Jewish World Review Oct. 22, 2001 / 5 Mar-Cheshvan, 5762

Jules Witcover

Jules Witcover
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Consumer Reports

Split decision on gun rights -- BOTH sides in the fight over the constitutional right to bear arms are claiming victory in a federal appeals court decision in Texas that says there is an individual right to own a gun, but that limitations can be placed on it.

The gun lobby, headed by the National Rifle Association, is pointing to the 2-1 decision as affirmation of its view that the Second Amendment bestows the right on a personal basis rather than only collectively. The gun-control organizations, on the other hand, are touting the part of the decision that underscores the validity of laws that put restraints on the right to bear arms.

The two judges found that while "the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions."

The decision is only the latest chapter in a running argument over what the founding fathers meant when they wrote 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."

The NRA says it means the right is absolute. But groups like the Brady Center to Prevent Gun Violence argue that the specific reference to a militia means only a collective right for the protection of the state was the founders' intent.

The NRA's chief lobbyist, James J. Baker, says "the court's clear rejection of 'collective rights' theories should put an end to further politically charged efforts by special interest groups to undermine the clear intent of our founders as expressed in the Bill of Rights."

But according to Dennis Henigan, legal director of the Brady Center, the Texas decision goes directly against the interpretation of all other federal appellate courts that have taken up the controversial issue. He insists the NRA "must be very frustrated" because the ruling says that even if there is an individual right to bear arms - which the Brady Center does not concede - the restrictions the NRA opposes have also been declared legal.

The Texas case is a civil matter involving a doctor charged with violating a restraining order against carrying a gun in a domestic violence case. While declaring gun ownership an individual right, the court ruled he can be tried for violating the order. It sent the case back to the lower court for trial.

The individual-right argument has been the keystone of the NRA's defense of the right to bear arms, and the ruling theoretically could jeopardize local laws in certain towns and cities in the North, notably several in Chicago suburbs, that flatly ban handgun ownership. But the decision in the Fifth Federal Circuit covers only Texas, Louisiana and Mississippi, where laws banning handguns are scarce, if not nonexistent.

The more prevalent kinds of gun-control laws, Henigan says, are those in which "limited, narrowly tailored specific exceptions" can be demonstrated, such as bans on assault weapons whose obvious purpose is to inflict violence on human beings.

The NRA's interpretation of the Second Amendment has been an important recruiting tool for the organization. Baker claims that gun owners supporting the individual right interpretation cost Democratic presidential nominee Al Gore the election of 2000.

The case, Baker said after the Texas decision, "represented the culmination of years of efforts by the Clinton-Gore Administration to undermine Americans' Second Amendment rights. When the Clinton Justice Department argued in the Fifth Circuit that there is no individual right, we took that argument to America's millions of gun owners to underscore the stakes of Election 2000. And they denied Al Gore the White House because of it."

Neither side in the debate seems eager to take the basic question of the Second Amendment's meaning to the Supreme Court, perhaps fearful of losing a definitive ruling. Baker and Henigan agree that although circuit jurisdictions differ on the individual vs. collective right issue, this in itself is not a basis for a Supreme Court review.

But it should be. Settling this question would seem to be as much within the purview of the highest court as, say, picking a president.

Comment on JWR contributor Jules Witcover's column by clicking here.

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