On the surface, the 5th US Circuit Court of Appeals decision to uphold a decision by a federal judge to dismiss a Second Amendment challenge by a man arrested for drugs whose firearm was confiscated by law enforcement and not returned to him after charges were dropped, appears to be a set back for gun rights.
However, the issue was not whether the man has a right to bear arms, but whether that right was absolute with regard to his property.
U.S. District Judge Jay Zainey dismissed the claims in December 2010, saying Houston failed to allege sufficient facts to show how authorities violated his right to bear arms by retaining his pistol.
In its majority opinion, a three-judge panel from the 5th Circuit said some regulation of firearms falls outside the reach of the Second Amendment, just as obscenity and defamation aren't protected as free speech by the First Amendment.
"The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense," Judge Rhesa Hawkins Barksdale wrote.
In her dissenting opinion, however, Judge Jennifer Walker Elrod said she disagrees with the majority's conclusion that the Second Amendment doesn't protect an individual's right to a specific firearm unless the government has prevented that person from acquiring others.
Elrod argued the majority impermissibly treated the Second Amendment as a "second-class right" by carving out an exception.
"It is particularly unfortunate for our circuit to endorse the atextual, ahistorical rule that the Second Amendment does not protect particular firearms," she wrote.
Marjorie Esman, executive director of the ACLU of Louisiana, praised Elrod's dissent and said the group would weigh its options, including asking the entire 5th Circuit to review the case.
"Sure, (Houston) could go buy another firearm, but he shouldn't have to because he already owns one," Esman said.
The commentary I've read on this case has been interesting because some observers believe the man should be challenging the confiscation on the basis of property rights, not the Second Amendment. What right does the state have to confiscate his property when no crime was committed for which he has been charged? The government is acting capriciously and with malice toward a citizen for no reason.
Houston claimed Cannizzaro's office had a policy of retaining firearms following arrests regardless of whether charges are filed. During an interview in 2009, Cannizzaro said his office decides on a "case by case basis" whether to return confiscated guns.
"There is no policy that we will not return weapons," he said.
The government has no right to decide any issue regarding property "on a case by case basis." There is no statute that says if you are arrested, the state gets to keep your property -- only if you are convicted. The policy is not law and is being applied unfairly.
"Carving out an exception" to the Second Amendment in this case is not the issue. Just because someone bases their argument on the Second Amendment doesn't automatically mean we should accept it. His right to bear arms is not affected. If he wants his gun back, he should sue based on the Fourth and Fifth Amendments, not try to stretch the Constitution to cover something for which it was never intended.