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2nd Amendment news
Josey1
Member Posts: 9,598 ✭✭
Ashcroft not nutty on Second Amendment
Don Erler
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 to the U.S. Constitution
Reasonable restrictions on gun ownership make sense, as do reasonable regulations of child pornography. Both guns and kiddie porn can cause serious harm.
But those who favor gun control rarely like porn control, because the First Amendment absolutely protects speech (as well as flag burning and lap dancing), while they believe that the Second Amendment guarantees the right of the people to keep and bear only cap pistols and BB guns - or something like that. Their constitutional attitudes are several shots short of a full clip.
New York Times columnist Bob Herbert went ballistic over Attorney General John Ashcroft's "reversal of federal policy" in order to "throw open the doors to a wholesale increase in gun ownership," as he wrote last week. Star-Telegram columnist Bob Ray Sanders was even less temperate.
And just how did the current Justice Department subvert settled constitutional law? Last week, Solicitor General Theodore Olson told the Supreme Court that the Second Amendment "protects the rights of individuals, including persons who are not members of any militia or engaged in active military service."
This common-sense perspective (identical to centrist views on other constitutional freedoms) has been held by William Blackstone, John Marshall, Joseph Story, John F. Kennedy, Hubert Humphrey and even - prepare to exclaim, "Holy moly!" - Harvard Law's ultra-liberal professor Lawrence Tribe.
Two ironies scream for attention. First, as Herbert admitted, the Justice Department was defending gun control laws when it acknowledged that the people possess constitutional rights. How radical is Ashcroft's understanding of the Second Amendment if he says that it permits reasonable restrictions on gun ownership and use?
Second, if Second Amendment rights are "collective" (rather than individual) and related entirely to the militia's role in defending the state, then it follows that, in our contemporary circumstances, militia members must keep and bear heavy artillery, mortars, machine guns, Stinger missiles and possibly tactical nukes.
Why? The Supreme Court precedent beloved of Herbert and other gun control zealots (U.S. vs. Miller, 1939) noted explicitly that the militia included all "physically capable" men who "were expected to appear bearing arms supplied by themselves." Is this what left-wing ideologues really want?
John R. Lott Jr., author of More Guns, Less Crime (University of Chicago Press, 2000), has observed that since Britain banned handguns in 1996, "gun crimes have risen by an astounding 40 percent."
And in the 33 American states that permit noncriminal (usually carefully trained) citizens to carry handguns? "Deaths and injuries from multiple-victim public shootings fell an average 78 percent," according to Lott.
Data from the National Crime Victimization Survey by the Census Bureau suggest that at least 65,000 crimes are stopped or prevented each year by armed citizens. Other studies put that number in the millions.
So do we need gun control? Of course. Religious freedom does not extend to human sacrifice; speech does not include obscenity; property can be regulated by government.
But moderates who understand that the Second Amendment protects citizens against unreasonable restrictions should not be targeted for abuse by left-wing zealots.
Don Erler is president of General Building Maintenance.
donerler@sbcglobal.net http://www.dfw.com/mld/dfw/news/columnists/don_erler/3272939.htm
Edited by - Josey1 on 05/18/2002 10:15:10
Don Erler
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 to the U.S. Constitution
Reasonable restrictions on gun ownership make sense, as do reasonable regulations of child pornography. Both guns and kiddie porn can cause serious harm.
But those who favor gun control rarely like porn control, because the First Amendment absolutely protects speech (as well as flag burning and lap dancing), while they believe that the Second Amendment guarantees the right of the people to keep and bear only cap pistols and BB guns - or something like that. Their constitutional attitudes are several shots short of a full clip.
New York Times columnist Bob Herbert went ballistic over Attorney General John Ashcroft's "reversal of federal policy" in order to "throw open the doors to a wholesale increase in gun ownership," as he wrote last week. Star-Telegram columnist Bob Ray Sanders was even less temperate.
And just how did the current Justice Department subvert settled constitutional law? Last week, Solicitor General Theodore Olson told the Supreme Court that the Second Amendment "protects the rights of individuals, including persons who are not members of any militia or engaged in active military service."
This common-sense perspective (identical to centrist views on other constitutional freedoms) has been held by William Blackstone, John Marshall, Joseph Story, John F. Kennedy, Hubert Humphrey and even - prepare to exclaim, "Holy moly!" - Harvard Law's ultra-liberal professor Lawrence Tribe.
Two ironies scream for attention. First, as Herbert admitted, the Justice Department was defending gun control laws when it acknowledged that the people possess constitutional rights. How radical is Ashcroft's understanding of the Second Amendment if he says that it permits reasonable restrictions on gun ownership and use?
Second, if Second Amendment rights are "collective" (rather than individual) and related entirely to the militia's role in defending the state, then it follows that, in our contemporary circumstances, militia members must keep and bear heavy artillery, mortars, machine guns, Stinger missiles and possibly tactical nukes.
Why? The Supreme Court precedent beloved of Herbert and other gun control zealots (U.S. vs. Miller, 1939) noted explicitly that the militia included all "physically capable" men who "were expected to appear bearing arms supplied by themselves." Is this what left-wing ideologues really want?
John R. Lott Jr., author of More Guns, Less Crime (University of Chicago Press, 2000), has observed that since Britain banned handguns in 1996, "gun crimes have risen by an astounding 40 percent."
And in the 33 American states that permit noncriminal (usually carefully trained) citizens to carry handguns? "Deaths and injuries from multiple-victim public shootings fell an average 78 percent," according to Lott.
Data from the National Crime Victimization Survey by the Census Bureau suggest that at least 65,000 crimes are stopped or prevented each year by armed citizens. Other studies put that number in the millions.
So do we need gun control? Of course. Religious freedom does not extend to human sacrifice; speech does not include obscenity; property can be regulated by government.
But moderates who understand that the Second Amendment protects citizens against unreasonable restrictions should not be targeted for abuse by left-wing zealots.
Don Erler is president of General Building Maintenance.
donerler@sbcglobal.net http://www.dfw.com/mld/dfw/news/columnists/don_erler/3272939.htm
Edited by - Josey1 on 05/18/2002 10:15:10
Comments
By Eugene Volokh
Do you and I have the right to bear arms? The Bush administration's Justice Department recently answered with an emphatic ``Yes.''
As gun-control advocates cried foul and gun-rights supporters cheered, the government filed Supreme Court briefs May 6 in two cases, officially weighing in on the debate about the Second Amendment to the federal Constitution. The Justice Department rejected the executive branch's longtime position that the right to own guns is a collective right given to state militias, claiming instead that the right belongs to individual gun owners.
The ``current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service'' to ``possess and bear their own firearms,'' the Justice Department said.
The briefs acknowledged that the government was reversing several decades of its own constitutional policy, as well as challenging trends in the lower courts since the 1930s.
This policy, though a break with the recent past, fits into a long historical tradition. Americans from the Founding Fathers to the early 1900s took for granted that the right to bear arms is a right of individuals -- not of the states or the National Guard.
This view of the Second Amendment as securing an individual right can be seen in the works of leading early constitutional commentators, such as Supreme Court Justice Joseph Story (who was educated in the law in the decade after the Bill of Rights was enacted), St. George Tucker and Thomas Cooley. It is supported by similar provisions in states' bills of rights, and in state legislatures' calls for a federal Bill of Rights.
The individual rights position was the nearly unanimous view of courts and commentators throughout the 1800s, and was endorsed by Congress in the Freedmen's Bureau Act of 1866.
It was only in the 1930s that elite legal opinion began to shift, as lower federal courts started to embrace the states' rights view. Lower court decisions in the 1970s and 1980s reinforced this interpretation. The Supreme Court has never definitively resolved the question, making the Justice Department's switch particularly significant.
Though the Bush administration's position supports the individual right to own a gun, the government briefs stress that this right is nevertheless limited, like freedom of speech and other individual rights. Just as libel and child pornography are not protected by the First Amendment, neither is ownership of guns by violent felons protected by the Second Amendment. Many current gun-control laws would be upheld even under the government's new position.
But if the Bush administration's Second Amendment theory becomes law, some changes are likely. The Washington, D.C., handgun ban, for example, would probably be struck down as too broad. Similar bans in Chicago and other cities also would be vulnerable, provided that the Supreme Court follows its past practice and applies the restrictions of the Bill of Rights not only to the federal government, but also to the states.
EUGENE VOLOKH is a professor at the UCLA School of Law. He specializes in constitutional law and wrote this article for Perspective.http://www.bayarea.com/mld/bayarea/3294966.htm
"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
05/16/02
DAVID REINHARD
S ome National Rifle Association guy once said the NRA would be working out of the White House if George Bush became president, and now the Bush administration is pushing the NRA's "radical" jurisprudence on the Second Amendment.
At least that's how Washington Post columnist E.J. Dionne Jr. played up the Justice Department's recent reinterpretation of the amendment on this page Tuesday: John Ashcroft simply said "how high" when the NRA said "jump" in stating that the Second Amendment protects the rights of individuals -- not state militias -- to bear arms.
It's doubtless easier to cry "raw politics" than probe the meat of the Second Amendment issue, but those who do will find that Ashcroft's view is the product of two decades of constitutional scholarship. What's more, the view that the amendment protects the gun rights of individuals is acknowledged by some of the republic's leading liberal legal scholars.
"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."
That's the Second Amendment. Gun-control buffs cite the first clause -- "a well-regulated militia . . ." -- to limit the right granted in the second clause. You want a right to keep and bear arms? Well, serve in the militia.
It's a snappy crack and has scads of superficial appeal. And, as Dionne noted, it formed the basis of the government policy for decades. But scholars have discovered that it poses a few problems upon inspection.
One, the right to bear arms reaches deep into English common law. Read "Blackstone's Commentaries on the Laws of England." The Founders did. Two, "militia" referred not to an organized fighting force, but all the state's able-bodied male adults. As Virginian George Mason said during the Constitution's ratification debates, "militia" consists "of the whole people."
But was the amendment's "right of the people to keep and bear arms" a right given to "a body of people," rather than individuals? No, "right of the people" was used elsewhere in the Bill of Rights and referred to individual rights -- the right to peaceably assembly (First) and protection against unreasonable searches (Fourth).
Doesn't the fact that the Second Amendment has a preamble (the militia clause) mean something? The Bill of Rights' other amendments don't. Not really. As Eugene Volokh showed in his 1998 New York University Law Review article, these justification clauses were common in state constitutions of the framers' era. Constitution writers used them to guarantee constitutional rights to local trials, unfettered legislative speech and debate and even freedom of the press.
"When it is said that 'any person may publish his sentiments on any subject,' " Volokh wrote in reference to Rhode Island's Constitution, "a justification clause stressing 'the liberty of the press' can't limit the right only to members of the institutional press."
Second Amendment "revisionism" isn't the view of the NRA or some marginalized legal scholars. It's a view that has gained widespread scholarly acceptance. In his 1999 book, "Origins of the Bill of Rights," liberal constitutional historian Leonard W. Levy concluded, "The amendment does protect individuals." Harvard law professor Laurence Tribe agrees.
They are simply echoing the breakthrough work of constitutional scholar Sanford Levinson. The telling title of his 1989 Yale Law Journal article: "The Embarrassing Second Amendment."
It's embarrassing, Levinson wrote, because the "altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
Yes, the Bush-blessed, historically-grounded view poses problems for those who want to ban guns. They'd have to achieve their aims the old-fashioned way -- amending the Bill of Rights rather than having judges do their heavy lifting. But the Bush administration's new policy, as the administration itself makes clear, still allows reasonable limits on gun ownership. After all, even the First Amendment in our system of ordered liberty isn't an absolute right. David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com.
http://oregonlive.com/news/oregonian/david_reinhard/index.ssf?/xml/story.ssf/html_standard.xsl?/base/editorial/1021552450161941.xml
"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
Edited by - Josey1 on 05/18/2002 10:17:02
U.S. Newswire
15 May 22:24
Gun Rights Advocates Ask: Caught In Contradiction: Will The Real
Senator Schumer Please Speak Straight?
To: National Desk
Contact: Joe Waldron and Dave Workman, 425-454-7012
BELLEVUE, Wash., May 15 /U.S. Newswire/ -- Is perennial anti-gun
New York Senator Charles Schumer suffering from schizophrenia?
That's the question two of the nation's leading gun rights
advocates are asking themselves after Schumer contradicted his own
public position on the right to keep and bear arms.
Said Schumer in a May 8 press release: "The broad principle that
there is an individual right to bear arms is shared by many
Americans, including myself."
However, this is the same Chuck Schumer who stated, during an
April 5, 1995 hearing of the House Subcommittee on Crime, "The
Second Amendment...does not guarantee the mythical individual right
to bear arms we will hear argued for today."
"Chuck Schumer is once again talking out of both sides of his
mouth," said Alan Gottlieb, founder of the Second Amendment
Foundation. "Suddenly, like so many other anti-gun Democrats
looking ahead to this fall's mid-term elections, Schumer has
suddenly become a supporter of gun rights. He must think the
American public is as dumb as he is. The Senate recess can't come
soon enough for Schumer, because he obviously needs a break."
Gottlieb pointed to other glaring contradictions between today's
Schumer and the one speaking in 1995.
Schumer stated May 8, "I'm of the view that you can't take a
broad approach to other rights, such as First Amendment rights, and
then interpret the Second Amendment so narrowly that it could fit
in a thimble."
"I can't understand," Gottlieb observed, "how on one hand
Senator Schumer says the right to keep and bear arms is an
individual right that should be interpreted as broadly as other
rights, and on the other hand he hasn't met a gun control bill that
he hasn't gone to bed with."
"In 1995," Gottlieb noted, "Schumer called the individual rights
interpretation a 'phony opinion.' Now, however, he is intimately
embracing the Second Amendment. In 1995, he called the Second
Amendment 'an empty cereal box in the market place of ideas.'
Today, Chuck Schumer has become a gigolo as a lover of liberty."
Also taking Schumer to task, Joe Waldron, executive director of
the Citizens Committee for the Right to Keep and Bear Arms, accused
the anti-gun New York senator of trying to reinvent himself for
political expediency.
In his May 8 statement, Schumer asserted, "States and local
communities need to be able to pass gun laws that deal with their
own particular issues. What works in one part of the country isn't
going to work in another."
"If Schumer truly believes this," Waldron challenged, "then why
is he still pushing national gun control laws? One size does not
fit all, and he's finally admitting that. States should be allowed
to establish their own level of gun control, and Chuck Schumer
should keep his unconstitutional federal gun control schemes out of
the process."
Gottlieb also recalled that in his 1995 remarks, Schumer defined
the individual rights interpretation of the Second Amendment as "a
lie."
Stated Waldron, "Maybe Schumer knows what the Constitution says,
but he couldn't care less."
Added Gottlieb, "And maybe Schumer knows what the truth is, but
he's never cared much about that, either."
The Second Amendment Foundation is the nation's oldest and
largest tax-exempt education, research, publishing and legal action
group focusing on the Constitutional right and heritage to
privately own and possess firearms. Founded in 1974, The Foundation
has grown to more than 600,000 members and supporters and conducts
many programs designed to better inform the public about the
consequences of gun control. SAF has previously funded successful
firearms-related suits against the cities of Los Angeles; New
Haven, CT; and San Francisco on behalf of American gun owners.
Current projects include several concealed carry lawsuits, a
lawsuit against the cities suing gun makers & an amicus brief &
fund for the Emerson case holding the Second Amendment as an
individual right. Web sites: http://www.ccrkba.org and
http://www.saf.org
http://www.usnewswire.com
-0-
/U.S. Newswire 202-347-2770/
05/15 21:58
Copyright 2002, U.S. Newswire http://www.usnewswire.com/topnews/first/0515-152.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
Thursday, May 16, 2002
Dr. Michael S. Brown of Vancouver is a member of Doctors for Sensible Gun Laws (www.dsgl.org) and can be reached by e-mail at rkba2000@yahoo.com.
The Justice Department, at the direction of Attorney General John Ashcroft, has informed the U.S. Supreme Court that the official government interpretation of the Second Amendment has changed.
The government now says the Second Amendment protects an individual's right to keep and bear arms, restoring the government position to its original status prior to 1939.
Ashcroft's directive was immediately followed by ritual posturing from activists on both sides of the gun debate. The anti-gun lobby loves the theory that the right to keep and bear arms is not an individual right, as are all the others mentioned in the Bill of Rights. In a tortuous revision of history, they claim that it applies only to the collective rights of state governments.
Legions of legal scholars have been coming out against this nonintuitive interpretation for the last two decades, and the gun haters are terrified that their carefully manufactured but indefensible position will finally collapse like a house of cards.
Pro-gun activists are upset that the Justice Department qualified support for individual rights by stating that the government can determine who is fit to own a gun and what kinds of guns are acceptable.
A brief look at history should put this in context. Prior to 1939, the right to keep and bear arms was universally understood as a basic human right.
The earliest gun laws, in the post-Civil War era, met little resistance because they were directed only at blacks. They required gun permits issued by white sheriffs and prohibited so-called Saturday night specials that blacks could afford. Versions of these racist laws are still in effect in some states and are popular with the anti-gun lobby.
The first federal gun control law was passed in 1934 to keep certain types of guns away from immigrants, communists and union organizers. Like many federal laws passed at the time, it was widely thought to be an unconstitutional expansion of federal power.
The legal turning point occurred in 1939 when the infamous Miller case came before the Supreme Court. No argument was offered on behalf of Jack Miller, who was conveniently deceased at the time, so the court had no choice but to find in favor of the government. The case was a setup, intended to protect the unconstitutional law passed in 1934. The justices tried to limit the damage by confining their opinion to a very specific issue, but the case has been abused and distorted beyond recognition by judges and prosecutors. It is often misrepresented in publications with an anti-gun bias.
A classic example of this occurred in the May 8 edition of The New York Times. An article about the Justice Department controversy stated, "The court's view has been that the Second Amendment protects only those rights that have 'some reasonable relationship to the preservation of the efficiency of a well regulated militia,' as the court put it in its last word on the subject, a 1939 decision called United States v. Miller."
Here is the full sentence from Miller: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
What the court really said in 1939 is that only weapons suitable for military use were protected by the Second Amendment. Today that would include M-16s and other serious hardware. If Miller were interpreted literally, many current gun laws could be reversed.
Crazy patchwork
Understandably reluctant to follow this directive, lower courts developed their own local interpretations. Given the elite position that judges hold in society, it is no surprise that they generally dislike the idea of guns in the hands of ordinary folk.
The Supreme Court has been silent for 62 years, permitting our current crazy patchwork of conflicting, illogical, inequitable and counterproductive gun laws. None have ever been proven to reduce violence and many scholars say such laws make things worse.
Ashcroft deserves credit for trying to re-establish a logical legal base for America's gun laws.
http://www.columbian.com/05162002/opinion/282548.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
The Citizens Committee for the Right to Keep and Bear Arms is promoting lawful carry of firearms for self defense in all 50 States. Ohio is a major focus due to the fact it is surrounded by right-to-carry states, has a large urban population needing guns for protection, and the pending lawsuit seeking to overturn the existing carry bans as unconstitutional.
Governor Taft (R-Ohio) has responded to CCRKBA's efforts with a letter basically stating that he will remain on the sidelines and allow others to dictate whether or not a sound concealed carry bill is enacted.
"The right of self defense doesn't stop at one's front door, so I was surprised Taft claimed to support guns for protection a home but wouldn't advance legal carry," stated Alan Gottlieb, CCRKBA Chairman. "The citizens of 43 states have proven themselves as being trustworthy with carrying firearms, so why does Gov. Taft believe that Ohio would be any different?"
Nationally, 43 states specifically allow the carrying of concealed weapons or firearms, with all but Vermont requiring either a license or permit. This could rise to 44 states if New Mexico's new concealed carry law is upheld. Of the remaining 6 or 7 states, Ohio is unique with its affirmative defense and on whom the burden of proof is placed.
"Ohio's carry bans entrap innocent people into thinking they have a right, and when people attempt to exercise that right, they are arrested and prosecuted," said Gottlieb. "This unjust system must be changed, yet the Governor continues to pretend the current scheme is acceptable. This is horrible for all Ohioans.
Read Governor Taft's letter:
http://www.ccrkba.org/pub/rkba/news/CCRKBAandTaft.htm
"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
5/16/2002
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Feature
by Physicians for Social Responsibility
Domestic violence, child advocacy, faith-based, civil rights, law enforcement, consumer advocacy, public health, legal, and violence prevention activists are all at the table. What brings this diverse group of advocates together? The gun show loophole.
In April of 2001, Senator Jack Reed (D-RI) introduced the "Gun Show Background Check Act of 2001" (S.767). PSR joined the Senator at a press conference to introduce the bill, and for the past year we have been pushing to get it through the U.S. Senate.
PSR decided to back the Reed bill for two reasons. First, it has all the components necessary to close the loophole cleanly. Sen. Reed's bill allows law enforcement officials up to three business days to complete a background check on anyone buying a gun at a gun show from an unlicensed seller. It also limits access to the National Instant Check System (NICS); only federally licensed gun dealers would be able to call in background checks (which are then performed by the Department of Justice). The Reed bill would extend Brady Law requirements that currently apply to federally licensed gun dealers so that they would apply equally to non-licensed sellers at gun shows.
The second reason is that the bill's passage should be feasible. It was passed by the Senate, in 1999, as the Lautenberg Amendment, and the citizens of both Colorado and Oregon passed referenda in 2000 to close the gun show loophole in their states. We wanted to keep the momentum going by addressing the issue again at the national level.
The very fact that the exact language of the Reed bill had already made it through the Senate once, together with the fact that we picked up Senate votes in the 2000 election, made passing the Reed bill seem easy. That has been anything but the case.
The dynamics in 2002 are quite different from the dynamics of 1999. The Senate passed the Lautenberg Amendment just weeks after 12 students and a teacher were killed at Columbine High School in Colorado. The Senate, feeling pressure to respond, passed legislation that might prevent such a bloodbath from happening again. Fortunately, we are not faced with those same circumstances today; unfortunately, Congress feels less pressure to act when not confronted with a national tragedy.
We were thrown a curve when a new group, Americans for Gun Safety (AGS), emerged on the scene with a "compromise" gun show bill introduced by two prominent national figures: Senators John McCain (R-AZ) and Joseph Lieberman (D-CT).
The NRA and the Midterm Elections
In any battle over a specific piece of legislation, politics can easily eclipse policy. In this case, our first political hurdle is the mere fact that we are trying to pass a gun violence prevention bill, the mention of which usually sends lawmakers running away at top speeds. The National Rifle Association has such a grip on Congress that it can stymie any action on such bills, no matter how reasonable.
This is especially true with midterm elections looming. We have secured the support of many Senators who solidly back the Reed bill. Many others are up for re-election in November, however, and some from moderate states, like Louisiana, Georgia and South Dakota, are having a hard time signing on -- even though they voted in 1999 to close the loophole.
The NRA has made it clear that their priority this year is to preserve the gun show loophole, and they have impressed this upon some of these moderate Senators. Some Senate staffers have told us that their Members would prefer not voting at all to openly taking a stand on this issue so close to the election. For this reason, Sen. Reed may push his bill back to the next session, after the election. But if the Democrats lose the majority during this election cycle, Sen. Reed's chance of bringing the bill to the floor would drop to nil.
This is truly a David and Goliath situation. The Washington, DC-based gun violence prevention groups are small and not always well organized, while the NRA has a large membership and an even larger reputation for mobilizing its members to vote a lawmaker out of office. Our challenge is to convince Senators to stand up to Goliath and speak out for public health and safety.
AGS and the Illusion of Compromise
Our second political hurdle is that what should be a straight-forward issue has been clouded by AGS, a well-financed opponent that is not the NRA, but rather another so-called "gun safety" group. AGS, funded by Monster.com billionaire Andrew McKelvey, was founded a year ago on the premise that the right to own a gun is inalienable, but that some restrictions apply. The AGS-backed bill introduced by Sens. McCain and Lieberman is a watered down version of the Reed bill, full of NRA-sponsored amendments from the last Congress.
The McCain-Lieberman bill is shoddy for three reasons:
It would allow states to decide individually, as long as certain criteria are met, whether to reduce the amount of time allowed for a background check from three business days to 24 hours, which law enforcement experts say would be inadequate to thoroughly check a buyer's background.
It would allow non-licensed sellers access to the National Instant Check System, opening up the possibility for fraud and abuse.
It would allocate millions of dollars to Project Exile-type incarceration programs that require gun crimes to be tried in federal court. Project Exile has been documented as a racially-influenced venture that simply crowds jails and court dockets and increases recidivism.
If passed, the McCain/Lieberman bill would damage the gun violence prevention movement on both a policy and a political level. The bill would not effectively close the gun show loophole. Guns would still land in the wrong hands. Our reputation would be damaged when the bill failed to reduce gun crime, and passage of this bill would ruin our future chance of passing real preventive legislation.
An Unlikely Coalition
These obstacles necessitated a new approach. Which brings us back to domestic violence, child advocacy, faith-based, civil rights, law enforcement, consumer advocacy, public health, legal, and violence prevention activists together at the table. The gun show loophole is the unifying issue that brings this diverse group together.
The "pro-Reed" coalition, created by PSR and the Children's Defense Fund, boasts some 30 member organizations, representing a wide variety of fields and interests, making it unique and effective. Besides PSR, the groups range from the Consumer Federation of America to the National Network to End Domestic Violence, and from the Union of American Hebrew Congregations to the American Bar Association. PSR has worked with the Children's Defense Fund to bring these groups together on a regular basis to discuss new developments and to strategize. The coalition's largest effort to date is a letter to the Senate signed by more than 300 national, state, and local groups that support the Reed bill. Each group in the coalition recruited organizations within its field (health, law enforcement, faith-based, violence prevention, consumer rights protection, etc.), allowing the coalition to gather the support of previously uninvolved organizations.
PSR also capitalized on the relationships it has within the health field to pull together a similar letter to the Senate signed by the executive directors of nine national health organizations, including the American Public Health Association and the American College of Preventive Medicine. This letter was very specific about the health risks of allowing the gun show loophole to remain open.
This diverse involvement has made an impact on Capitol Hill. When we meet with a Member's staff, they are befuddled at first to see PSR, Children's Defense Fund, Consumer Federation of America, and the domestic violence groups coming to talk to them about, of all things, the gun show loophole. But through countless meetings and follow-up calls, Senators and their staffs are starting to realize that closing the gun show loophole is not just a gun control issue; it is an overall community issue.
AGS buys flashy TV spots and radio ads supporting the McCain/Lieberman bill. Luckily, influence on the Hill can't always be bought. The groups supporting Sen. Reed's bill have a much smaller funding base, but we know how to generate a solid grassroots response. The proof: to date the Reed bill has 22 cosponsors in the Senate and the McCain/Lieberman bill has only five. The so-called "compromise" that was supposed to bring in votes from both sides backfired; the only new person AGS has brought to the table is Sen. McCain. In an odd plot twist, the NRA opposes the McCain/Lieberman bill even more vehemently than it does the Reed bill.
The Prognosis
So will we succeed in getting Congress to close the gun show loophole once and for all? If the Reed bill does not go forward -- if, for instance, Sen. Reed decides it would have a better chance next session -- we would certainly lose momentum. After our historic victory on the Lautenberg Amendment, which passed 51-50 in the Senate with Vice President Gore casting the tie-breaking vote, the bill died in House conference committee a few months later. When PSR and other groups took the bill to Sen. Reed, we had to start completely over, visiting each Senate office again, slowly educating members of Congress and gathering support. We may well get the Reed bill through the Senate, only to see it die in the conservative-dominated House.
But each time we visit the Hill, we take another step closer to getting sensible gun violence prevention legislation through Congress, something that has not happened since the 1994 Brady Act. We have forged contacts with a wide range of organizations we never even knew existed before this effort, we have educated them on the need to close the gun show loophole at the federal level, and we have established lasting relationships with them on the firearm injury prevention issue. Our stronger, broader coalition will strengthen all our violence prevention efforts -- including, if need be, one more push to make Congress close the gun show loophole for good.
http://www.jointogether.org/gv/news/features/reader/0,2061,550995,00.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
By EMILY C. DOOLEY
STAFF WRITER
PROVINCETOWN - The last two months have been hard for Rob Tosner, but Mother's Day was hell.
The day marked two months since the shooting death of Tosner's mother in a Long Island church.
Rob Tosner, co-owner of Provincetown White Wind Inn, says the man who fatally shot his mother, Eileen Tosner, two months ago should have been stopped from purchasing a gun because he had a history of violence and mental illness. The doll in foreground was once owned by his mother.
(Staff photo by VINCENT DEWITT)
Eileen Tosner, 73, was shot dead March 12 as she sat worshipping at her Lynbrook, N.Y., church. A priest, the Rev. Lawrence Penzes, was also killed in the attack.
"Every time I go to Long Island now, I go back to that church," Tosner said at his Provincetown home. "I actually sat in the same seat my mom was in. I find it comforting. She went there for solace and strength when she needed it. I go there to feel that."
The gunman, Peter J. Troy, 34, has been charged with two counts of first-degree murder and one count of attempting to kill a police officer.
The police say Troy has a history of mental illness, had been hospitalized and was the subject of a restraining order, obtained by his own mother. Despite his background, he passed a background check and purchased a rifle, which was allegedly used in the double homicide.
"I find myself reading the obituaries more," Tosner said. "I look at people's ages and think about how she was short-changed. In a lot of ways, it's still unreal."
Loophole in the law
Tosner believes the incident highlights a loophole in the laws regarding the licensing of gun owners.
"He was known to have a violent background, yet he legally was able to have a gun," Tosner said. "It makes sense that someone who has a history of violent behaviors and mental illness should not have a gun."
U.S. Sen. Charles E. Schumer and U.S. Rep. Carolyn McCarthy, both of New York, are sponsoring a bill that would block people who are subject to restraining orders from buying handguns or rifles.
The bill would also require states to notify federal officials when anyone who has been committed to a mental institution attempts to buy a gun.
"Had the federal system that checks all gun purchases picked up on the fact that Peter Troy was both mentally ill and was subject to a restraining order, he would never have been sold a rifle and the murders may never have occurred," Schumer said, as he introduced the legislation. "All the signs were there and all the signs were ignored."
Federal law now restricts the purchase of a gun only if an intimate partner or child of a partner requests the restraining order. It says nothing about parents, friends or other family members. In 1998, Troy violated a restraining order issued to protect his mother.
"The idea that you're too unstable to buy a gun if there's a restraining order against you from your spouse or child, but not your parents or anyone else makes no sense whatsoever," Schumer said.
The Gun Control Act bars people who have been declared mentally ill or committed to a mental institution from having firearms, but current background checks consult only federal records. Schumer's bill requires that states notify the Federal Bureau of Investigation about mental records, which would significantly bolster current background checks.
Seventeen states currently provide records to federal officials. In Massachusetts, the state conducts background checks, including an examination of mental health records.
But according to the General Accounting Office, background information is lacking for 2.6 million people who have been involuntarily institutionalized.
"Right now, all kinds of people with serious problems - the mentally ill, the criminally violent, fugitives from justice - are able to purchase guns simply because our background checks are not as comprehensive as they should be," the senator said.
Tosner, 39, and his partner, Michael Valenti, 46, know there could be opponents to the bill, especially from mental-health advocates and those supporting the right to private medical records.
"It's hard. You look at one situation and it seems to make sense but then you have to look at the bigger picture," Valenti said. "You have to be careful about the definition of a mental illness."
"I'd rather err on the side of caution than individual rights," Tosner said.
NRA support
The idea of the bill has received support from an unlikely source - the National Rifle Association.
"We are supportive of the idea of all relevant records beings included in the background check system," said John Frazer, a federal lobbyist for the National Rifle Association.
"We believe if there is an official public record of a person being adjudicated mentally incompetent by legal authorities, then those records should be available through the federal instant check system."
Frazer said the NRA supported an amendment to the 1998 Brady Bill, which established the National Instant Criminal Background Check System. It allows federal firearms licensees to find out if selling a firearm to a person will violate state or federal law. Massachusetts is one of 16 states that acts as the licensee.
Tosner is prepared to testify on behalf of the bill. He said staying faithful to the religion his mother so adored and stopping another death would be a tribute to her memory.
Eileen Tosner attended Mass at her parish every day and was active in the church. A mother of five who lost two sons to cancer, she relied on her faith to help her.
"We're keeping her faith," he said. "But I'm not grieving for her, I'm grieving for us." http://www.capecodonline.com/cctimes/acall17.htm
"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
Friday, May 17, 2002
By Cal Thomas
Tribune Media Services
Gun control advocates are upset over Attorney General John Ashcroft's declaration last week, outlined in a legal brief before the Supreme Court, that the Second Amendment to the Constitution protects an individual's right to keep and bear arms irrespective of any ties to a state militia.
Editorials in The New York Times and The Washington Post denounced Ashcroft as flying in the face of history and legal precedent. In fact, Ashcroft has the law and history on his side. Both have recognized not only an individual's right to keep and bear arms as a last defense against government tyranny, but in many cases, states have required citizens to own guns to protect their freedoms and deter criminals.
A reading of The Federalist papers, in which James Madison, Alexander Hamilton and John Jay expand on the meaning of the Constitution, shows that the militia the Second Amendment refers to was to be comprised of armed private citizens. Madison wrote in Federalist Paper 46 that an armed citizen "forms a barrier against the enterprise of ambition," which the Founders understood from history and their "British oppressors" to be overreaching government.
In debate over the Constitution, Samuel Adams sought a guarantee in the Bill of Rights that "The said Constitution shall never be construed to authorize Congress to . . . prevent the people of the United States who are peaceable citizens from keeping their own arms." At the Virginia Constitutional Convention, George Mason said Britain had plotted "to disarm the people -- that was the best and most effective way to enslave them," while Patrick Henry noted, "The great object is that every man be armed . . . Everyone who is able may have a gun."
Richard Henry Lee, a signer of the Declaration of Independence, proposed that "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
Many believe the National Guard is the same as a state militia -- a reserve force trained at federal expense for immediate service in the event of an emergency. But the militia of which the Founders spoke was something entirely different. They viewed an armed citizenry that could be mustered into a fighting force or used to defend the rights and property of the individual as a last defense against those who would deny such rights.
In 1982, the U.S. Senate Subcommittee on the Constitution published a carefully documented report on The Right to Keep and Bear Arms, including a history of events leading to passage of the Second Amendment.
"The right to keep and bear arms as a part of English and American law antedates not only the Constitution, but also the discovery of firearms," the report notes. "Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty. This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility." While many English rights were "abridged" over the centuries, the right to bear arms was mostly retained.
In 1623, Virginia forbade colonists to travel unless they were "well armed." In 1631, Virginians were required to engage in target practice on Sunday and "bring their peeces (sic) to church."
By 1658, every Virginian was to have a firearm at home, and in 1673 state law said that a citizen who claimed he was too poor to buy a gun "could have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so."
When Britain began to increase its military presence in the colonies, Massachusetts called on its citizens to arm themselves. One colonial newspaper argued that this was legal, citing Blackstone's commentaries on English law, which listed "having and using arms for self-preservation and defense" among the "absolute rights of individuals."
When New Hampshire cast the ninth vote needed for passage of the Constitution, it called for a Bill of Rights including the provision that "Congress shall never disarm any citizen unless such as are or have been in actual rebellion." The focus was on the law-breaker, not the law-abiding gun owner, who was seen as a defender of individual liberty and national freedom.
There is much more documented in the 1982 report (available through the Government Printing Office). Every citizen should read and study it, including editorial writers and the Supreme Court. Hard-won rights are not easily restored once they have been surrendered.
http://www.sltrib.com/05172002/commenta/737534.htm
"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
By MICHAEL C. DORF
----
Wednesday, May. 15, 2002
In two recently filed briefs in the United States Supreme Court, Solicitor General Theodore Olson told the Court that the Justice Department had reversed its longstanding position on the Second Amendment.
Prior Republican and Democratic Administrations alike had endorsed the view that the right to bear arms protected by the Second Amendment is a right of states to organize their militias, and not a right of individual citizens, outside state militias, to gun ownership. However, two identical footnotes in the two briefs Olson submitted take a sharply different position.
Olson's footnotes state: "The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, 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 misuse."
In other words, under the Administration's new view, the federal government simply lacks the power to regulate most gun-ownership by law-abiding citizens. Pursuant to this view, many provisions of federal law, including those enacted as part of the Brady Handgun Violence Prevention Act, are void as unconstitutional.
Perhaps the Justice Department's view would not have such far-reaching consequences if a handgun were deemed the kind of firearm that is described in the footnote as "particularly suited to criminal misuse." However, Olson probably did not intend this language to create such a broad exception to the general right. Rather, he probably had something like automatic weapons and armor-piercing ammunition in mind.
Moreover, the Justice Department may mean its interpretation of the Second Amendment to limit not only the federal government, but also the states. To adopt that position, the Supreme Court would have to overrule its 1886 decision in Presser v. Illinois. If the Court did so, its ruling would have very far-reaching consequences indeed, because the strictest gun control laws are enacted at the state and local level.
Given these stakes, it is hardly surprising that the Justice Department's about-face has sparked renewed debate over what the Second Amendment means. The now-famous footnote has also led to criticism of the manner in which the Department has gone about changing policy. Most of that criticism, however, is undeserved.
The Cases, and Contexts, In Which the Footnote Appears
The Justice Department's controversial footnote appears in briefs in opposition to petitions for writs of certiorari - that is, requests that the Supreme Court hear appeals - in two cases.
The cases are Haney v. United States and Emerson v. United States. The Justice Department does not believe either case should be heard, for it agrees with the decisions of the Tenth and Fifth Circuits, respectively, in each case.
In Haney, the United States Court of Appeals for the Tenth Circuit upheld the conviction of an Oklahoma man who had walked into a police station and confessed to owning two unlicensed machine guns in violation of federal law. The Tenth Circuit rejected Haney's contention that he was entitled to possess these weapons under the Second Amendment. In so holding, it relied on its own and Supreme Court precedents that restrict the Amendment's application to cases involving state-organized militias.
In its footnote, the Justice Department disagreed with the Tenth Circuit's ruling that the Second Amendment applies only to militias, and not individuals. However, the Department nevertheless agreed with the lower court's decision to uphold Haney's conviction. That makes sense, since Haney's machine guns are "particularly suited to criminal misuse" and thus, in the Department's view, probably not the kind of guns an individual has a Second Amendment right to possess.
In Emerson, the United States Court of Appeals for the Fifth Circuit upheld the conviction of a Texas man who was convicted of possessing a firearm after having been ordered not to threaten or harm his daughter or his estranged wife. Emerson argued that the federal law criminalizing firearms possession under such circumstances violated his rights under the Second Amendment.
In a lengthy opinion, the Fifth Circuit endorsed the claim that the Second Amendment protects an individual right to firearm possession, but went on to find that the government interest in keeping firearms out of the hands of dangerous people just barely justified overriding Emerson's rights.
Here, the Justice Department appeared to agree with both major points of the lower court's analysis. In the footnote, it expressed the view that the Second Amendment protects an individual right to firearm possession. And like the lower court, it also appeared to deem Emerson, in the footnote's language, an "unfit person[]," who may be denied the right to firearms consistent with the Amendment.
The Merits of the Second Amendment Issue: A Heated, Ongoing Debate
In a column that appeared shortly after the Fifth Circuit's decision in Emerson, I argued that the court got it wrong. The people who drafted and ratified the Bill of Rights worried that the federal government would create a large standing army. By preserving state militias, they hoped to limit federal reliance on standing armies. Although it is possible to read the Second Amendment as protecting an individual right of firearm possession unconnected with the militia, in light of its text, original understanding, and subsequent development, in my view that is not the best reading.
Others--including the Fifth Circuit, the Bush Justice Department, some scholars, and a large number of readers who sent me polite and not-so-polite emails--disagree. That, of course, is their right under the Second Amendment's neighbor, the First Amendment. The debate over how to interpret the Second Amendment will continue as long as there are divisions over gun control, for in America, policy questions are frequently framed and discussed in constitutional terms.
Not all of the criticism of the Justice Department has been couched as disagreement over how to interpret the Second Amendment, however. The Department has also been charged with a variety of procedural irregularities. Are these charges fair? Mostly they are not.
Abandoning the Role of Zealous Prosecutor? An Unfair Criticism.
Some commentators have questioned whether it is appropriate for the Justice Department--the federal agency charged with the duty to enforce the criminal law--to be arguing that a power claimed by Congress (here, the power to regulate firearms) is unconstitutional.
Under this view, the job of the prosecutor is to be a zealous advocate for law enforcement. Leave it to the defense bar to raise constitutional objections and attempt to protect individual rights.
This complaint, however, is misguided and the view it expresses is ultimately dangerous. The incentives for professional advancement already lead prosecutors to over-value law enforcement at the expense of civil liberties.
Providing defendants with zealous attorneys is one mechanism by which our legal system attempts to prevent abuses, but given the prosecutor's power and discretion, it is hardly sufficient. Would we want a Justice Department that zealously advocated the admission in court of coerced confessions or perjured testimony, on the theory that it is up to defense lawyers alone to protect the Fifth Amendment right against self-incrimination and the Sixth Amendment right to confront adverse witnesses?
A Clinton Administration Precedent Shows Olson Is Within His Proper Role
Consider a recent precedent. A federal statute had purported to overrule the Supreme Court's 1966 decision in Miranda v. Arizona. If the statute had been held valid, then a suspect's confession would, in some instances, have been admissible in court even when he had not been read his Miranda rights. When the question of the statute's constitutionality arose, the Clinton Administration's Justice Department declined to defend the statute.
The Department took the view that the statute was unconstitutional and that, although there were respectable arguments that could be made in its defense, those arguments were unpersuasive. The better view, it believed, was that Miranda rights were constitutionally-mandated, and thus a statute purporting to eliminate them was unconstitutional.
In declining to defend the anti-Miranda law, and thus preferring individual rights over a Congressional statute, was the Clinton Administration shirking its prosecutorial duty? On the contrary, it was admirably declining to enforce what it viewed as an unconstitutional law.
Nor did the Clinton Justice Department's stance prevent the Supreme Court from ultimately deciding the issue. When the Solicitor General declined to defend the law's constitutionality, the Court appointed University of Utah law professor Paul Cassell, a prominent critic of the Miranda decision, to argue for the statute's constitutionality.
Cassell did an admirable job. Nevertheless, the Court, in a 7-2 decision in the 2000 case of Dickerson v. United States ruled the statute unconstitutional. (Cassell, meanwhile, has been nominated for a seat on the federal district court in Utah.)
If the Clinton Department acted properly in defending Miranda warnings that it saw as part and parcel of the Fifth Amendment right against coercive interrogation, then the Bush Administration is now acting properly in defending an individual right to bear arms that it sees as part and parcel of the Second Amendment.
Of course, one might think that then, the Clinton Administration's Fifth Amendment view was right, while now, the Bush Administration's Second Amendment view is wrong. More than one observer has commented on Attorney General Ashcroft's willingness to curtail nearly all civil liberties save the liberty to possess a gun.
I am sympathetic to that complaint, as I indicated in an earlier column on the Attorney General's refusal to use a federal database to identify aliens in illegal possession of firearms. But the charges of misreading the Constitution and misplaced priorities are ultimately claims about the substance of the Justice Department's policy, rather than the appropriateness of its decision not to argue a point it does not believe.
The proper response to Olson's position is to address it on the merits - not to contend it is improper or unethical for him to adopt it. Indeed, one might argue that it might be improper or unethical for him to do the reverse: to argue against the recognition of an individual right in which he sincerely believes.
A Gratuitous Point? Not At All.
Commentators have also complained that the Justice Department gratuitously went out of its way to inject its Second Amendment views into cases where resolution of the issue is unnecessary. The government itself argues in both Haney and Emerson that the petitioners should lose regardless of whether the Second Amendment protects militias or individuals. So why bring up the Second Amendment at all?
The answer is that both Haney and Emerson raise Second Amendment claims in their petitions, and both the Tenth and Fifth Circuits addressed the merits of those claims. It takes four Justices to decide to accept a case for review. If four Justices believe that reading the Second Amendment to confer an individual right might result in the reversal of either Haney's or Emerson's conviction, then they need to know that the Justice Department is not prepared to argue for the militia-only interpretation of the Amendment.
They need to know, in other words, that they should be thinking about appointing someone to argue the position in the Justice Department's stead, as they did in Dickerson. Accordingly, it would have been irresponsible for the Justice Department not to have informed the Court of its change of heart on the meaning of the Second Amendment.
Burying the Point in a Footnote? It Still Made Headlines.
Another line of criticism takes aim at the Solicitor General's relegating the Second Amendment point to a footnote. This objection resonates with a broader claim about the Bush Administration's domestic policy. The claim is that the President and his ministers present themselves as moderates to the general public, but they secretly work to advance an extreme right-wing agenda that they communicate to their activist constituency through winks, nods, and now footnotes.
Whatever truth there may be to this charge in other contexts, if the Solicitor General's goal in explaining the Justice Department's position was to hide it, the tactic was a spectacular failure. The policy shift has been the subject of numerous front-page news stories and op-eds.
For Whom Does the Solicitor General Speak? Why Positions Change Over Time.
Finally, the Solicitor General has been criticized for changing Justice Department policy. For example, Andrew Frey, a former deputy solicitor general, was quoted in the New York Times as complaining that the militia-only interpretation of the Second Amendment "has been the government's position for more than 60 years." Suggesting that the Justice Department bureaucracy should be insulated from political judgments, Frey continued: "People who happen to be in office temporarily shouldn't use the office to promote their personal views."
The fact that the Justice Department has long adhered to a position does not suffice as a reason for continued adherence to that position. It is admirable that Justice Department employees have a sense of professionalism and fairness that transcends loyalty to any particular administration. Yet, like any federal agency, the Justice Department should be permitted to change its position in response to changed circumstances, changed social mores, and yes, even political changes.
The Administration had every right to change its policy on the Second Amendment. It acted appropriately by announcing that change in a footnote in cases in which the issue was not essential to the bottom-line outcome. The problem here is the substance of the Administration's position, and the debate should be fought on its merits. The procedural issues are merely a distraction.
http://writ.news.findlaw.com/dorf/20020515.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
Missoulian Opinion
Summary: Honoring the individual - not collective - right to own firearms merely acknowledges the way the Second Amendment has long been applied.
The idea that the Bill of Rights protects an individual's right to own a gun hardly is news to most Americans. But the Bush administration's simple acknowledgment of that right made big headlines around the country this past week.
The excitement arose from a couple of footnotes included in briefs Solicitor General Ted Olson filed with the Supreme Court in connection with two appeals before the court.
Olson, who in essence spoke for the president and attorney general, wrote this: "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."
Like other constitutional rights, the right to bear arms isn't absolute, the solicitor general added. It's 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 misuse."
What's all the fuss about? While Americans argue endlessly about gun rights, the administration's position accurately characterizes the way the Second Amendment has been applied in this country.
It's true that, since the last Supreme Court opinion that directly addressed the issue, the government's generally argued that the Second Amendment guaranteed a collective right of the people, not an individual right - that we could have an armed militia to defend the country, but not necessarily guaranteed individual right to own guns.
But the collective-right theory has never really been applied. The political reality is that Americans enjoy the individual right to own guns, limited by reasonable restrictions intended to protect public safety.
The Supreme Court could rather easily clarify this, but probably won't. It's carefully avoided every opportunity to alter the status quo regarding gun ownership.
The right recognized by the Bush administration doesn't, as critics contend, undermine reasonable and necessary gun control in America. It merely requires that the government show a compelling state interest before infringing anyone's right, as is the case with other rights - such as our right to voice this opinion. Recognizing the individual right to own guns renders illegitimate attempts to ban or overly restrict ownership of guns just because many people fear them and blame these inanimate objects for crime, suicides and other social problems.
The Bush administration's position changes nothing. It merely puts in a written form something the attorney general and president have previously argued verbally. And the position accurately reflects the way we've long treated gun-ownership rights in America, regardless of the debate about the way we should treat them.
http://www.montanaforum.com/rednews/2002/05/15/build/freedoms/gunsop.php?nnn=3
"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
May 17, 2002
During the final presidential debate in 2000, George Bush was asked about a National Rifle Association boast that if he won the election, the gun lobby would operate out of the Oval Office. No need to worry, he replied. "I'm a pretty independent thinker."
It turns out that the NRA was not far off the mark. It has found a home not in the Oval Office but in Attorney General John Ashcroft's Justice Department.
The department recently put forth a radical interpretation of the Second Amendment long advanced by the NRA. In two Supreme Court briefs, lawyers for Justice contend that the Second Amendment "broadly protects the rights of individuals" to own guns. The department discarded the long-held constitutional view, affirmed in a 1939 Supreme Court decision, that the "right to bear arms" refers to state militias, not individuals.
Every administration prior to this one has backed the high court's1939 interpretation. Although Mr. Ashcroft previously endorsed the NRA interpretation, he pledged at his Senate confirmation hearings not to impose his personal views on government policy. So much for that pledge.
Mr. Ashcroft's opinion is that the right to own weapons of all sorts is similar to free speech. If that interpretation were to prevail in the Supreme Court, Americans might as well prepare to do away with a broad array of sensible gun-control laws enacted at the federal, state and local levels.
The NRA acknowledges that it will use the Justice Department briefs to challenge various gun laws now in force. Examples could include required background checks before sales, regulation of concealed weapons and bans on assault rifles.
The NRA's evaluation of Mr. Ashcroft: "A breath of fresh air to freedom-loving gun owners." As for the majority of freedom-loving Americans, they had better run for cover. Guns are now on the altar where Mr. Ashcroft presides. http://www.ctnow.com/news/opinion/editorials/hc-ashcroft.artmay17.story
"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
By J. Patrick Coolican, Journal Inquirer May 16, 2002
SOMERS - The lawyer for a local gun club said its members would fight the state Appellate Court's reversal Wednesday of a lower court ruling that gave the club title to 23 acres it has used for decades but never bought.
"The Somers Sportsmen's Association will not lie down and take this without a fight, and I can assure Mr. Tyler that," John H. Parks said, referring to Bruce Tyler, the Somers lawyer and land developer with whom the gun club is in dispute.
"I'll let the decision speak for itself," Tyler said in refusing further comment.
In May 2000, New Britain Superior Court Judge Arnold Aronson said the Sportsmen's Association met the standard for "adverse possession" - a type of squatter's rights - and granted the club the deed.
Parks argued in the case that the association has been on the land since 1957, when Robert A. Galbraith - who owned 45 acres on Denison Road in Somers and 20 acres in Stafford - gave verbal permission for the club to operate on 23 acres of his land.
The permission to use the land "terminated on the date of Galbraith's death on Nov. 23, 1967," Parks argued, and none of the subsequent owners ever gave the club permission to be there.
That constituted adverse possession, Aronson ruled.
Such a title to the land voided an October 1997 sale by Galbraith's nephews - Tyrone W.G. Marshall and Thomas V. Marshall - to Tyler's company, Top of the Town LLC.
Aronson concluded that the claim of "adverse possession spans 30 years of open, exclusive, and hostile use." In this context, hostile means "possession against the claims of others, including the record owner," according to Black's Law Dictionary.
Writing for the court, Judge William J. Lavery rebuked Aronson's ruling. "The court improperly put the burden on the plaintiffs to establish their ownership interest rather than on the defendants to show that its possession was under a claim of right."
In other words, Aronson improperly required Top of the Town to prove ownership rights. The Appellate Court shifted that burden back to the Sportsmen's Association, forcing Parks to bring "clear and positive proof" that the club is entitled to adverse possession.
Lavery's decision argues that the gun club fell short of that standard. Galbraith's death in 1967 did not change the verbal agreement made between the property owner and the gun club.
"The defendant's occupation since 1967 is not a difference in kind, but in intensity," he wrote. In other words, the character of the gun club's occupation of the land did not change upon Galbraith's death in 1967.
"Not only does the evidence not logically support the conclusion that the defendant gave notice that it was occupying under a claim of right, but it rather supports that it recognized that it occupied the land with permission."
Lavery cited that the gun club paid property taxes on improvements it made to the property, but not on the underlying property, as evidence that they recognized they did not own the property, but were there with permission.
"The defendant seemed to recognize expressly that it was occupying the land with permission until shortly before the plaintiff Top of the Town issued the termination notice," Lavery writes.
By recognizing it occupied the land by permission, Lavery reasoned, the gun club cannot claim "adverse possession."
Parks took particular issue with the court's decision to shift the burden of proof to the gun club.
"They're surmising that the trial court shifted the burden of proof, even though that was never stated in the trial opinion," he said.
"It brings me to the conclusion that they wanted to go out and find an issue no one raised and grant a decision to the plaintiff," he added.
Parks said the gun club members have many legal options available to them, but that no decision had been made as to which they would pursue.
"We will fight this vigorously," he said.
Christopher Harrington, lawyer for the Top of the Town, was not available for comment.
http://www.zwire.com/site/news.cfm?newsid=4161026&BRD=985&PAG=461&dept_id=161556
"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
Cherry Creek schools 'didn't mean to tread'
By Johnn Sanko, News Capitol Bureau
May 17, 2002
The Cherry Creek School District won't be asking youngsters whether their parents have guns at home the next time children are caught playing make-believe gun games by pointing their fingers, superintendent Mitchell Moses said Thursday.
Some parents were angered -- and a state lawmaker got involved -- when a principal disciplined several boys for their game-playing and then asked them if their parents kept guns.
"We're instructing principals to the effect (that) if they have concerns about students' behavior and their ability to access weapons, they should contact the parents," Moses said. "We didn't mean to tread on family privacy."
But the incident was too much for Rep. Shawn Mitchell, R-Broomfield, who fired off a letter Wednesday to Moses and to Darci Mickle, principal of Dry Creek Elementary School.
"If school officials on the scene stop undesirable play to protect the playground atmosphere, I applaud them," Mitchell said. "But . . . that was totally inappropriate. Gun ownership is a private matter."
Mitchell became concerned after learning that seven youngsters from Dry Creek Elementary got in trouble in March for using their fingers as pretend weapons in a battle against imaginary aliens.
It turns out they weren't the only ones getting into such a jam. At Cottonwood Creek Elementary in the same district, Nicholas Carpenter, a 7-year-old first-grader and son of former Gov. Roy Romer's chief of staff, Jim Carpenter, got a one-day in-school suspension for the same thing, according to his father.
"First-grade boys play around like this," his dad said. "He was obviously upset about it, and we were, too. We thought it was an overreaction."
Moses promised that there would be no repeats of what happened at Dry Creek, although he said inappropriate play involving pretend guns still would get attention. He said he had not heard of the other incident but would check into it.
"Sure, it's boys being boys. I did it myself when I was a youngster. Unfortunately, after Columbine, it's one of those things we have to take out of the school yard," Moses said.
http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_1151692,00.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
Friday, May 17, 2002
How did Utah's gun-toting lunatic fringe manage to shake me down for some extra change to purchase courthouse gun lockers? I mean, what brilliant politicians thought this one out? Were they inspired by the same geniuses swarming to the Republican caucuses to take away their Second Amendment rights to blam-blam Bambi and to appoint the United Nations to oversee their paramilitary group?
Just imagine the poor suckers who have to implement this legislation. "Oh, this, officer? This is my concealed weapon. Could you please direct me to the gun lockers?" asks John Doe. "Sure, follow me," directs Officer Frank Bambi. "Blam! Blam! Blam!" goes John Doe's gun. "Thanks for the keys, Officer Bambi," smirks John Doe, as he takes the officer's gun and heads to the gun locker for additional firepower.
The fact is, in a place where death is decreed, liberty is lost, families are torn apart and fortunes are redistributed, this and other scenarios are a reality and no one, except the court house security, should be packing heat, even for a moment.
Moreover, it's fiscally irresponsible. Millions will be paid to build, maintain and provide personnel and security to oversee these gun lockers. Ironically, it's most likely the same legislators who passed this marvel of a how-did-we-ever-do-without-it law who would claim to be the most fiscally conservative. This group would also be likely to metaphorically blam-blam you or me if we suggested that instead of paying for courthouse gun lockers, we provide child care for kids who, like guns, can't be taken into court. Or better yet, to ensure a generation of responsible gun-loving Americans, I suggest we combine the gun lockers and child care with a courthouse firing range so kids can be taught proper Second Amendment interpretation, gun safety and marksmanship.
On the other hand, if there is a demand for these services, why don't our legislators just use their own money, instead of ours, to provide them? Who knows, maybe they could even turn a profit.
LOREN M. LAMBERT
Salt Lake City
http://www.sltrib.com/05172002/public_f/737527.htm
"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
By CHRISTOPHER BOBBY Tribune Chronicle
WARREN - The gun wasn't loaded.
And a judge and deputies working Courthouse security were convinced that a local attorney was reaching for some kind of special effect or impact when she pulled out a pistol during a civil trial Wednesday in attempts to sway a jury. They all said there was no illegal intent.
But defense attorneys Richard Bush and Daniel Dascenzo called the stunt prejudicial and perhaps misguided.
The incident happened during closing arguments by attorney Irene Makridis, who is representing plaintiff Henry Malone.
Malone, a WCI employee who was on strike in 1995, is suing another longtime company employee, David Provitt, for firing a shot at him Sept. 27, 1995.
After Makridis pulled out the gun during her closing arguments in the trial, defense attorneys called for a mistrial but were denied by Common Pleas Judge Peter Kontos.
The judge made it clear to Makridis that the gun was not a piece of evidence in the case and could not be treated like a murder weapon, for example, which prosecutors have been known to handle and show to jurors. She said a female police officer loaned her the weapon to use when she was cross-examining a defendant.
Deputies who screen visitors to the courthouse often extend a courtesy to local members of the bar, who are officers of the court during screening.
Normally, deputies work at a desk and view people passing through a metal detector. Probationeers and casual visitors must be issued visitors passes. And out-of-town lawyers also are quizzed and asked to produce a Supreme Court badge that identifies them.
Kontos pointed out that the weapon Makridis displayed was not even the same kind used in the 1995 incident on the strike line.
Malone claims the shot caused him to scramble for cover and ram into a car, injuring his shoulder and causing him and his wife emotional distress.
Makridis asked the jury of five men and three women for at least $25,000 in her closing arguments Thursday.
The jurors, who will continue their deliberations this morning, were shown videotape of the scene on the strike line during the highly publicized and sometimes violent labor dispute.
Dascenzo said Malone doesn't deserve a penny since he produced very few medical bills and testimony from doctors, except for a physician who never examined Malone. The defense attorney questioned why other nearby strikers were never called to testify on behalf of their ''union brother.''
Dascenzo also said in his closing arguments that after bricks were thrown at Provitt, a safety officer at the plant, he was entitled to defend himself.
He said one brick just missed his client's head and landed in the bed of his pickup truck.
Dascenzo said Provitt retrieved the gun he carried for protection during the strike and fired shots over heads and over the 25-foot-high building that they were standing in front of.
http://www.tribune-chronicle.com/news/story/05172002_new10.asp
"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