October 31, 2001
If the hijackers had used guns for their crimes on 9/11, we would
surely now be caught up in a frenzy of demands that this "lesson" calls
for tough gun-control legislation. But they didn't use any firearms,
just easily purchased box-cutters.
The real lesson of 9/11 is that, if any pilot or off-duty
policeman had had a gun on board, he could have averted supreme tragedy
by doing what all our powerful FBI, CIA, and Armed Services could not
do. That's why individuals, not government, are the ultimate
protectors of a free society.
The American people understand this. The 9/11 events have led to
a big increase in gun purchases and the taking of courses at shooting
Against the stunning reality of 9/11, the federal Court of Appeals
for the Fifth Circuit just issued a landmark decision in United States
, affirming the constitutional right of individuals to own a
gun. The Founding Fathers understood this, and that's why they gave us
the Second Amendment.
The Emerson case tackled the meaning of the right "to keep and
bear arms" in the Bill of Rights. At issue was whether the Second
Amendment defines an individual right, protecting defendant Emerson and
all law-abiding citizens, or a collective right available only to
government groups such as the National Guard.
This disagreement about the meaning of the Second Amendment has
been a matter of intense debate for many years. Unfortunately, federal
court decisions in several circuits over the last several decades have
muddied up the issue.
The Second Amendment reads: "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." For many years, the anti-
gun lobby and some lower court decisions have touted the notion that
the Second Amendment is limited to firearms carried in actual military
situations rather than by civilians in peaceful self-defense.
The Emerson decision thoroughly rejects that theory. The Court
ruled: "The plain meaning of the right of the people to keep arms is
that it is an individual, rather than a collective, right and is not
limited to keeping arms while engaged in active military service or as
a member of a select militia such as the National Guard."
The court concludes: "It appears clear that `the people,' as used
in the Constitution, including the Second Amendment, refers to
individual Americans." This is consistent with the use of the term
"the people" in all the other amendments in the Bill of Rights.
As the Tenth Amendment shows, the Founders clearly understood the
difference between "the states" and "the people." The Emerson decision
also cites the renowned Black's Law Dictionary definition for "carry
arms or weapons" as "being armed and ready for offensive or defensive
action in case of conflict with another person."
At stake in the gun control debate is whether we control
government and defend freedom, or government controls us. Should our
defense against hijacking terrorism be limited to government fighter
planes shooting down hijacked planes, killing everyone on board, or
extended to allowing airplane crews and qualified passengers (such as
off-duty law enforcement officials) to take defensive measures without
fear of litigation or prosecution?
The Emerson decision disposed of arguments that only formal state
militias have a constitutional right to keep and bear arms. As the
Supreme Court explained over 60 years ago in United States v. Miller,
the framers of the Constitution used the term "militia" to mean "all
males physically capable of acting in concert for the common defense."
It still does mean that. Current federal law (10 U.S. Code 311)
states: "The militia of the United States consists of all able-bodied
males at least 17 years of age. . . . The classes of the militia are
(1) the organized militia, which consists of the National Guard and the
Naval Militia; and (2) the unorganized militia, which consists of the
members of the militia who are not members of the National Guard or the
The males on board the hijacked airplanes constituted a militia,
and some courageously acted, forcing one hijacked plane down in rural
Pennsylvania instead of allowing it to continue to the terrorists'
target. A disarmed public cannot protect a free society against
In Cuba, Castro first required all guns to be surrendered before
he could impose his brutal dictatorship. After England banned private
gun ownership, violence using guns against persons rose sharply and
politics turned sharply left.
Strict gun control creates vulnerable targets for the enemies of a
free society. The Fifth Circuit's upholding of the constitutional
right of individuals to keep and bear arms is a welcome development in
our continued defense of freedom.