NCPA - National Center for Policy Analysis

Gun Debate Shifts To Courts

August 27, 1999

For the first time, legal observers say, a federal judge ruled in April 1999 that the Second Amendment to the Constitution guarantees an individual's right to own a gun. If that decision is upheld, hundreds of gun-control laws could be struck down.

An appeal of the decision begins today with the filing of briefs in the case, U.S. vs. Emerson. The process will take place before the Court of Appeals for the fifth circuit in New Orleans -- with arguments commencing as early as next January or February.

  • The case arises from a domestic dispute, when a San Angelo, Texas, court put a restraining order on a gun- owning husband involved in a divorce suit, since federal law bars gun ownership by people under such orders.
  • The U.S. District Court judge ruled that the federal law is unconstitutional because it is an infringement of the "individual right to bear arms" guaranteed in the Constitution.
  • The Second Amendment states: "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."
  • Gun control advocates and firearms rights supporters read that language and reach radically different interpretations.

Legal scholars say the key to the controversy is the word "militia." Gun control proponents say it covers only the purpose of maintaining a militia; firearms rights advocates say that when the Framers talked about the militia, they were talking about the people, such as those who stood at Lexington and Concord to resist the British army.

America's courts have so far had little to say about the debate.

Source: Richard Willing, "Testing the Right 'to Keep and Bear Arms,'" USA Today, August 27, 1999.


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