scholars agreeing with the collective right model to address the topic.”39 This observation came in an introduction to a Symposium on the Second Amendment sponsored by the Chicago-Kent Law Review in 2000, which was designed to “take a fresh look at the Second Amendment and, particularly, the collective right theory. This is not, therefore, a balanced symposium.”40 The perceived need for such a “fresh look” suggests that the supporters of the collective rights interpretation are prepared to step up their involvement in the debate over the interpretation of this constitutional provision.

The Federal Courts of Appeals and the Second Amendment

Those federal courts of appeals that have addressed the proper interpretation of the Second Amendment have generally taken the collective or states’ rights view.41 Illustrative of this approach is the Seventh Circuit’s opinion in Gillespie v. City of Indianapolis (1999), a case in which a former police officer challenged a federal law prohibiting persons convicted of domestic violence from possessing a firearm as violating his Second Amendment right.42 The court of appeals upheld the law, noting: “The link that the amendment draws between the ability ‘to keep and bear Arms’ and ‘[a] well regulated Militia’ suggests that the right protected is limited, one that 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.”43

The Fifth Circuit’s decision in Emerson is a clear break with this trend (and the Ninth Circuit’s opinion in Nordyke suggests further dissatisfaction within the federal courts with the perpetuation of a collective rights interpretation). The Emerson decision creates an obvious split among the circuits on an important constitutional question, suggesting that the U.S. Supreme Court may wish to grant certiorari in a Second Amendment case at some point to provide a definitive answer to this question that divides the federal circuits. The Supreme Court’s previous Second Amendment jurisprudence provides little guidance as to how the Court will rule if and when it undertakes to answer this question.

The Supreme Court and the Second Amendment

As noted at the outset of this paper, the U.S. Supreme Court has recently declined to hear argument in two cases that squarely presented the


Id. at 24.




See supra note 6.


185 F.3d 693 (7th Cir. 1999).


Id. at 710.

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