jonathan Elliot, The
Debates in the Several State Conventions of the Adoption of the
Federal Constitution at 45 (2d ed. 1863)).
10. Malcolm, supra at 157 (citing 3 Elliot 646).
11. Don B. Kates, Jr., Handgun
Prohibition and The Original Meaning of the Second Amendment, 82 MICH. L.REv.204, 228 (1983)(quoting
The Federalist No. 46, at 371 (John C. Hamilton ed., 1864).
12. Malcolm supra at 158 (citing Pennsylvania
and the Federal Constitution, 1787-1788, at 422).
13. Malcolm supra citing Debates
and Proceedings in the Convention of the Commonwealth of Massachusetts,
Held in the Year 1788, at
198-99 (Bradford Pierce and Charles Hale, ed., 1856).
14. Malcolm supra at 158-59 (citing 2 Documentary
History of the Constitution of the United States, 1787-1870, it 143 (1894).
15. MALCOLM, supra at 159.
Levinson, "Is the Second Amendment Finally Becoming
Recognized As Part of the Constitution?" Voices From the
1998 BYU L. REv. 127, 132 (1998) (quoting Antonin Scalia, "Common-Law
Courts in a Civil-Law System: The Role of United States Federal
Courts in Interpreting the Constitution and Laws," in A
Matter of Interpretation: Federal Courts and the Law 3, 43 (Amy Gutmann,
ed. 1997). Unfortunately, after making this
strong point, Justice Scalia undercuts it: "We may tolerate
abridgement of property rights and the elimination of a right to
bear arms; but we should not pretend that these are not reductions
17. Harry Binswanger, An Objectivist Question Period, July 13,
2000, audio tape, Second Renaissance Books. [now see The Ayn Rand
bookstore at Links on this web site]
Objectivist Newsletter: Vol. I No. 5---May, 1962, "Check
Your Premises," by Ayn Rand; also see "Objective Law," an
audiotape interview with Ayn Rand.
19. John R. Lott, Jr., More
Guns Less Crime, University of Chicago
20. Ayn Rand, "The Nature of Government" in
Capitalism: The Unknown Ideal.
#30 Winter 2001 Page 5
About a year
ago, the United States was in the middle of a primary election.
of the campaign of one of the candidates
on the Republican side was "election reform". "Election
reform" consists of restrictions on contributions of money
to influence elections. It is based on the belief that the problem
with the American system is that the rich can exert too much influence
by contributing to political campaigns.1 Its essence is: "You
can be heard by too many people; your ability to argue your point
may have an influence beyond the proper. So, shut up."
obvious violation of free speech rights, the press strongly supports
it. The issue is alive nationally at all levels
of Government. On the federal level, the McCain-Feingold bill appears
likely to be enacted in some form. On the local level, the Los
Angeles City Council adopted an emergency ordinance that required
organizations supporting or opposing candidates in the upcoming
election to disclose their efforts. The sole dissent was by a city
councilman who "believed that it was wrong to change reporting
speech may be successful is behind restrictions on advertising
of tobacco products. The announced purpose of these regulations
is to protect children from their influence. It is based on a premise
that children are weak-minded and their parents powerless to controvert
this advertising. The State of Massachusetts has enacted regulations
which, inter alia, prohibit tobacco advertising within 1,000 feet
of any school, park, or playground. In four cities, the prohibited
zone covers over 87%
of the land area. The Supreme Court has recently ruled these
advertising may be successful with children is not limited to
the question of physical harm. The Federal Trade
Commission is pressuring the recording industry to reduce its advertising
of "violence" to children. In a recent report, a follow-up
to a September study, the FTC "largely credited the movie
and video game industries for their effort to stop targeting children
as an audience for adult material." But "The FTC found
that all five major record labels still routinely advertised music
with explicit content"---violent, lurid or obscene lyrics---on
afternoon and early-evening shows popular with teens." The
FTC is concentrating on "two issues: whether adult-rated material
was still being aimed at minors and whether entertainment company
advertisements were clearly displaying the ratings."
the entertainment industry caved in. "We agree
that we need to do a better job of following our own guidelines," said
Hilary Rosen, president of the Recording Industry Assn. of America. "The
movie and video game producers previously caved in. In response
to the September report, they virtually eliminated advertisements
for R-rated movies in popular teen magazines." And "the
FTC also found 'substantial compliance' with Hollywood's promise
to keep trailers for R-rated films out of screenings of G- and
Nor are laws limited to harmful activity. The city of Glendale,
California recently tried to prevent a gas station owner from flying
American flags. It was stopped by public pressure. The genie cannot
be kept in the bottle.
1. For the
reason that this influence is worth so much money, see Ayn Rand, "The Pull Peddlers," reprinted
in The Voice of Reason 260.
To get a permit
which allows him to operate a golf driving range in Reston, Virginia,
Fairfax County required John Thoburn to satisfy
certain requirements. They include walling his business off from
neighboring houses by building a berm1 and planting hundreds of
trees and bushes. This cost $125,000. Then the county insisted
that he hire aerial surveyors and topographical mappers to make
certain that the berm was exactly 365.9 feet above
2001 Page 6
The County also demanded that 98 trees be moved to different
locations despite prior inspections and approvals.
Moving the trees
would require an expenditure of $30,000.
Thoburn refused. As a result, on February 16, he was sent
to jail. After 97 days, the judge ordered him freed but
County permission to landscape Mr. Thoburn's land. The
next day, County officials, gardeners and two policemen went
to the property and planted more than 200 trees. Apparently, the
County plans to charge Mr. Thoburn for the new plantings. According
to the chairman of the zoning board, "[If] trees are planted
on his property it seems to me he'd be responsible . . . . But
I don't know that yet."
aspect of the case is the nature of the press coverage. An article
the Washington Post is sympathetic to Mr. Thoburn---but
not on the basis of property rights. The problem, according to
the article, is "Bureaucratic Legalism." Even if Thoburn
didn't follow the letter of the law, the County officials should
let it slide. The article makes no mention of the rule of law.
This is the natural consequence of non-objective rules. An official
who wants to avoid clear injustices must violate the rules he is
supposed to enforce.2
A large dirt wall. Mr. Thoburn's required 5,000 truckloads of
2. For more
information, see Mr. Thoburn's web site: http://www.freejohnthoburn.com/
Copyright © 2001
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand as the basis of a proper legal system.