#30 Winter 2001


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By James McCrory

United 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.

The Second 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.”

There are 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.

The individual rights school begins with a grammatical point: the opening clause of 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 be infringed."

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 right to bear arms.

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In United States v. Emerson a temporary restraining order, a form order, was issued to enjoin Emerson from doing various things including making threatening communications or actual attacks upon his wife during divorce proceedings. At a hearing for the temporary order Mrs. Emerson alleged that Emerson had threatened to kill the man with whom she had been having an adulterous affair. Mrs. Emerson 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 a 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 for 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.

The basis of the Court's decision was an historical analysis of the Amendment. It began 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 that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."9 In the debate on the Constitution in Virginia, Zachariah Johnson assured the convention their liberties would be safe because, "the people re not to be disarmed of their weapons."10 James Madison assured that there is no need to fear the government because of "the 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

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Based on 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

The court 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 to government 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 in the Second Amendment.

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

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Many gun 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 argued by liberals.19 Also, context is always relevant but often not considered. It may be proper to prohibit guns in some circumstances but not others. For example, convicted felons are not permitted to possess guns. Finally, since the sole purpose of government is to protect individual rights,20 those seeking to restrict guns bear a heavy burden.

(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:

1. 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 of Appeals.

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 here.

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.

8. Malcolm, 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.

16. Sanford Levinson, "Is the Second Amendment Finally Becoming Recognized As Part of the Constitution?" Voices From the Courts, 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 the abridgement of property rights and the elimination of a right to bear arms; but we should not pretend that these are not reductions of rights."

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]

18. The 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 Press 1998.

20. Ayn Rand, "The Nature of Government" in Capitalism: The Unknown Ideal.

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About a year ago, the United States was in the middle of a primary election. The centerpiece 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."

Despite its 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 requirements mid-campaign."

Fear that 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 regulations unconstitutional.

Fear that 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."

In response, 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 PG-rated movies."

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

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sea level. 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.

Mr. Thoburn refused. As a result, on February 16, he was sent to jail. After 97 days, the judge ordered him freed but gave the 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."

An interesting aspect of the case is the nature of the press coverage. An article in 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


1. A large dirt wall. Mr. Thoburn's required 5,000 truckloads of dirt.

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.