2nd amendment news

Josey1

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

Josey1

Deciding who owns `right to bear arms'
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

Josey1

WHO POSSESSES THE RIGHT TO BEAR ARMS? IN ONE VIEW, IT'S THE INDIVIDUAL, NOT THE STATE

HISTORICAL INTERPRETATION

The Bush Justice Department's May 6 decision to support an individual's right to own guns independent of a militia is a reversal of previous administrations' positions. But the author argues that there is ample evidence to show that the individual right to own guns was well-accepted in the 1700s and 1800s. He lays out his evidence in the chronology below, and also shows how opinions shifted in the 1900s, when the first major federal gun-control laws were passed.

1765: Sir William Blackstone, a powerful influence on the Framers' thinking, publishes his famous ``Commentaries on the Laws of England.'' He describes the British right to bear arms, a predecessor to the Second Amendment, as one of ``the rights of the subject'' -- in other words, an individual right.

1776: Pennsylvania enacts the first state bill of rights, which protects the right to bear arms gun-ownership right from being abridged by the state. This provision and similar ones in other early state constitutions are evidence that the right to own guns was aimed at constraining state governments rather than empowering them to form militias.

1788: New York, North Carolina and Virginia demand that Congress secure the right to bear arms, and they define ``militia'' as the citizenry at large. Rhode Island makes a similar demand in 1790.

1791: The U.S. Bill of Rights is enacted, including the Second Amendment: ``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.'' The phrase ``the right of the people'' is also used in the First and Fourth amendments, which secure individual rights to petition the government and to be free of unreasonable searches and seizures.

1792: Passage of the federal Militia Act, which defines ``militia'' as all able-bodied white male citizens ages 18 to 45 -- not as a small National Guard-like group. Constitutional amendments passed after the Civil War eliminate the racial restriction.

1803: St. George Tucker, the first prominent American legal commentator, publishes his edition of Blackstone's Commentaries, applying them to U.S. constitutional law. He says the Second Amendment prevents the government from disarming the citizenry.

1833: U.S. Supreme Court Justice Joseph Story, the leading American constitutional commentator of the early 1800s, in his ``Commentaries on the Constitution of the United States,'' describes the Second Amendment right to bear arms as belonging to ``the citizens,'' and echoes Tucker's view.

1866: Congress enacts the Freedmen's Bureau Act. Part of it aims to protect the ``constitutional right to bear arms'' for black people, alongside their rights to ``personal liberty'' and to owning property.

1880: Michigan Supreme Court Justice Thomas Cooley, the leading American constitutional scholar of the 19th century, stresses in his ``General Principles of Constitutional Law'' that the right to own guns belongs to all the people, not just a small subgroup.

1934: The National Firearms Act -- the first major federal gun-control law -- is enacted. It is mostly aimed at weapons associated with organized crime, such as machine guns and sawed-off shotguns.

1939: The U.S. Supreme Court, in United States vs. Miller, says the Second Amendment protects only those arms that have ``some reasonable relationship to the preservation or efficiency of a well-regulated militia.'' But the court also stresses that ``militia'' means ``all males physically capable of acting in concert for the common defense.'' The court does not say that the right belongs to the states or the National Guard. It is the court's only modern Second Amendment decision. (From 1820 to 1998, the court has referred to the Second Amendment 28 times, usually tangentially. Twenty-two of the 28 opinions quote only the right-to-bear-arms clause, without mentioning the militia language.)

1942: Two lower federal court decisions treat the Second Amendment as securing a states' right, beginning a trend that continues to this day.

1956: The current Militia Act is passed, defining ``militia'' as all male citizens age 17 to 45. (Given recent constitutional decisions, today this probably includes women, too.)

1960: Sens. John F. Kennedy and Hubert Humphrey express support for the ``right of each citizen'' to bear arms. Their views illustrate that even as lower federal courts adopted a states-right view of the Second Amendment, many politicians and average citizens continued to view the right as an individual one.

1968: The Gun Control Act of 1968 is enacted. It requires professional gun dealers to get licenses, bans felons from possessing guns and sets up a variety of other gun controls. This marks the start of a 30-year period in which Congress enacts a string of gun-control laws.

1986: The bipartisan Firearms Owners' Protection Act is enacted. It specifically asserts that the right to bear arms is an individual right.

2000: Liberal legal scholar Laurence Tribe of Harvard Law School concludes, in his widely respected Constitutional Law treatise, that the Second Amendment secures a individual right to own guns. His position is in line with many other recent legal writers, conservative and liberal alike.

2001: In United States vs. Emerson, the 5th U.S. Circuit Court of Appeals rules that ``the Second Amendment does protect individual rights,'' but allows ``limited, narrowly tailored specific exceptions or restrictions.'' This is the first time a federal court of appeals adopts the individual-rights view. Emerson was accused of possessing a firearm while under a domestic restraining order.

2002: The Department of Justice adopts the individual-rights view in two filings to the Supreme Court, one on the Emerson case and another on a case involving a ban on unlicensed machine gun possession.

This timeline is by Eugene Volokh. For the documents listed in this timeline, go to http://volokh.blogspot.com and click on ``Sources on the Second Amendment.'' http://www.bayarea.com/mld/bayarea/3287105.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

Josey1

Second Reading

The debate over the right to keep and bear arms is only beginning.

By Jacob Sullum



Did Attorney General John Ashcroft provide ammunition to a Taliban fighter? That is the thrust of a story that appeared in The New York Times on May 16 under the headline, "Lindh Wants Charge Dropped Using Justice Dept. Argument."

John Walker Lindh's lawyers argue that punishing him for carrying a gun in Afghanistan would violate his Second Amendment right to keep and bear arms. They note that the Justice Department has taken the position that the amendment applies to individuals.

But Lindh's lawyers also argue that charging him with supporting foreign terrorist organizations violates his First Amendment right to freedom of association. Oddly, the headline in the Times did not read, "Lindh Wants Charges Dropped Using ACLU Argument."

The decision to play up the Second Amendment angle suggests that the Times is eager to highlight the dire consequences of taking gun rights seriously. Only a week before, in a front-page story, the paper had warned that Ashcroft was "reversing decades of official government policy on the meaning of the Second Amendment."

For many years gun control advocates have argued that the right to keep and bear arms is no more relevant to contemporary policy debates than the right to keep soldiers from living in your house during peacetime. But just when they had gotten used to treating the Second Amendment like a buried relic, it began to surface in some alarming places.

Last year, for example, the U.S. Court of Appeals for the 5th Circuit concluded that "the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans." Attorney General John Ashcroft endorsed this position in a November 9 memo to federal prosecutors.

That memo was appended to two Supreme Court briefs filed by the Justice Department this month. In one of them, Solicitor General Theodore Olson said the 5th Circuit's decision "reflects a sounder understanding of the scope and purpose of the Second Amendment" than the position favored by anti-gun activists, who say the Framers only meant to protect a state's right to maintain a militia.

Having struggled for so long to make this position seem credible, despite a mountain of historical evidence to the contrary, gun controllers are understandably dismayed at the possibility that the Justice Department will persuade the Supreme Court to reject it once and for all. But they may find it easier to live with the Second Amendment than they thought.

The 5th Circuit's recognition of a constitutional right to own a gun did not stop it from upholding a federal law that strips people of this right when they are subject to a restraining order. The man who challenged the law was a Texas physician going through an acrimonious divorce, and the court found that the possibility of violence was sufficient, "though likely barely so," to justify the restriction.

More generally, the court said "limited, narrowly tailored specific exceptions or restrictions for particular cases" may be consistent with the Second Amendment. Ashcroft's memo likewise emphasized that "the existence of this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse."

Ashcroft's definition of "reasonable restrictions" seems pretty broad. "The Department can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws," he wrote.

Among other things, this means Ashcroft considers the federal ban on "assault weapons," which targets guns based on their scary looks, a reasonable restriction. Presumably, an equally arbitrary federal ban on "Saturday night specials" (inexpensive handguns) also would meet his standard.

Evidently, the Brady Law, which requires Americans to get clearance from the police before exercising their constitutional rights, is a reasonable restriction. Perhaps federal licensing and registration would pass muster too.

I once asked Ira Glasser, then the ACLU's executive director, why his organization did not seem interested in defending the Second Amendment. He surprised me by saying that he believed the amendment applied to individuals.

But Glasser quickly added that the right to keep and bear arms did not rule out all forms of gun control. In fact, he was hard pressed to say what kind of gun control it did rule out.

I should have realized then what is clear now: Bringing the Second Amendment back from legal oblivion is only the beginning of the debate.

c Copyright 2002 by Creators Syndicate Inc.

Jacob Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, write or call the editorial page editor.

http://reason.com/sullum/051702.shtml


"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

Josey1

Ashcroft and NRA Provide Second Amendment Gun Defense for Accused American Taliban Terrorist John Walker Lindh
Washington, DC-One week after the Ashcroft Justice Department formally adopted the National Rifle Association (NRA) view that the Second Amendment guarantees a broad individual right to keep and bear arms, the defense team for accused American Taliban terrorist John Walker Lindh has used the government's arguments made to the U.S. Supreme Court to urge dismissal of the gun charge filed against him.

The Justice Department position, announced last week in briefs filed with the U.S. Supreme Court, is contrary to both Supreme Court precedent and long-standing and consistent bipartisan Justice Department policy that the Second Amendment protects a militia-based-not an expansive individual-right to bear arms.

VPC Litigation Director and Legislative Counsel Mathew Nosanchuk states, "We warned of this inevitable result and it has not taken long for our fears to come true. The Ashcroft Justice Department has betrayed its law enforcement responsibilities by strengthening the legal position of those charged with committing serious crimes. These are the real-life consequences of a cynical, politically motivated action. Now defendants charged with a gun crime will argue the NRA-endorsed, Ashcroft- implemented, American Taliban defense. The tough-on-crime rhetoric of President Bush, Attorney General Ashcroft, and the NRA means little now that they have given accused gun criminals a new Justice Department-endorsed defense."

The Violence Policy Center warned of the clear threat to public health and safety posed by the Justice Department shift in a May 2 letter sent to Solicitor General Ted Olson by former Deputy Solicitor General Andrew Frey on behalf of the VPC before the briefs were filed. The letter stated: "Prosecuting gun crimes would also be made more difficult in the wake of a policy change by the government....A person accused of violating one or more of these statutes will have the opportunity to make the argument that he was merely exercising his Second Amendment right at the time of his arrest, and that any statute purporting to impose criminal penalties for that conduct is unconstitutional....The ability of the United States to perform its task of defending the laws enacted by the Congress will be needlessly, and perhaps seriously, compromised by a filing of the sort we here urge you to avoid."

http://www.vpc.org/press/0205lindh.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

Josey1

Lock-and-Load Ashcroft

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By Mary McGrory
Sunday, May 19, 2002; Page B07


Various people have various ideas about what the country needs most. Seniors think it's prescription drug benefits; the young are for more liberal college loans. But our attorney general, John Ashcroft, has the most novel: He thinks what this country needs is more guns. Already there are 200 million guns in circulation within our borders. Does this number help to explain why we have between 20,000 and 30,000 gun deaths a year?

Ashcroft does not connect the dots, as we say all the time now. Ashcroft is passionate about guns, and although he promised the Senate Judiciary Committee at his confirmation hearings that he would set aside his personal feelings, his passion has become a policy. The attorney general thinks that any American who wants a gun should have one. He's gone to the Second Amendment of the Constitution for ammunition.

While 60 years of court opinion have held that the Founders intended to extend a collective privilege for militias -- after all, they were doing their drafting while the redcoats were still coming in memory -- Ashcroft told the National Rifle Association in a letter of a year ago: "Let me state unequivocally my view that the text and original intention of the Second Amendment clearly protects the right of individuals to keep and bear arms."

It is somewhat embarrassing that the chief law enforcement officer of our country is a gun nut, but it is more than that. Dennis Henigan of the Brady Center to Prevent Violence warns that felons arrested for gun possession will claim the alibi Ashcroft has provided them: the right to keep and bear arms.

Lawyers for John Walker Lindh have asked that gun-bearing charges against their pro-Taliban client be dropped under Ashcroft's second thoughts about the Second Amendment. Ashcroft's intervention in the Lindh case illustrates how he sees his role. He feels he was chosen to be a temporary Grand Inquisitor sniffing out heresy -- which to him means any resistance to Baptist fundamental doctrine -- in all corners of the country.

Lindh, the Marin County youth who obsessed about Islam, brought all the attorney general's aggressions into full play. With reckless disregard for the inappropriateness of attempting to influence a trial outcome, he declared he was still hoping for the death penalty, another of his enthusiasms.

Gun control, once considered a winner by Democrats, has fallen on hard times. Sen. Zell Miller (D-Ga.) recently made a much-remarked speech to the NRA in which he declared that Democrats had lost in Arkansas, Tennessee and West Virginia on guns -- and would again. In support of universal armament, he quoted John F. Kennedy -- who was talking about war -- the most conspicuous victim of gun violence in our generation.

Gun control has always been a hard sell on Capitol Hill. Even at the height of the agony and shame over Columbine, Vice President Al Gore had to break a tie over gun-show checks. A new gun-show bill from Joe Lieberman and John McCain is coming up.

A new group called Americans for Gun Safety (AGS), funded by billionaire Andrew McKelvey and headed by John Cowan, formerly of HUD, is vigorously backing the check. Cowan says his group's premise is that there is nothing to be done about the 200 million guns already here and that Democrats should learn to love gun-owners -- who have been brainwashed by the NRA to think a handgun ban would mean the confiscation of their hunting rifles. No one seems able to convince them that even the mouthiest Massachusetts liberal has no designs on long guns. AGS says it's a battle that can't be won.

Leadership on guns may be passing from Democrats to doctors. Nine thousand U.S. medics have formed a coalition to fight guns as a health hazard. Their leader, Dr. Jeremiah Barondess of New York, was shown on "Sixty Minutes" asking patients about guns in their homes. A counter-group of 900 physicians rages that the questions are intrusive and based on a political agenda unbecoming a doctor.

Ashcroft's attempt to take the Second Amendment to the Supreme Court may not come about before the election in November. But his full-throated support for a gun for everyone could be an issue in the campaign, aggravating the kind of gun- shyness exhibited by Tom Strickland, a Democratic Senate candidate in Colorado, who, after Columbine, made fiery statements about guns but this year is saying, "We don't need any more gun control."

Sen. Richard Durbin of Illinois, a gun-control stalwart who retains his convictions, says of the Ashcroft initiative: "I don't think it will make the country safer."

A line from Army Lt. Col. Patrick L. Fetterman comes to mind. He's trying to root out rocket-launching terrorists from the mountains in Afghanistan, and he complained to The Post's Peter Baker that "Everybody in this [expletive] country has a weapon." That may be true of us soon.


c 2002 The Washington COMPost Company

http://www.washingtonpost.com/wp-dyn/articles/A35975-2002May17.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