Court Says Individuals Have a Right to Firearms

By WILLIAM GLABERSON

n a case that had drawn intense national attention from supporters and opponents of gun control measures, a federal appeals court in New Orleans ruled yesterday that the Constitution guarantees individuals a right to have firearms.

But the court, in wading into one of the most contentious issues of constitutional law, disappointed pro-gun groups by declaring that the right was subject to some regulations, leaving open the door for gun control provisions.

Ever since an unusual pro-gun ruling from a Texas federal judge in 1999, the case had become the central legal battleground over the Second Amendment guarantee of a right "to keep and bear arms," which has been a political rallying cry for the National Rifle Association and other groups. They say there is a constitutional right for individuals to bear arms, contrary to most court decisions, which have said the amendment gives only a collective right, such as for state militia units.

The ruling yesterday by the United States Court of Appeals for the Fifth Circuit involved the case of a Texas doctor charged with illegal gun possession. Although the court said there was a Second Amendment right, it sent the case back to federal court for the doctor to face trial.

In the decision released late yesterday, two judges of a three-judge panel wrote that "the Second Amendment does protect individual rights." But the majority opinion quickly added, "that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions."

Because there is now likely to be a trial in the case decided yesterday, several legal experts said it appeared unlikely that the Supreme Court would review the ruling. But the opinion, the first by a federal appeals court to declare that the Second Amendment gives individual citizens a right to firearms, is expected to be influential in a continuing legal battle over the issue in the courts.

"The Fifth Circuit split the baby in a rational way that will both please and displease both sides," said Laurence H. Tribe, the constitutional law expert at Harvard Law School.

The New Orleans court's ruling sets law only for federal courts in Louisiana, Mississippi and Texas.

Previous court rulings over many years have held or suggested that the right to arms that the drafters of the Constitution were referring to was the right of the citizens as a group to have firearms for militia units.

The earlier appeals court rulings, and a 1939 decision by the United States Supreme Court that suggested the "collective rights" interpretation, were influenced by historical and legal scholarship saying the framers of the Constitution were focusing on maintaining an armed militia.

But more recent scholarship, some of it sponsored by the National Rifle Association, has suggested that those earlier readings got history wrong. The newer research, cited by the court yesterday, argued that at the time the Second Amendment was written there was great interest in giving individuals access to firearms.

Some legal experts who argue that the Second Amendment provides an individual right to firearms said the ruling was one of the most important ever on the issue. Eugene Volokh, a law professor at the University of California at Los Angeles, said the opinion would lay the groundwork for many other decisions that will analyze when gun control is permitted and when it is not.

Professor 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.

Kelly Whitley, a spokeswoman for the National Rifle Association, said the group had not yet reviewed the opinion and could not comment.

Ruchi Bhowmik, a lawyer at a group that advocates gun control, the Brady Center to Prevent Gun Violence, said the group was disappointed that the court "felt compelled to rely on discredited legal arguments to find an individual right."

The case involved charges against Dr. Timothy Joe Emerson, who was indicted for carrying a pistol even though he was under a court order in a divorce case not to threaten his wife. A statute makes it a federal crime to carry a gun while under such a protective order.

In 1999, a conservative federal judge in Lubbock, Tex., Sam R. Cummings, flatly declared that the charges against Dr. Emerson were in violation of his right to have firearms under the Second Amendment.

In the decision yesterday, the court said that although there was a constitutional right, it did not bar a law intended to protect someone from being threatened by a gun. It said the district court decision on was incorrect and sent the case back to federal court in Lubbock for a trial on the gun violation charge.

Several legal experts said yesterday that the Supreme Court would be unlikely to review the Second Amendment issue at least until that trial and that it might never agree to take up any appeal in the case.

The decision yesterday was written by Judge William L. Garwood, who was appointed by President Ronald Reagan, and was joined in by Harold R. DeMoss Jr., who was chosen by President George Bush in 1991.

Judge Robert M. Parker, a Clinton selection, wrote a concurring opinion agreeing that Dr. Emerson should be tried on the gun charges. But he sharply took issue with the majority for discussing the Second Amendment issue at all.

He cited legal rules discouraging what lawyers call dicta, observations by judges that are not necessary to reach their conclusions. Judges typically say such observations are not to be used as precedent.

Judge Parker said the majority opinion on the Second Amendment was nothing more than an advisory treatise on this long-running debate that "is therefore not binding on us or any other court."

Copyright 2001 The New York Times Company