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Changing the 2nd Amendment
Josey1
Member Posts: 9,598 ✭✭
Changing the 2nd Amendment
Thursday, May 9, 2002
SEATTLE POST-INTELLIGENCER EDITORIAL BOARD
It is disturbing, though not surprising, that the federal government has decided after numerous decades of settled thinking on the Second Amendment to reinterpret its position.
The marked shift, formalized in a pair of footnotes to legal briefs submitted Monday to the U.S. Supreme Court, occurs because of the deeply held beliefs of the man who is now leading the Justice Department, Attorney General John Ashcroft.
Last summer, in a letter to the National Rifle Association, Ashcroft foreshadowed the change in official thinking. "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms," he wrote.
The department's departure is profound from philosophical and practical standpoints.
Until now, through Republican and Democratic administrations alike, the Justice Department has been in virtual lockstep with the high court's position on the Second Amendment, as last stated in the 1939 decision, United States v. Miller. In that case the court said the amendment protects only those gun ownership rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia."
While legal scholarship on the exceedingly volatile amendment has seesawed between the two disparate views, the courts have been generally unified in their thinking -- adhering to the Miller decision in more than 100 federal and state appellate cases -- until last fall.
Then, in the prosecution of a Texan for violating a 1994 federal gun law, the U.S. 5th Circuit Court of Appeals departed from precedent to maintain that the amendment protects the individual right to bear arms. It did say those rights could be subject to "limited, narrowly tailored specific exceptions."
It should be noted that the department, while announcing its change of heart on the basic thrust of the amendment, does not disagree that gun ownership can be curtailed to some extent. And the department would prefer that the high court not involve itself in the Texas case or its companion on appeal, the case of a man convicted of owning two machine guns in violation of the ban against them.
We disagree. Though couched in a footnote, the pointed challenge to decades of unified thinking by the judiciary -- the perspective that ultimately counts -- has been made.
The time is ripe, as is said in legal parlance, for the high court to weigh in again on the Second Amendment and, it can be hoped, reaffirm the position that the Constitution guarantees only a collective right to guns through state and federal militias, not an individual's absolute right. Otherwise, the door will open wide to weakening the responsible gun laws that protect us all. http://seattlepi.nwsource.com/opinion/69642_guned.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
Thursday, May 9, 2002
SEATTLE POST-INTELLIGENCER EDITORIAL BOARD
It is disturbing, though not surprising, that the federal government has decided after numerous decades of settled thinking on the Second Amendment to reinterpret its position.
The marked shift, formalized in a pair of footnotes to legal briefs submitted Monday to the U.S. Supreme Court, occurs because of the deeply held beliefs of the man who is now leading the Justice Department, Attorney General John Ashcroft.
Last summer, in a letter to the National Rifle Association, Ashcroft foreshadowed the change in official thinking. "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms," he wrote.
The department's departure is profound from philosophical and practical standpoints.
Until now, through Republican and Democratic administrations alike, the Justice Department has been in virtual lockstep with the high court's position on the Second Amendment, as last stated in the 1939 decision, United States v. Miller. In that case the court said the amendment protects only those gun ownership rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia."
While legal scholarship on the exceedingly volatile amendment has seesawed between the two disparate views, the courts have been generally unified in their thinking -- adhering to the Miller decision in more than 100 federal and state appellate cases -- until last fall.
Then, in the prosecution of a Texan for violating a 1994 federal gun law, the U.S. 5th Circuit Court of Appeals departed from precedent to maintain that the amendment protects the individual right to bear arms. It did say those rights could be subject to "limited, narrowly tailored specific exceptions."
It should be noted that the department, while announcing its change of heart on the basic thrust of the amendment, does not disagree that gun ownership can be curtailed to some extent. And the department would prefer that the high court not involve itself in the Texas case or its companion on appeal, the case of a man convicted of owning two machine guns in violation of the ban against them.
We disagree. Though couched in a footnote, the pointed challenge to decades of unified thinking by the judiciary -- the perspective that ultimately counts -- has been made.
The time is ripe, as is said in legal parlance, for the high court to weigh in again on the Second Amendment and, it can be hoped, reaffirm the position that the Constitution guarantees only a collective right to guns through state and federal militias, not an individual's absolute right. Otherwise, the door will open wide to weakening the responsible gun laws that protect us all. http://seattlepi.nwsource.com/opinion/69642_guned.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