Gun Ownership Is Your Right

The Washington Times (Washington, DC), May 9, 1999 | Go to article overview

Gun Ownership Is Your Right


On April 1, 1999, Federal District Judge Sam Cummings of the Northern District of Texas ruled that the Second Amendment of the U.S. Constitution is an individual right.

In the case, United States of America vs. Timothy Joe Emerson, Judge Cummings drew grounding from United States vs. Miller; a U.S. Supreme Court decision from 1934; a historical analysis of the Second Amendment and from scholarly writings.

Judge Cummings' ruling is quite bold, since he parted company with a host of federal courts, who while relying on Miller, have interpreted it to mean there is no individual right to own firearms or there is an individual right, but it ought to be ignored since the Supreme Court could not have foreseen what that would mean!

Miller was charged with the possession of an unregistered sawed-off shotgun, in violation of the 1934 National Firearms Act. The relevant part of the Supreme Court ruling in Miller is as follows: "In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

If in the minds of the Supreme Court justices, the Second Amendment was some sort of collective state right, they would simply have asked if Miller belongs to any state militia, and if he did not, the court would probably have said Miller being thus a private citizen could not make a Second Amendment claim. The court's focus was instead on the question of such a weapon having any military value even in the hands of a private citizens.

In Cases vs. United States (1942), the 1st Circuit held that the Second Amendment under Miller would have to be an individual right, but because that right would extend to private persons having all sort of military weapons, the court could not really have meant that. Here is the 1st Circuit talking: "Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private person not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank, anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. …

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