. "Appendix C Judicial Scrutiny of Challenged Gun Control Regulations: The Implications of an Individual Right Interpretation of the Second Amendment--Scott Gast." Firearms and Violence: A Critical Review. Washington, DC: The National Academies Press, 2004.
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Firearms and Violence: A Critical Review
Although, as we have held, 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 or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms as historically understood in this country.4
The court went on to hold that the deprivation of Emerson’s right in this case was reasonable, finding “the nexus between firearm possession by the party so enjoined and the threat of violence, is sufficient, though likely barely so, to support the deprivation.”5
The Fifth Circuit’s decision in Emerson was significant as the first time a federal appellate court had recognized an individual right interpretation of the Second Amendment.6 Shortly thereafter, in early 2003, several judges of the Ninth Circuit Court of Appeals, while ultimately adhering to that court’s standing interpretation of the Second Amendment as guaranteeing a collective right, indicated their own affinity for the reasoning in Emerson.7
Id. at 261.
Id. at 264.
The federal courts of appeals that have addressed the interpretation of the Second Amendment have favored (and, with the exception of the Fifth Circuit, still do favor) a collective right interpretation. See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002), reh’g en banc denied, 328 F.3d 567 (9th Cir. 2003) (“[W]e are persuaded that we were correct in Hickman [v. Block, 81 F.3d 98 (9th Cir. 1996)] that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment.”); United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000) (“It is well-established that the Second Amendment does not create an individual right.”); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999) (Second Amendment protection “inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia.”); United States v. Wright, 117 F.3d 1265, 1273 (11th Cir. 1997), vacated in part on other grounds, United States v. Wright, 133 F.3d 1412 (11th Cir. 1998) (“The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states.”); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995) (“[T]he Second Amendment preserves a collective, rather than individual, right.”); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (“[W]e cannot conclude that the Second Amendment protects the individual possession of military weapons.”).
Other courts of appeals have taken note of the Fifth Circuit’s interpretation of the Second Amendment, without necessarily embracing it. See, e.g., United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003) (acknowledging the Fifth Circuit’s decision in Emerson, as well as the Attorney General’s position outlined in his letter to the NRA, but concluding that “even were we inclined to, there is no need for us to wade into that Second Amendment quagmire because, although it espouses an individual rights approach to the Second Amendment, the Emerson court agrees with our conclusion that rights under the amendment can be restricted”); United States v. Wilson, 315 F.3d 972, 973 n.3 (8th Cir. 2003) (acknowledging the Emerson decision but noting that the Fifth Circuit “nonetheless upheld the constitutionality” of the challenged firearm law).