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More news about the Feds' reversal on RKBA
Josey1
Member Posts: 9,598 ✭✭
Mr. Ashcroft reaches far
The attorney general is trying to vastly expand the right to gun ownership in America
First published: Friday, May 10, 2002
"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.''
-- Second Amendment, U.S. Constitution
The words stand out, for this reason among others. In a document so otherwise eloquent and articulate, it's uncertainty and differing interpretations that underscore this one sentence about this essential topic.
Does militia, and well-regulated at that, essentially mean an army of sorts? Individual states' National Guard units, for instance? Is the right of gun ownership extended to the state, but not the individual?
Or does the people mean something very different? Is it private citizens whose collective gun rights are guaranteed?
Never, it seems, is there such intense disagreement over the intent of freedom of the press or freedom of religion.
Only now come Solicitor General Theodore Olson and Attorney General John Ashcroft, determined to settle this once and for all -- on their own ideological terms, of course.
For 70 years, the policy of the federal government, upheld by the Supreme Court, has been that there is no constitutional right to own a gun. It's well within the authority of government, the courts have said, to regulate and restrict gun ownership. Such has been the law.
Laws can change, of course. They can be rewritten and they can be overturned. Only there's a, yes, law concerning that, too. It would take, ultimately, the Supreme Court to alter what that court previously ruled. Or else an amendment to the Constitution itself, altering the meaning and intent of an existing amendment.
Until then, the 1939 decision in United States vs. Miller stands. The only gun ownership rights protected by the Second Amendment, the Supreme Court said, are those with "some reasonable relationship to the preservation of efficiency of a well-regulated militia.''
President Bush's Justice Department won't accept that, however. Mr. Ashcroft declared in a letter to the National Rifle Association a year ago that the law was, or should be, just the opposite. "The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms,'' the attorney general wrote.
Mr. Ashcroft was motivated, in part, by a federal appeals court in New Orleans. That court ruled last year that "the Second Amendment does protect individual rights.'' It was a ruling reminiscent of a court at the same level, in Richmond, Va., that not long ago rejected the well-established precedent of Miranda rights. It was soon enough overruled by the Supreme Court, of course.
Now Mr. Ashcroft and the solicitor general are going even further. They've informed federal prosecutors, in one order, and both a federal appellate court and the Supreme Court, in legal briefs, that all has changed.
By their fiat, the Constitution suddenly stands for something else. Prevailing Supreme Court interpretation matters no more.
Not even a matter beyond complete resolution should be disposed of this way. Lower courts could, indeed should, resist the Ashcroft-Olson maneuverings. But prosecutors, presumably bound to follow the policies of their department, are being kept from properly enforcing the law. How can existing guns laws not be at risk when the attorney general takes it upon himself to expand gun ownership rights?
Then there's the Constitution itself. What should be beyond dispute is the role and power of the judiciary. The decisions of the high court stand until either review and reversal by the same court, or a change in the Constitution. For guns and gun rights, then, that still means a balance in favor of the state, not the individual -- no matter what Mr. Ashcroft and Mr. Olson might say. http://timesunion.com/AspStories/story.asp?storyKey=82570&category=O
"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
The attorney general is trying to vastly expand the right to gun ownership in America
First published: Friday, May 10, 2002
"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.''
-- Second Amendment, U.S. Constitution
The words stand out, for this reason among others. In a document so otherwise eloquent and articulate, it's uncertainty and differing interpretations that underscore this one sentence about this essential topic.
Does militia, and well-regulated at that, essentially mean an army of sorts? Individual states' National Guard units, for instance? Is the right of gun ownership extended to the state, but not the individual?
Or does the people mean something very different? Is it private citizens whose collective gun rights are guaranteed?
Never, it seems, is there such intense disagreement over the intent of freedom of the press or freedom of religion.
Only now come Solicitor General Theodore Olson and Attorney General John Ashcroft, determined to settle this once and for all -- on their own ideological terms, of course.
For 70 years, the policy of the federal government, upheld by the Supreme Court, has been that there is no constitutional right to own a gun. It's well within the authority of government, the courts have said, to regulate and restrict gun ownership. Such has been the law.
Laws can change, of course. They can be rewritten and they can be overturned. Only there's a, yes, law concerning that, too. It would take, ultimately, the Supreme Court to alter what that court previously ruled. Or else an amendment to the Constitution itself, altering the meaning and intent of an existing amendment.
Until then, the 1939 decision in United States vs. Miller stands. The only gun ownership rights protected by the Second Amendment, the Supreme Court said, are those with "some reasonable relationship to the preservation of efficiency of a well-regulated militia.''
President Bush's Justice Department won't accept that, however. Mr. Ashcroft declared in a letter to the National Rifle Association a year ago that the law was, or should be, just the opposite. "The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms,'' the attorney general wrote.
Mr. Ashcroft was motivated, in part, by a federal appeals court in New Orleans. That court ruled last year that "the Second Amendment does protect individual rights.'' It was a ruling reminiscent of a court at the same level, in Richmond, Va., that not long ago rejected the well-established precedent of Miranda rights. It was soon enough overruled by the Supreme Court, of course.
Now Mr. Ashcroft and the solicitor general are going even further. They've informed federal prosecutors, in one order, and both a federal appellate court and the Supreme Court, in legal briefs, that all has changed.
By their fiat, the Constitution suddenly stands for something else. Prevailing Supreme Court interpretation matters no more.
Not even a matter beyond complete resolution should be disposed of this way. Lower courts could, indeed should, resist the Ashcroft-Olson maneuverings. But prosecutors, presumably bound to follow the policies of their department, are being kept from properly enforcing the law. How can existing guns laws not be at risk when the attorney general takes it upon himself to expand gun ownership rights?
Then there's the Constitution itself. What should be beyond dispute is the role and power of the judiciary. The decisions of the high court stand until either review and reversal by the same court, or a change in the Constitution. For guns and gun rights, then, that still means a balance in favor of the state, not the individual -- no matter what Mr. Ashcroft and Mr. Olson might say. http://timesunion.com/AspStories/story.asp?storyKey=82570&category=O
"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
Published May 10, 2002
Today's civil liberties quiz involves the U.S. Constitution's Second Amendment, the one about "the right to bear arms." What do you reckon it means?
If you wonder, you might want to look to the Supreme Court, which interprets the Constitution, and the federal government, which must honor and enforce it. For more than 60 years now, those two branches of government have been of one mind about the Second Amendment: It's meant to protect the right of states to organize militias, they've long agreed -- not to safeguard any sort of individual right to own guns.
Surprised? Don't be. This long-held view has done a lot to shape the world you live in. Because of it, your neighbors can't cavort about town with machine guns. Your irascible coworkers can't carry pistols in their pockets without police permission. And when your thrice-jailed, wife-beating cousin tries to buy a handgun, he has to undergo a background check to determine whether he should have one.
Scores of state and federal laws regulate private gun ownership -- all because the Supreme Court has said such laws are constitutional. In 1939, the court maintained that private citizens have no constitutional right to own a gun. The Second Amendment's real purpose, the court ruled then, is to secure "the preservation of efficiency of a well regulated militia." In its every expression before and since, the U.S. Justice Department has made the same case -- thereby defending government's entitlement to restrict who can own a weapon.
Until this week, that is. Attorney General John Ashcroft, lifelong member of the National Rifle Association, has seized the moment and tossed precedent in the trash. In briefs filed Monday, Ashcroft's Justice Department told the Supreme Court that the Constitution "broadly protects the rights of individuals" to own firearms. The declaration came in a footnote in each of two briefs filed by the department -- in gun cases so arcane that the government argues they shouldn't be heard. That makes the move all the more alarming: Though seeing no ready chance to push its philosophy forward, the Justice Department was nevertheless keen to declare its Second Amendment turnabout.
What next? It all depends upon the court. Chances are slim that it will take up either of the gun cases now before it, especially against the government's recommendation. But several justices are known to be itching for a chance to undo the 1939 precedent -- and Ashcroft has made clear he'll do whatever he can to help. Sooner or later, the amendment is likely to get its day in court. If Ashcroft's view prevails, all sorts of modest gun-control laws could be at risk.
It takes nerve to chuck a government stance that has prevailed for more than six decades -- and a fair bit of audacity. Ashcroft's move is proof, if any were needed, of his brazen willingness to exploit his power to promote personal agendas. That's exactly what nominee Ashcroft told a Senate confirmation committee he'd never do. http://www.startribune.com/stories/561/2825001.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
Jules Witcover
Originally published May 10, 2002
Jules Witcover
WASHINGTON -- More than a year ago, when former Sen. John Ashcroft testified at his confirmation hearings to be attorney general, he bent over backward to assure the Senate Judiciary Committee that if he got the job he would put his personal views on such issues as abortion and gun rights behind him and just carry out the laws on the books.
As Mr. Ashcroft put it then, he recognized he would be moving from the "enactment-oriented role" of a legislator to a "law-oriented role" as head of the Justice Department and the nation's chief law-enforcement officer. In that capacity, he suggested in his eagerness to be confirmed, he wouldn't ever try to persuade President Bush to make changes to support those personal views.
The Democrats on the committee, familiar with Mr. Ashcroft's history in the Senate as a vigorous opponent of abortion rights and gun control, were skeptical. One of them, Sen. Dianne Feinstein of California, professed to see "a kind of metamorphosis going on" before her very eyes. Mr. Ashcroft has now made clear -- in his Justice Department's flat opinion that the Second Amendment's statement of the right to bear arms is an individual right -- that Ms. Feinstein was not seeing things. He remains the same defender of the right of almost every Tom, Dick and Harry to carry a gun who has marched lockstep with the National Rifle Association throughout his political career and is now moving to make it federal policy.
The attorney general, through Solicitor General Theodore B. Olson, this week informed the Supreme Court that "the current position of the United States" is that the right to bear arms is not tied to the Colonial-era need for "a well-regulated militia," though it is so specified in the Constitution and so considered in most federal courts ever since the Supreme Court so ruled in 1939.
Last year, Mr. Ashcroft tipped his hand in a letter to the NRA saying he "unequivocally" believed that "the text and the original intent" of the Second Amendment protected individual gun ownership.
Subsequently, after a federal appeals court in Louisiana held that the amendment did protect a defendant's right to own a gun, Mr. Ashcroft called the ruling to the attention of all federal district attorneys. He indicated it should govern their actions in all cases in which gun ownership was an issue.
Mr. Olson this week did tell the Supreme Court the administration believes the individual right to bear arms is "subject 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 use."
But Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, is not mollified. He asks: "What does the administration regard as reasonable? This raises all kinds of questions."
He says the attorney general's position on guns "tells U.S. attorneys across the country when prosecuting criminals they can no longer use the strongest argument around [previous federal court decisions] in defense of gun laws."
Two specific cases involving gun ownership are up for consideration by the Supreme Court. One involves a man accused of owning a gun while under a restraining order in a domestic violence case. The other is the appeal of a man convicted of owning two outlawed machine guns. Mr. Olson, ironically, has asked the court to reject both cases on grounds they involve the "reasonable restrictions" of which he spoke.
But significant in Mr. Ashcroft's view on the right of individual gun ownership is not so much the substance as his readiness to proclaim it as the administration's new official policy. Doing so is clearly beyond the hands-off role he professed he would play in shaping the policy and philosophy of the Justice Department when he so earnestly lobbied to be its boss.
The senators were sold the Brooklyn Bridge if they really thought John Ashcroft would live up to his promise to become a mere paper-shuffler in the job. As the NRA's man at Justice, he is doing what was expected of him -- by the NRA and, quite probably, by those senators who deplore his views but gave him the job anyway.
Jules Witcover writes from The Sun's Washington bureau.
http://www.sunspot.net/news/opinion/oped/bal-op.witcover10may10.column
Copyright c 2002, The Baltimore Sun
"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
Betraying a promise
05/10/2002 06:04 AM
JOHN D. ASHCROFT
ATTORNEY GENERAL John D. Ashcroft promised during his confirmation hearings to adhere to legal precedent, even when it was at odds with his personal beliefs. But this week, he abandoned a 60-year-old precedent in favor of his personal view that the Second Amendment protects an individual's right to own a gun.
The switch in the government's position came in footnotes to briefs filed by Solicitor General Theodore Olson in two Supreme Court cases. The briefs said the government no longer believes that the Second Amendment is limited to protecting gun ownership related to the preservation of a militia. Instead, the government now believes that the amendment protects the rights of all individuals to possess and bear arms.
The reversal probably won't have much impact on the two appeals to the Supreme Court. The Justice Department said those appeals involve reasonable laws designed to keep guns away from unfit persons and restrict guns that are suited to criminal misuse. One case involved a person with a domestic violence restraining order, the other a person who owned two machine guns.
But, in the long run, the shift provides powerful legal ammunition for the National Rifle Association in its legal battle to elevate the Second Amendment as a protector of individual rights. It's legal guesswork how this could play out. But Mr. Ashcroft's view could be used to attack the constitutionality of laws banning concealed weapons -- like the Missouri law that Mr. Ashcroft and the NRA unsuccessfully sought to overturn three years ago with Proposition B.
The Second Amendment has been dormant since a 1939 Supreme Court decision upholding the right of the government to ban machine guns. The court said the amendment protects only rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia. "
But conservative academicians began challenging that interpretation of the Second Amendment more than a decade ago. More recently, Justice Clarence Thomas suggested the court should revisit the issue. And, last fall, the federal appeals court in New Orleans ruled that the 1939 decision was no longer persuasive. It ruled that the Second Amendment protects individual rights. Mr. Ashcroft sent a letter to all federal prosecutors saying he agreed with that decision.
To the NRA, Mr. Ashcroft's position on gun policy is a "breath of fresh air to freedom-loving gun owners." To those concerned about the way guns contribute to violence, Mr. Ashcroft's stance marks an alarming retreat by the federal government from sensible gun laws that protect people without outlawing gun ownership.
Changes in society sometimes justify abandonment of an outdated legal precedent. But the daily carnage in the cities that results from cheap handguns is reason for more gun control, not less. Mr. Ashcroft hasn't shown that gun laws are hurting society or keeping anyone from owning guns. His reversal is a triumph of ideology over sound precedent and a betrayal of his public promise. Mr. Ashcroft pledged to be a servant of the law, not a servant of the NRA.
http://www.stltoday.com/stltoday/news/stories.nsf/News/Editorial/7017709E1ED9E32086256BB50040E3B1
"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
WyomingSwede
Just because no state has ever found it necessary to call to arms and regulate a citizen militia does not mean that the citizens' right to own guns is any less primary in that Amendment. The right is given to citizens, along with a rationale. Militia or no militia, it does say "the right of the PEOPLE SHALL NOT BE INFRINGED" and explains the necessity for security of freedom.
These kinds of things don't happen in a vacuum. It is very possible that the government feels that part of preparing the nation to repel real terrorists threats in this century is to strengthen the Second Amendment? This would not surprise me at all. Ashcroft gets to be the lightning rod, but my guess is this is part of homeland security developing. At least, I hope so.
The state laws vary widely, of course, and this has long been held by pro gunners NOT to be a good thing. In Indiana, we have a rather liberal policy that includes a "shall issue" concealed carry law. In Kalifornia they have a city-state government to rival Rome, but that's another story. If the Bill of Rights was intended to list areas wherein the Federal Government shall not meddle, then it's about time they were getting out of the gun control morass, particularly when enemies with serious armaments may already be sleepers in the country. I just hope the BATF is hearing Ashcroft loud and clear as well.
- Life NRA Member
If dishonorable men shoot unarmed men with army guns, the evil must be prevented by the penitentiary and not by general deprivation of constitutional privilege." - Arkansas Supreme Court, 1878
I just wish I had a dollar for every gun I wanted, then I'd be a rich man.
The policy/position of the Framers of the Constitution, lasting over 100 years, was reversed 60 years ago- Ashcroft just set it right again!
Haven't heard that mentioned yet.
C-
_________________________
"The day that they come get your guns, is just
one day before they use them on you!"
Happiness is a warm gun