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EDITORIAL: Bush on guns
Josey1
Member Posts: 9,598 ✭✭
EDITORIAL: Bush on guns
"I think they're really terribly reactionary when it comes to these questions of gun control, the environment, federal regulation." So spake history professor Robert Dallek of Boston University when notified that the Bush administration officially endorsed the notion that the Second Amendment protects an individual's right to keep and bear arms.
Anti-gun activists are apoplectic, claiming that the Bush administration has merely kowtowed to right-wing extremists. But it's the gun-controllers who are outside the mainstream, culturally and intellectually ... because among constitutional scholars, a consensus is growing on the right and the left which supports the view that the Second Amendment was designed to restrict the government rather than individuals.
Liberal scholars, including law professor Lawrence Tribe and journalist Nat Hentoff, agree that any honest interpretation of the Second Amendment must conclude that individuals have the right to own firearms.
Eugene Volokh, a law professor at UCLA, says the concept that the Second Amendment empowers government to restrict firearms ownership was invented from whole cloth by 20th century gun-controllers. It's completely inconsistent with the view of the founders, who believed an armed citizenry serves as a check on government tyranny.
The Bush administration's conclusion should be no mystery: The nine other amendments comprising the Bill of Rights place limits on the government's ability to infringe on the rights of individuals. Why should the Second Amendment stand alone?
http://www.lvrj.com/lvrj_home/2002/May-13-Mon-2002/opinion/18715343.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
"I think they're really terribly reactionary when it comes to these questions of gun control, the environment, federal regulation." So spake history professor Robert Dallek of Boston University when notified that the Bush administration officially endorsed the notion that the Second Amendment protects an individual's right to keep and bear arms.
Anti-gun activists are apoplectic, claiming that the Bush administration has merely kowtowed to right-wing extremists. But it's the gun-controllers who are outside the mainstream, culturally and intellectually ... because among constitutional scholars, a consensus is growing on the right and the left which supports the view that the Second Amendment was designed to restrict the government rather than individuals.
Liberal scholars, including law professor Lawrence Tribe and journalist Nat Hentoff, agree that any honest interpretation of the Second Amendment must conclude that individuals have the right to own firearms.
Eugene Volokh, a law professor at UCLA, says the concept that the Second Amendment empowers government to restrict firearms ownership was invented from whole cloth by 20th century gun-controllers. It's completely inconsistent with the view of the founders, who believed an armed citizenry serves as a check on government tyranny.
The Bush administration's conclusion should be no mystery: The nine other amendments comprising the Bill of Rights place limits on the government's ability to infringe on the rights of individuals. Why should the Second Amendment stand alone?
http://www.lvrj.com/lvrj_home/2002/May-13-Mon-2002/opinion/18715343.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
Is the Glass Half Empty or Half Full?
The word roared through the Second-Amendment community earlier this week: Solicitor General Theodore Olson had written, in a brief to the Supreme Court, "The current position of the United Sates ... is that the Second Amendment more broadly protects the rights of individuals ... to possess and bear their own firearms."
It was the third time a prominent Bush administration member had taken a similar position. Attorney General John Ashcroft stated the same viewpoint in a letter to the NRA last year. Then in November Ashcroft wrote to federal prosecutors applauding a pro-gun decision in Emerson v. United States.
We, too, would like to cheer this development. And we will. Tentatively.
But above all, this alert is to urge all Second-Amendment advocates to (as Ronald Reagan said) "trust, but verify."
FIRST, THE GOOD NEWS
Without question, Bush adminstration officials have expressed better intentions toward gun owners than any administration from Richard Nixon onward. After the aggressive rights thievery of Bill and Hillary Clinton, the new policy statement is truly a relief.
The fact that this individual-rights position was stated in a brief to the Supreme Court is significant -- far more so than a statement made to a private organization, because of its potential impact on the court's decision and future government policy.
It's crucial to understand that Olson's statement is in no sense the law of the land. But to the degree that it influences court decisions or the decision of prosecutors to bring (or drop) cases, it could eventually be a godsend to peaceable people who run afoul of paperwork violations or face unjust charges for violating federal or state firearms laws. Precedent is a powerful force in U.S. law, and this policy could eventually result in defense attorneys having new tools to defend their clients -- and defend the Second Amendment.
In the most optimistic case, the change of policy could even be the first domino in the toppling of anti-gun laws. As Eric Lichtblau observed in the L.A. Times
"Current state and federal laws subjecting law-abiding citizens to background checks, regulating concealed weapons and banning the purchase of certain guns, such as assault rifles, could all be vulnerable ..." (http://latimes.com/news/nationworld/nation/la-050802guns.story)
Attorney Richard W. Stevens, editor of JPFO's own Bill of Rights Sentinel and co-author of Death by "Gun Control", takes the optimistic position: "I say, hooray for the Justice Department and Ashcroft for moving in our direction, as Ashcroft promised. This position change can potentially affect court decisions nationwide." To those who say the administration hasn't done enough, Stevens adds, "If you don't cheer their moving in the right direction, then what will encourage them to keep moving our way? We criticize them for doing wrong, we praise them for doing right ...and use it to our advantage ... even if their 'right' isn't perfect."
BUT DON'T FORGET TO READ THE FINE PRINT
Unfortunately, the Bush administration's "right" is far from perfect.
Having declared the individual rights position, Olson went on to note in his brief that the right is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession ot types of firearms that are particularly suited to crime."
This portion of the statement (consistent with Ashcroft's earlier caveats), suggests that the Justice Department will do nothing to challenge obnoxious background checks, waiting periods, magazine bans, concealed carry restrictions, registration or licensing laws, or restrictions on types of firearms owned.
"Reasonable" restrictions is language straight out of the gun- banners' PR handbook. Is there any restriction that a hoplophobe wouldn't find "reasonable"?
And who is "unfit" to possess a firearm? If this means only violent felons or the violently mentally ill, fine. But if it continues to mean that people with unpaid parking tickets or thirty-year-old misdemeanors are barred from purchasing or owning firearms, then peaceable people are still being denied their rights.
And which weapons are "particularly suited to crime"? A brick, a hammer, a screwdriver, or a rock can, in criminal hands, be "particularly suited to crime." According to the campaigns of various victim disarmers -- campaigns that have too often resulted in the passage of laws -- all of the following have been accused of being "particularly suited to crime":
Inexpensive handguns ("Saturday-night specials" -- a racist term)
Expensive handguns with high-capacity magazines
Semi-automatic rifles
Short-barrelled shotguns
Machine guns
Long-range scoped "sniper rifles" (otherwise known as your deer-hunting gun)
In short, there is no type of firearm that can't be regulated or banned by the government under the Olson standard.
Mssrs. Olson and Ashcroft have uttered hopeful words. But their "fine print" means that total government regulation remains possible. Actions speak louder than words, and we don't see the administration withdrawing its support from any of the unconstitutional laws, regulations, or abusive regulatory agencies that have been imposed upon Americans in the last 70 years.
There is one other aspect to the cheers of the Second-Amendment community that disheartens us. As professional songwriter Dan Starr wrote in an e-mail to JPFO , "Isn't it amazing that we are cheering the decision by the government to respect exactly what they pledged to uphold when they took office?"
In fact, the Second Amendment community has been cheering the administration for doing far less than fulfill its pledge to uphold the Constitution. It has cheered "weasel words" not backed by any solid deeds.
After discussing the potential positive ramificaitions of the Bush policy, Richard Stevens concludes, "All of this takes a lot of time. Meanwhile, the DoJ's position shift gives us a powerful educational tool. We can say, 'Look, we have the two Emerson decisions and the U.S. Department of Justice saying that the Second Amendment protects an individual right. Sayonara, collective right theory -- enjoy eternity in the dust bin.'"
In other words, the new policy should not encourage us to relax, but to work even harder to explain and demand our rights -- to use the momentum created by this development to achieve much, much more than we have in the last painful decades.
Yes, we can cheer with relief that the people currently in the White House and the DoJ don't hate and demonize us as their predecessors did. But we must accept nothing less than the restoration of a true Bill of Rights culture in the United States -- beginning with an authentic respect, expressed in both words and actions, for the guardian amendment that protects the other nine.
So cheer -- and then roar for the return of real freedom.
http://www.jpfo.org/alert20020510.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
Attorney General John Ashcroft caused gun-control advocates and assorted liberals to go ballistic by his radical assertion that, yes, the Second Amendment does indeed guarantee individuals the right to keep and bear arms.
That's exactly what most law-abiding, gun-owning Americans have believed all along. Apparently it was news to nanny-state proponents and other pantywaists, even though the Second Amendment was ratified more than 200 years ago on Dec. 15, 1791.
From some of the reactions, you would have thought the sky was falling:
''So now . . . Ashcroft thinks he gets to rewrite the Constitution to reflect his personal opinions. His pronouncement . . . that the 2nd Amendment guarantees individuals the right to own guns, despite six decades of federal policy and U.S. Supreme Court decisions to the contrary, is another audacious move by a man who mistakenly thinks his job is to make, not enforce, the law,'' opined The Los Angeles Times.
''Ashcroft has compared the gun-ownership right with the First Amendment's protection of speech -- which can be limited only in a fashion narrowly tailored to accomplish compelling state interests. If that's the model, most federal gun laws would sooner or later fall,'' warned The Washington Post in an editorial on Friday.
More realistically, the National Rifle Association called Ashcroft's position a ''breath of fresh air'' to freedom-loving gun owners.
The amendment states: ``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.''
Does that mean citizens have a ''collective'' right to own guns only so states can have well-regulated militias; that citizens can possess guns only for the purpose of serving in militias? I don't know about you, but I've never known a member of the National Guard to take his or her M-16 to summer camp.
Or does it mean that a citizen's basic right to keep and bear arms -- a right Americans enjoyed before there was a Constitution or a Bill of Rights -- cannot be infringed upon because states may someday need to call them up for service in a militia?
Legal scholars remain divided.
Based on writings of the time, Ashcroft believes that the Second Amendment was understood to mean that individual citizens had a basic right to keep and bear arms. Individuals in the 18th Century needed guns to hunt and for their protection. Individuals today need them for their protection.
Ashcroft says that the last six decades of federal policy and court decisions on gun ownership have been too narrow. He also says that the Second Amendment protects the right of gun ownership beyond what is reasonably related to the preservation of the militia.
In a footnote filed with a legal brief to the Supreme Court, Ashcroft's position is explained as understanding 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 . . . restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are . . . suited to criminal misuse.''
Naturally, the gun-control bunch doesn't like Ashcroft's position. It's a step backward for them. The gun-control crowd is after eliminating individual ownership of guns, all guns -- that includes granddad's favorite shotgun that hasn't been fired in 50 years.
Most liberals prefer collective rights to individual rights. For them, it may be OK to own a gun if it's used only for militia purposes. But individual rights often appear too dangerous for the safety or best interests of the greater society.
Take a little breather. The sky is not falling. Count on the Justice Department to continue to enforce existing gun laws. Your next-door neighbor is not going to bring home a 155mm howitzer.
All Ashcroft has done is make individual Americans a little more free. It is a breath of fresh air. But, of course, the Supreme Court can always take another view.
Bill Coulter is an editorial-board member of The Houston Chronicle.
bill.coulter@chron.com http://www.miami.com/mld/miamiherald/news/opinion/3251246.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
Equal time:
Right to bear arms is secure
In 1803, Chief Justice John Marshall declared it the duty of the U.S. Supreme Court to interpret the Constitution. Almost 200 years later, we have an attorney general who wants to unilaterally reinterpret the Second Amendment, contrary to what the Supreme Court has decided.
For 60 years, attorneys general in both Republican and Democratic administrations have defended the 1939 U.S. v. Miller decision, in which the Supreme Court declared that the Second Amendment protects the right to own and bear firearms when there is "some reasonable relationship to the preservation of a well-regulated militia."
A year ago, Attorney General John Ashcroft wrote a letter to the National Rifle Association, on Justice Department letterhead, declaring that interpretation wrong. He said the Second Amendment gives individuals a constitutional right to own and use guns, with only narrow exceptions.
In a recent case upholding denial of gun ownership to a man under a restraining order in a domestic violence case, the 5th Circuit Court of Appeals wrote a bizarre opinion questioning the Supreme Court's long-standing interpretation of the Second Amendment. Ashcroft promptly took the lower court decision to heart, ordering all federal prosecutors to change the government's official position to state the right to bear arms applies to individuals without regard to militias.
Last week, U.S. Solicitor General Theodore Olson echoed Ashcroft's personal view in footnotes attached to two briefs to the U.S. Supreme Court on gun-related cases. The footnotes were gratuitous, since neither case involves the Second Amendment. In his letter to the NRA last year, Ashcroft demonstrated a dangerous reliance on ideology rather than fact, claiming that a majority of scholars have interpreted the early framers' discussions on the Second Amendment as intending to protect individual gun ownership.
The talk-show "scholars" who hold that view are actually the minority, because the historical record contradicts Ashcroft's position. It clearly shows that the anti-Federalists were concerned that without constitutional restraint, the federal government might eliminate state militias and replace them with a federal standing army.
Andrew Frey, who served as deputy U.S. solicitor general 1973-1986, points out that James Madison's first draft of the Second Amendment focused on state militia alone; there was no discussion during the final drafting about an individual's right to bear arms.
This is not the first time Ashcroft has tried to make his personal views the law of the land. Recently, he was soundly defeated in federal court when he challenged the state of Oregon's right-to-die measure. In this country, the U.S. Supreme Court, not a mere attorney general, still determines the law of the land.
http://www.accessatlanta.com/ajc/opinion/0502/13ashcroft.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
"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