NCPA - National Center for Policy Analysis

Fifth Circuit Court: Second Amendment Guarantees an Individual Right to Bear Arms

October 25, 2001

The Second Amendment to the U.S. Constitution guarantees an individual right to own guns, according to a federal appeals court in New Orleans. The court's opinion came in the case of Emerson v. United States, which has drawn intense national attention from supporters and opponents of gun control.

  • In the ruling by the United States Court of Appeals for the Fifth Circuit, two judges of a three-judge panel wrote that "the Second Amendment does protect individual rights."
  • But the majority opinion added, "that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions."
  • The New Orleans court's ruling sets law for federal courts in Louisiana, Mississippi and Texas.

Courts in other circuits have said the amendment gives only a collective right, such as for state militia units. The U.S. Supreme Court last spoke on the issue in U.S. v. Miller (1939), which upheld the National Firearms Act's prohibition of interstate transport of sawed-off shotguns and of machine guns without government registration or stamped orders.

The Fifth Circuit Court said the Miller decision had been misinterpreted as endorsing the collective view of the right to bear arms, whereas it actually only excludes from Second Amendment protection firearms that have no military or defensive purpose.

Eugene Volokh, a law professor at the University of California at Los Angeles, said the Fifth Circuit Court opinion would lay the groundwork for many other decisions that will analyze when gun control is permitted and when it is not.

Volokh said the ruling gave gun rights the first glimmer of protections like those granted in early free-speech cases to expression. "This is like what free speech rights were in 1930, when the Supreme Court first started to strike down speech restrictions," he said.

Source: William Glaberson, "Court Says Individuals Have a Right to Firearms," New York Times, October 17, 2001; Opinion, U.S. v. Emerson, U.S. Court of Appeals for the Fifth Circuit, Docket No. 99-10331, October 16, 2001, revised October 18, 2001.


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