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What Right Of The People?
by Stephen Erwin
18 December 2003Constitution

USA v. Emerson is one of the best defenses of the individual right to bear arms and the Second Amendment ever written.


It doesn’t come as any surprise that the US Supreme Court has turned down yet another Second Amendment case. The Court has a sixty-year history of refusing to address the issue, presumably to avoid having to admit that the Amendment might actually mean what it says.

Based on appeals court decisions, citizens of Texas have a “right to keep and bear arms,” while only members of the National Guard have that right in the state of California.

Since its decision in The People of Indiana v, James Earl Miller, 73 US 312, the Court has consistently refused to accept Second Amendment cases. Liberals have used this lack of Court action to declare that the Second Amendment right to bear arms belongs only to active members of the National Guard. Some federal appeals courts have also said that Miller supports this view.

The US Fifth Circuit Court Of Appeals set that all to rest with their decision in USA v. Emerson. It is one of the best defenses of the individual right to bear arms and the Second Amendment ever written.

In the Miller decision the Court ruled that a sawed off shotgun was not protected by the Second Amendment because it was not a military style weapon. While the Court’s official order implies that only military style firearms such as assault weapons would be protected by the Second Amendment, it says nothing that would limit the right to the military. In fact the Fifth Circuit explains in detail how the Supreme Court’s logic in reaching their opinion supports the individual right position.

The Fifth Circuit uses history, the original understanding of the Constitution, and subsequent Supreme Court rulings to prove beyond any doubt that the Second Amendment guarantees an individual right to keep and bear arms.

Our favorite quote from the decision reads: "And, as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority,' never 'rights.'"

The liberal response to Emerson came from the infamous US Ninth Circuit Court of Appeals in its Silveira v. Lockyer decision.

The Second Amendment reads, “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.”

Judge Reinhardt's contrived decision begins by arguing that the well regulated militia of the Amendment’s first clause refers only to the members of a well trained and organized official state army and not the whole body of the people as many individual rights supporters claim. He tells us that James Madison’s first draft of the Amendment contained an exemption from military service for conscientious objectors. “Accordingly, the exemption from bearing arms for the religiously scrupulous can only be understood as an exemption from carrying arms in the service of a state militia, and not from possessing arms in a private capacity."

While he agrees that “the people” refers to an individual right, he claims that the word "bear" is a term used only for the military use of a firearm and therefore only protects military firearms when used by active members of the militia. He claims that the term was never used for the private or defensive use of firearms.

The judge was probably unaware that, by the time it was debated on August 17, 1789 in the House of Representatives, the first part of the proposed amendment had been changed to read "A well regulated militia, composed of the body of the people, being the best security of a free state." It would seem that the judge might have been wrong when he said no one at the time considered a well regulated militia to be composed of the body of the people. Of course the majority of the members of the United States House of Representatives who approved that wording could have been wrong.

In reference to his claim that the term "bear" was only used for military service it is interesting to read the Pennsylvania Constitution written before the Bill of Rights in 1776. "That the people have a right to bear arms for the defense of themselves and the state." Perhaps the people of Pennsylvania should have read the Ninth Circuit’s decision before they chose the language for their constitution.

The arguments used to deny the citizens of California their Constitutional rights are clearly in error, but our Supreme Court could not find four judges who were willing to hear the appeal of Silveira.

Stephen Erwin is Executive Director of the Judicial Amendment Coalition, a non-profit corporation registered to lobby Congress for the Judicial Accountability Amendment.

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