That was United States v. Emerson, a Fifth Circuit decision from a few years ago, which got plenty of press. But apparently that decision somehow vanished in time for the New York Times' coverage of the D.C. Circuit decision recognizing an individual right to bear arms. The Times Web site front page blurbs the article as:
The decision today was the first from a federal appeals court to hold that the Constitution gives individuals, not just state militias, the right to bear arms.Now these short blurbs are necessarily oversimplifications, and sometimes err. But here it largely echoes the article, which begins:
A federal appeals court in Washington today struck down on Second Amendment grounds a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.
The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.
But if you think the circuit headcount is important enough to mention in the second sentence, shouldn't you mention that the D.C. Circuit's constitutional interpretation had been accepted by one other federal appeals court? True, that earlier decision upheld the gun control law despite its conclusion that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias. Still, the paragraph makes it sound like the individual rights theory was entirely unprecedented, which it certainly is not.
After all, wouldn't you interpret "has been rejected by nine federal appeals courts" as a statement that the theory has been rejected by nine and accepted by none, as opposed to that it has been rejected by nine and accepted by some unspecified number? And if reasonable readers would do that, shouldn't the Times try to avoid misleading them this way? Either don't do the head count, or state it completely.
In the very last paragraph, the article does say that "Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias — in modern terms, the National Guard." That might seem like a (belated) acknowledgment that not all federal appeals courts that had considered the issue had adopted the collective rights theory, even before this decision. Even on its own, though, it is both belated and ambiguous — given what the article had said earlier, "most" might well be read as meaning "all but this one."
But what that sentence might possibly give in terms of clearing things up, the very next sentence (the last sentence in the piece) takes away, repeating and exacerbating the problem in the second paragraph and in the blurb:
But in yesterday's decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars.
Doesn't that last clause implicitly assert that the Justice Department and some constitutional scholars are the most authoritative bodies to adopt the individual rights view, and implicitly suggest that the view hadn't been accepted by courts? Again, wouldn't it have been less misleading to say "an approach that has been embraced by the Justice Department, by some constitutional scholars, and by the United States Court of Appeals for the Fifth Circuit"?
(If the Times really wanted to paint an accurate picture, it could also have noted that the approach had been accepted the courts in several states, which the D.C. Circuit majority expressly cited; but that might not be well-known to legal journalists, even ones who write about the Second Amendment — the existence of the Emerson Fifth Circuit decision should be well-known to such journalists.)
Thanks to Dan Schmutter for the pointer. (Note that I've reworded the post since I first put it up, chiefly to make it more readable, but also to note the front-page blurb, which I didn't at first see.)
UPDATE: The Times has corrected its front-page blurb to read "Advocates of gun rights said the decision raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners"; and it has added a fourth-to-last paragraph that acknowledges Emerson: "The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward."
Let's recall Emerson: It was a long decision, which stretches (excluding the caption, the synopsis, and the headnotes) from page 210 to 265 of volume 270 of the Federal Reporter, 3rd series, not counting the Appendix, which is all about the Second Amendment. Pages 210 to 218 discuss the facts, the statutory background, and Emerson's statutory, Due Process Clause, and Commerce Clause arguments. Then pages 218 to 260 -- over 40 pages -- discuss the question whether the Second Amendment secures an individual right, concluding that it does. Pages 260 to 264 conclude that the individual right is nonetheless not absolute, and conclude that the statute at issue in the Emerson case is a permissible restriction on the right. Pages 264 to 265 contain a brief conclusion. Thus, 42 of 55 pages in the opinion "embrace the individual-rights view of the Second Amendment," a conclusion that the New York Times labels "an aside." (For more on why the reasoning isn't dictum, see here and here; but it surely isn't an aside.)
So Emerson did rule, as the Times now acknowledges near the end of the article, that the Second Amendment secures an individual right. Yet the Times article's second paragraph still reads, "The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation." Again, why mention the nine other federal appeals courts here, and not mention the Fifth Circuit's acceptance of the individual right interpretation as well?
Likewise, several paragraphs down (and several paragraphs before the acknowledgment of Emerson), the article says, "The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars"; again, why the mention of the Justice Department and some scholars with no mention of the Fifth Circuit? Much as I like to think our scholarly views are authoritative, surely a court decision is more authoritative -- so that if all that's mentioned is the Justice Department and scholars, readers could reasonably infer that this is the best that the D.C. Circuit had on its side. Not very good work on the Times' part, it seems to me.
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