Department acknowledged that “[t]he government agrees with petitioner that the Fifth Circuit’s decision in Emerson reflects a sounder understanding of the scope of purpose of the Second Amendment than does the court of appeals’ decision in the instant case.”16 Nevertheless, the government supported the decision of the appellate court that the federal law was a valid restriction on this individual right.17

The individual right interpretation has also received recent support in Congress. On July 15, 2003, United States Senator Orrin Hatch of Utah introduced the District of Columbia Personal Protection Act, which would repeal the District of Columbia’s ban on firearm ownership and restrict the authority of the District’s council to prohibit such ownership in the future. In introducing the measure, Senator Hatch noted that “this bill goes a long way toward restoring the constitutionally guaranteed right of Americans who reside in the District of Columbia to possess firearms.”18 His bill was introduced with 21 cosponsors.19 In a similar vein, two public policy organizations filed separate lawsuits challenging the District of Columbia’s handgun ban, arguing that it violates the Second Amendment.20

These developments are remarkable in that they signal an apparent momentum toward the widespread acceptance of an interpretation of the Second Amendment that protects an individual right to possess a firearm. If these developments continue and an individual right interpretation becomes accepted by the courts, another important question closely follows: assuming that individuals do have the constitutionally guaranteed right to keep

16  

Brief of the United States, supra note 14. In addition, in its opposition briefs in both the Haney and Emerson cases, the United States included as an appendix a November 9, 2001 memorandum from the Attorney General to all United States’ Attorneys. In that memo, the Attorney General notes that, “In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment.” Id.; Brief for the United States in Opposition to Petition for Certiorari in United States v. Emerson, No. 01-8780 (U.S. May 6, 2002).

17  

The United States Supreme Court has denied certiorari in Haney and in the Emerson case. United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert. denied, 536 U.S. 907 (June 10, 2002); United States v. Emerson, 270 F.3d 203, (5th Cir. 2001), cert. denied, 536 U.S. 907 (June 10, 2002).

18  

149 Cong. Rec. S9425 (daily ed. July 15, 2003) (statement of Sen. Hatch).

19  

The original cosponsors were Senators George Allen (R-VA), Conrad Burns (R-MT), Saxby Chambliss (R-GA), Larry E. Craig (R-ID), Pete V. Domenici (R-NM), Lindsey O. Graham (R-SC), Kay Bailey Hutchison (R-TX), Zell Miller (D-GA), Jeff Sessions (R-AL), Ted Stevens (R-AK), Craig Thomas (R-WY), Jim Bunning (R-KY), Ben Nighthorse Campbell (R-CO), John Cornyn (R-TX), Michael D. Crapo (R-ID), Michael B. Enzi (R-WY), Charles E. Grassley (R-IA), Jim Inhofe (R-OK), Don Nickles (R-OK), Richard C. Shelby (R-AL), and John E. Sununu (R-NH).

20  

Arthur Santana, Pro-Gun Groups Split on Tactics; Cato Institute, NRA Quarrel Over Challenges to D.C. Law, Wash. Post, July 21, 2003, at B5.



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