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Guns and Justice
Josey1
Member Posts: 9,598 ✭✭
Guns and Justice
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Friday, May 10, 2002; Page A36
THE U.S. SOLICITOR general has a duty to defend acts of Congress before the Supreme Court. This week, Solicitor General Ted Olson -- and by extension his bosses, Attorney General John Ashcroft and President Bush -- took a position regarding guns that will undermine that mission.
Historically, the Justice Department has adopted a narrow reading of the Constitution's Second Amendment, which states that "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." Along with nearly all courts in the past century, it has read that as protecting only the public's collective right to bear arms in the context of militia service. Now the administration has reversed this view. In a pair of appeals, Mr. Olson contends that "the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia . . . to possess and bear their own firearms." Mr. Ashcroft insists the department remains prepared to defend all federal gun laws. Having given away its strongest argument, however, it will be doing so with its hands tied behind its back.
Laws will now be defended not as presumptively valid but as narrow exceptions to a broad constitutional right -- one subject, as Mr. Olson put it, only to "reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." This may sound like a common-sense balancing act. But where exactly does the Second Amendment, if it guarantees individual rights, permit "reasonable restrictions"? And where does its protection exempt firearms that might be well suited for crime?
Mr. Ashcroft has compared the gun ownership right with the First Amendment's protection of speech -- which can be limited only in a fashion narrowly tailored to accomplish compelling state interests. If that's the model, most federal gun laws would sooner or later fall. After all, it would not be constitutional to subject someone to a background check before permitting him to worship or to make a political speech. If gun ownership is truly a parallel right, why would the Brady background check be constitutional?
The Justice Department traditionally errs on the other side -- arguing for constitutional interpretations that increase congressional flexibility and law enforcement policy options. The great weight of judicial precedent holds that there is no fundamental individual right to own a gun. Staking out a contrary position may help ingratiate the Bush administration to the gun lobby. But it greatly disserves the interests of the United States.
c 2002 The Washington Post Company
http://www.washingtonpost.com/wp-dyn/articles/A63065-2002May9.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
_____What's Your Opinion?_____
Share Your Views About Editorials and Opinion Pieces on Our Message Boards
About Message Boards
E-Mail This Article
Printer-Friendly Version
Subscribe to The Post
Friday, May 10, 2002; Page A36
THE U.S. SOLICITOR general has a duty to defend acts of Congress before the Supreme Court. This week, Solicitor General Ted Olson -- and by extension his bosses, Attorney General John Ashcroft and President Bush -- took a position regarding guns that will undermine that mission.
Historically, the Justice Department has adopted a narrow reading of the Constitution's Second Amendment, which states that "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." Along with nearly all courts in the past century, it has read that as protecting only the public's collective right to bear arms in the context of militia service. Now the administration has reversed this view. In a pair of appeals, Mr. Olson contends that "the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia . . . to possess and bear their own firearms." Mr. Ashcroft insists the department remains prepared to defend all federal gun laws. Having given away its strongest argument, however, it will be doing so with its hands tied behind its back.
Laws will now be defended not as presumptively valid but as narrow exceptions to a broad constitutional right -- one subject, as Mr. Olson put it, only to "reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." This may sound like a common-sense balancing act. But where exactly does the Second Amendment, if it guarantees individual rights, permit "reasonable restrictions"? And where does its protection exempt firearms that might be well suited for crime?
Mr. Ashcroft has compared the gun ownership right with the First Amendment's protection of speech -- which can be limited only in a fashion narrowly tailored to accomplish compelling state interests. If that's the model, most federal gun laws would sooner or later fall. After all, it would not be constitutional to subject someone to a background check before permitting him to worship or to make a political speech. If gun ownership is truly a parallel right, why would the Brady background check be constitutional?
The Justice Department traditionally errs on the other side -- arguing for constitutional interpretations that increase congressional flexibility and law enforcement policy options. The great weight of judicial precedent holds that there is no fundamental individual right to own a gun. Staking out a contrary position may help ingratiate the Bush administration to the gun lobby. But it greatly disserves the interests of the United States.
c 2002 The Washington Post Company
http://www.washingtonpost.com/wp-dyn/articles/A63065-2002May9.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
Only in the limited intellects of mushbrains such as those who write editorials for the Washington Post. Take the verbiage in some decisions out of context, distort it and then claim it to be "great weight." As writers, these clowns must raise huge vegetables.