Is the Second Amendment an Individual or a Collective Right: United States V. Emerson's Revolutionary Interpretation of the Right to Bear Arms

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The protections of the Bill of Rights are among the most important safeguards against an oppressive government provided by the Constitution.1 Included in these protections is the Second Amendment (the "Amendment"), which provides: "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."2 Although approximately two hundred years have passed since its inception, the scope of the Amendment remains in dispute.3 One common question is whether the Amendment applies to state as well as federal governments.4 Other questions are the amount of protection extended by the right to bear arms5 and to whom these protections extend.6

Although these issues cannot easily be separated, this Comment will focus, to the extent possible, on who may claim the protection of the Amendment. At times the protection afforded by the Amendment is characterized as an individual right;7 at other times it is viewed as a collective right.8

In determining which view is embodied in the Amendment, this Comment will first consider its historical origin. However illuminating the historical background of the Amendment may be, it is not necessarily dispositive of what the Framers actually intended. For this reason, this Comment will next consider the wording of the Amendment, the Supreme Court's interpretation of the Amendment, the application of the Fourteenth Amendment, and the social considerations at issue.

This distinction is crucial because the more collectively the right is interpreted, the more broadly Congress can legislate to restrict the right to bear arms.9 This distinction was first implicated in 1927, when Congress passed the first major federal legislation on gun control.10 After the Supreme Court opinion in United States v. Miller,11 most lower federal courts have interpreted the protection of the Second Amendment as a collective right.12 Surprisingly, the Supreme Court has stayed relatively silent on the issue, never stating clearly whether the right is collective or individual.13 Although the Supreme Court recently denied certiorari,14 it may be forced to reconsider the issue in light of the Fifth Circuit's recent departure from the traditional interpretation.15

Recently, in United States v. Emerson,16 the Fifth Circuit held that the Amendment confers an individual right to bear arms.17 On August 28, 1998, Sacha Emerson filed for divorce in Tom Greene County, Texas.18 Mrs. Emerson, among other things, requested a temporary restraining order.19 On September 14, 1998, the state judge issued a restraining order, enjoining Mr. Emerson from engaging in twenty-two enumerated acts.20 A five-count indictment was returned against Mr. Emerson on December 8, 1998.21 After dropping counts two through five, the government proceeded to prosecute the remaining charge,22 alleging that Mr. Emerson unlawfully possessed, "in and affecting interstate commerce," a firearm while subject to the restraining order--a violation of 18 U.S.C. [sec] 922(g).23 In response, Mr. Emerson contended that [sec] 922 violated his right to bear arms.24 The district court agreed and granted Emerson's motion for dismissal.25 On appeal,26 the Fifth Circuit reversed the trial court's determination after a lengthy analysis of the Second Amendment.27 The court held that [sec] 922 was not a violation of Emerson's Second Amendment rights.28 The court construed the right to bear arms as an individual right but stated:

[T]hat does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.29

In examining the different interpretations of the right to bear arms, the court identified three major divisions of understanding:30 (1) a state rights, or collective right, in which the Amendment only functions to recognize a state's right to arm a militia;31 (2) an individual right that only applies to persons engaged in a state's militia;32 and (3) a pure individual right enjoyed by all persons of qualified age and standing. …