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2nd amendment news 5/22
Josey1
Member Posts: 9,598 ✭✭
Debating the Second Amendment Point
The Constitution protects each American's right to own a firearm
By Stephen P. Halbrook
Halbrook an attorney in Fairfax Va. is author of "That Every Man Be Armed" and other books on the Second Amendment. See www.stephenhalbrook.com.
May 19, 2002
The Constitution protects each American's right to own a firearm Pending before the U.S. Supreme Court is United States vs. Emerson, a case which involves the right to keep and bear arms guaranteed by the Second Amendment to the Constitution. Attorney General John Ashcroft believes that this is a fundamental right of law-abiding citizens, but argues that the federal law at issue in the case is valid. The law prohibits firearm possession by a person against whom an order has been entered restraining the person from domestic violence. Ashcroft's pro-Second Amendment views have provoked a firestorm among gun prohibitionists.
When she was attorney general, Janet Reno never said anything good about that part of the Bill of Rights known as the Second Amendment. She was the chief prosecutor for Clinton's gun control measures, and the only arms bearing she took "full responsibility for" was by submachine-gun toting federal agents at Waco and in Miami's Little Havana.
When Dr. Timothy Emerson argued that the federal ban on possession of a firearm by the subject of a domestic restraining order violated the Second Amendment, the prosecuting U.S. attorney in Lubbock, Texas, echoed Reno's line that the people have no right to keep and bear arms.
But U.S. District Judge Sam Cummings had read up on his constitutional history, and threw out the prosecution. His 1999 decision, considered by some the most thoroughly researched judicial opinion ever published on the Second Amendment, held that the gun ban was an infringement on the right to keep arms, and that the restraining order in that case was just a boilerplate form issued in every Texas divorce case. He quoted the Founding Fathers and the latest scholarship to show that the Second Amendment protects an individual's right to have a firearm.
The Second 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." To the framers, it was simple enough: Recognition of the right of all law-abiding persons to have firearms would promote a militia, which is superior to a standing army for protection of liberty. Promotion of the militia was a serious federal purpose, but the right was not limited to militia use.
By the 1960s, the Second Amendment had become politically incorrect, and some judges and prosecutors concocted the theory that "the right of the people" to have arms really means "the power of the state" to have a militia. If the amendment protects only the collective and gun owners have no rights, then all gun control laws are constitutional.
But that mentality is hardly universal. In September 1998, then-Sen. John Ashcroft, chairman of the subcommittee on the constitution, held hearings on the Second Amendment. He quoted James Madison as praising "the advantage of being armed, which the Americans possess over the people of almost every other nation." Democrat Russ Feingold declared, "I agree with every single word Sen. Ashcroft said about the amendment." That view would be buttressed the following year with the decision by Judge Cummings.
The appeal of that decision was heard at the U.S. Court of Appeals for the Fifth Circuit in New Orleans. A Justice Department lawyer told the three-judge panel that a government ban on all civilian gun possession would not violate the Second Amendment. That comment was widely published, prompting an uproar in the gun-owning community.
When one citizen asked whether they really meant it, then-Solicitor General Seth Waxman wrote a detailed letter explaining that, yes, there is no Santa Claus, and the Second Amendment is kaput. The letter was dated August 2000, when the Gore-Bush race was in full swing. The National Rifle Association posted blowups of the letter on billboards, and it is now history how key hunting states swung the election for Bush.
Sticking to his guns
Ashcroft survived the bashing at his conformation hearing and became attorney general despite the fears of many that he would be a staunch defender of the Second Amendment. Their nightmare came true in May 2001 when Jim Baker, political chief of the National Rifle Association (NRA), read a letter from Ashcroft to the group's annual convention. It pledged: "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."
Ashcroft quoted Jefferson's proposal for Virginia that "no free man shall ever be debarred the use of arms," and George Mason's protest of a Constitution with no bill of rights, including his remark that "to disarm the people is the best and most effectual way to enslave them."
But Congress could restrict firearms "for compelling state interests," such as disarming felons. Ashcroft recalled Samuel Adams' admonition in 1788 that the Constitution should "never (be) construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
The gun prohibitionist lobby went ballistic. The Violence Policy Center ignored the above words and charged that, under Ashcroft's views, violent felons would assert their Second Amendment rights. Actually, the Violence Policy Center couldn't care less what felons assert - it found intolerable the concession that peaceable citizens could keep their own arms. VPC litigation director Mathew Nosanchuk, Reno's former top firearms counsel, wrote a blistering attack unmasking Ashcroft's heresy.
9/11 changed things
Then came Sept. 11. The heroic resistance of the passengers on United Airlines Flight 93 against the hijackers seemed to consign the doctrine of nonresistance (typical of anti-gun pacifists) to the dustbin of history.
The U.S. Court of Appeals in the Emerson case was not cowed. Its opinion, issued in October, held: "The Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons regardless of whether the particular individual is then actually a member of a militia."
Published as U.S. vs. Emerson, the 70-page opinion leaves other appellate court decisions in the dust. Filled with a sophisticated textual analysis and extensive quotes from the Founding Fathers, the opinion demolishes the "collective rights" decisions of several other courts, which typically rely on a paragraph or two of assertion. The court held that the law at issue barely passed muster under the Second Amendment, in that domestic restraining orders in Texas are required to be backed by judicial fact-finding.
Emerson's attorneys filed a petition for review in the Supreme Court. Would the Ashcroft Justice Department respond with the typical Clinton-era refrain, or would it honestly concede that "the right of the people" is for real? A bitter internal fight broke out in the Justice Department between Ashcroft loyalists and career bureaucrats.
The contents of briefs for the United States in the drafting stage are not normally available for eavesdropping by interest groups. However, a draft of the U.S. brief in the Emerson case may have been leaked to the Violence Policy Center. Forewarned that the brief would endorse Emerson's individual rights-interpretation of the Second Amendment, VPC sent a missive signed by Andrew Frey, ex-deputy solicitor general, to Solicitor General Ted Olson, lecturing Olson on why the brief must not commit this "politically motivated" apostasy.
The department, Frey insisted, must never relax its iron denial of any Second Amendment right. It had argued in a 1939 brief that the amendment's right extended only to "the people collectively" as a militia. However, the Supreme Court's decision, United States vs. Miller (1939), was silent on that argument, holding instead that the Second Amendment protects a firearm if it "is any part of the ordinary military equipment, or that its use could contribute to the common defense." The court never suggested that the possessor had to be in the militia. Miller has been widely miscited as supportive of the collective rights theory, but it contains no such language.
Legislative justification
Frey argued that the Justice Department's briefs represent "the position of the United States," but a more reliable statement of that position has been expressed in acts of Congress. Just two years after the brief in Miller was filed, the Property Requisition Act of 1941 prohibited any construction of the law that would "impair or infringe in any manner the right of any individual to keep and bear arms." Congress passed that law and President Franklin D. Roosebely signed it.
Similarly, in the Firearms Owners' Protection Act of 1986, Congress recognized "the rights of citizens to keep and bear arms under the Second Amendment to the United States Constitution."
As the coup de grace, Frey appealed to the Machiavellian impulse: The Second Amendment's validity must not be admitted because it would make it harder to win cases. The same could be said about any constitutional right.
On May 6, the VPC's Nightmare on Elm Street came true with the filing of the U.S. brief in Emerson. It states that the Second Amendment "broadly protects the rights of individuals, including persons who are not members of any militia to possess and bear their own firearms," excluding "possession by unfit persons" and firearm types "particularly suited to criminal misuse." Although the latter is fuzzy, the brief makes clear that handguns, rifles and shotguns are protected.
Attached to the brief was a November 2001 memo from Ashcroft to all U.S. attorneys with the words: "The department has a solemn obligation both to enforce federal law and to respect the constitutional rights guaranteed to Americans."
It's his respect for the Constitution that drives Ashcroft's critics bananas, and it's that same respect that gives assurance that the office of attorney general is held by a man of integrity.
http://www.signonsandiego.com/news/uniontrib/sun/opinion/news_mz1ed19point.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 Constitution protects each American's right to own a firearm
By Stephen P. Halbrook
Halbrook an attorney in Fairfax Va. is author of "That Every Man Be Armed" and other books on the Second Amendment. See www.stephenhalbrook.com.
May 19, 2002
The Constitution protects each American's right to own a firearm Pending before the U.S. Supreme Court is United States vs. Emerson, a case which involves the right to keep and bear arms guaranteed by the Second Amendment to the Constitution. Attorney General John Ashcroft believes that this is a fundamental right of law-abiding citizens, but argues that the federal law at issue in the case is valid. The law prohibits firearm possession by a person against whom an order has been entered restraining the person from domestic violence. Ashcroft's pro-Second Amendment views have provoked a firestorm among gun prohibitionists.
When she was attorney general, Janet Reno never said anything good about that part of the Bill of Rights known as the Second Amendment. She was the chief prosecutor for Clinton's gun control measures, and the only arms bearing she took "full responsibility for" was by submachine-gun toting federal agents at Waco and in Miami's Little Havana.
When Dr. Timothy Emerson argued that the federal ban on possession of a firearm by the subject of a domestic restraining order violated the Second Amendment, the prosecuting U.S. attorney in Lubbock, Texas, echoed Reno's line that the people have no right to keep and bear arms.
But U.S. District Judge Sam Cummings had read up on his constitutional history, and threw out the prosecution. His 1999 decision, considered by some the most thoroughly researched judicial opinion ever published on the Second Amendment, held that the gun ban was an infringement on the right to keep arms, and that the restraining order in that case was just a boilerplate form issued in every Texas divorce case. He quoted the Founding Fathers and the latest scholarship to show that the Second Amendment protects an individual's right to have a firearm.
The Second 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." To the framers, it was simple enough: Recognition of the right of all law-abiding persons to have firearms would promote a militia, which is superior to a standing army for protection of liberty. Promotion of the militia was a serious federal purpose, but the right was not limited to militia use.
By the 1960s, the Second Amendment had become politically incorrect, and some judges and prosecutors concocted the theory that "the right of the people" to have arms really means "the power of the state" to have a militia. If the amendment protects only the collective and gun owners have no rights, then all gun control laws are constitutional.
But that mentality is hardly universal. In September 1998, then-Sen. John Ashcroft, chairman of the subcommittee on the constitution, held hearings on the Second Amendment. He quoted James Madison as praising "the advantage of being armed, which the Americans possess over the people of almost every other nation." Democrat Russ Feingold declared, "I agree with every single word Sen. Ashcroft said about the amendment." That view would be buttressed the following year with the decision by Judge Cummings.
The appeal of that decision was heard at the U.S. Court of Appeals for the Fifth Circuit in New Orleans. A Justice Department lawyer told the three-judge panel that a government ban on all civilian gun possession would not violate the Second Amendment. That comment was widely published, prompting an uproar in the gun-owning community.
When one citizen asked whether they really meant it, then-Solicitor General Seth Waxman wrote a detailed letter explaining that, yes, there is no Santa Claus, and the Second Amendment is kaput. The letter was dated August 2000, when the Gore-Bush race was in full swing. The National Rifle Association posted blowups of the letter on billboards, and it is now history how key hunting states swung the election for Bush.
Sticking to his guns
Ashcroft survived the bashing at his conformation hearing and became attorney general despite the fears of many that he would be a staunch defender of the Second Amendment. Their nightmare came true in May 2001 when Jim Baker, political chief of the National Rifle Association (NRA), read a letter from Ashcroft to the group's annual convention. It pledged: "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."
Ashcroft quoted Jefferson's proposal for Virginia that "no free man shall ever be debarred the use of arms," and George Mason's protest of a Constitution with no bill of rights, including his remark that "to disarm the people is the best and most effectual way to enslave them."
But Congress could restrict firearms "for compelling state interests," such as disarming felons. Ashcroft recalled Samuel Adams' admonition in 1788 that the Constitution should "never (be) construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
The gun prohibitionist lobby went ballistic. The Violence Policy Center ignored the above words and charged that, under Ashcroft's views, violent felons would assert their Second Amendment rights. Actually, the Violence Policy Center couldn't care less what felons assert - it found intolerable the concession that peaceable citizens could keep their own arms. VPC litigation director Mathew Nosanchuk, Reno's former top firearms counsel, wrote a blistering attack unmasking Ashcroft's heresy.
9/11 changed things
Then came Sept. 11. The heroic resistance of the passengers on United Airlines Flight 93 against the hijackers seemed to consign the doctrine of nonresistance (typical of anti-gun pacifists) to the dustbin of history.
The U.S. Court of Appeals in the Emerson case was not cowed. Its opinion, issued in October, held: "The Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons regardless of whether the particular individual is then actually a member of a militia."
Published as U.S. vs. Emerson, the 70-page opinion leaves other appellate court decisions in the dust. Filled with a sophisticated textual analysis and extensive quotes from the Founding Fathers, the opinion demolishes the "collective rights" decisions of several other courts, which typically rely on a paragraph or two of assertion. The court held that the law at issue barely passed muster under the Second Amendment, in that domestic restraining orders in Texas are required to be backed by judicial fact-finding.
Emerson's attorneys filed a petition for review in the Supreme Court. Would the Ashcroft Justice Department respond with the typical Clinton-era refrain, or would it honestly concede that "the right of the people" is for real? A bitter internal fight broke out in the Justice Department between Ashcroft loyalists and career bureaucrats.
The contents of briefs for the United States in the drafting stage are not normally available for eavesdropping by interest groups. However, a draft of the U.S. brief in the Emerson case may have been leaked to the Violence Policy Center. Forewarned that the brief would endorse Emerson's individual rights-interpretation of the Second Amendment, VPC sent a missive signed by Andrew Frey, ex-deputy solicitor general, to Solicitor General Ted Olson, lecturing Olson on why the brief must not commit this "politically motivated" apostasy.
The department, Frey insisted, must never relax its iron denial of any Second Amendment right. It had argued in a 1939 brief that the amendment's right extended only to "the people collectively" as a militia. However, the Supreme Court's decision, United States vs. Miller (1939), was silent on that argument, holding instead that the Second Amendment protects a firearm if it "is any part of the ordinary military equipment, or that its use could contribute to the common defense." The court never suggested that the possessor had to be in the militia. Miller has been widely miscited as supportive of the collective rights theory, but it contains no such language.
Legislative justification
Frey argued that the Justice Department's briefs represent "the position of the United States," but a more reliable statement of that position has been expressed in acts of Congress. Just two years after the brief in Miller was filed, the Property Requisition Act of 1941 prohibited any construction of the law that would "impair or infringe in any manner the right of any individual to keep and bear arms." Congress passed that law and President Franklin D. Roosebely signed it.
Similarly, in the Firearms Owners' Protection Act of 1986, Congress recognized "the rights of citizens to keep and bear arms under the Second Amendment to the United States Constitution."
As the coup de grace, Frey appealed to the Machiavellian impulse: The Second Amendment's validity must not be admitted because it would make it harder to win cases. The same could be said about any constitutional right.
On May 6, the VPC's Nightmare on Elm Street came true with the filing of the U.S. brief in Emerson. It states that the Second Amendment "broadly protects the rights of individuals, including persons who are not members of any militia to possess and bear their own firearms," excluding "possession by unfit persons" and firearm types "particularly suited to criminal misuse." Although the latter is fuzzy, the brief makes clear that handguns, rifles and shotguns are protected.
Attached to the brief was a November 2001 memo from Ashcroft to all U.S. attorneys with the words: "The department has a solemn obligation both to enforce federal law and to respect the constitutional rights guaranteed to Americans."
It's his respect for the Constitution that drives Ashcroft's critics bananas, and it's that same respect that gives assurance that the office of attorney general is held by a man of integrity.
http://www.signonsandiego.com/news/uniontrib/sun/opinion/news_mz1ed19point.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
Savannah Morning News
THE RECENT decision by the Bush administration to change longstanding government policy regarding the Second Amendment right to bear arms is neither the extreme shift from left field as characterized by critics, nor the silver bullet to end gun control efforts as hoped by some proponents.
The Justice Department recently filed a brief with the Supreme Court that reversed the government's decades-long view that the right to own guns is a collective right given to state militias. The Bush administration argues that the Constitution's Second Amendment applies to individuals.
Opponents went apoplectic, as if Attorney General John Ashcroft had taken his pencil eraser to the Constitution itself and scribbled in his own language.
Typical was the reaction of Michael Barnes, president of the Brady Center to Prevent Gun Violence: "The worst fears about Attorney General Ashcroft have come true: His extreme ideology on guns has now become government policy."
Extreme? The idea of an individual, not collective, right to firearms can be traced back at least to the 18th century. In 1765, England's Sir William Blackstone, a major influence on America's Founding Fathers, described the British right to bear arms as one of "the rights of the subject," i.e., the individual. The British law was the basis for the Constitution's Second Amendment.
There is no disputing that the Constitution's First and Fourth Amendments, which like the Second refer to "the right of the people," secure individual, not collective, rights to speech, religion, property, etc. Yet, critics would have us believe that when it came to firearms, the framers assigned a completely different meaning to the same phrase in the same document.
Not only does that defy logic, it ignores the numerous statements and writings by the framers, before during and after the drafting of the Constitution, supporting the individual's right to bear arms.
Even such liberal legal scholars as Harvard University's Lawrence Tribe have acknowledged that the Second Amendment assures Americans the right to "possess and use firearms in defense of themselves and their homes" and that "the federal government may not disarm individual citizens without some unusually strong justification."
Indeed, that was the common interpretation of the Second Amendment throughout the 19th and early 20th centuries. It was only in the 1930s that the idea began to shift from an individual to a collective right.
Critics of the Bush administration policy change point to the 1939 case of United States vs. Miller, in which the Supreme Court ruled the Second Amendment protects only those arms that have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." That, they say, affirms that the Second Amendment is a collective right applicable only to government-sponsored military units.
However, the court did not explicitly reject the individual-right view or affirm the collective right. In fact, its definition of a "militia" didn't change much from the one offered by the Militia Act of 1792: any able-bodied man, "bearing arms supplied by themselves."
The high court has been silent on the Second since, but the notion of a collective right has been reinforced by lower court rulings over the last 30 years -- until recently.
In the 1999 case Emerson vs. United States, the U.S. 5th Circuit Court of Appeals in New Orleans rejected the government's understanding of the 1939 Miller case and ruled that the Constitution does indeed guarantee an individual right to own a firearm.
It is important to note, however, that the court did not strike down the challenged federal law that prohibited gun ownership by persons under restraining orders. In fact, the court ruled that the Second Amendment isn't absolute, and that it is subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable."
And it is equally important to note that the Bush administration, while arguing for the individual right to bear arms, also supports the federal firearm restriction that Emerson seeks to repeal.
Clearly, the Second Amendment does not, and should not, secure a citizen's right to own rocket launchers or howitzers. There should be "limited, narrowly tailored" restrictions on gun ownership -- for instance, those that promote safe use and which prevent criminals from possessing firearms.
But then, the First Amendment right to free speech is not absolute, either -- you can't yell "fire" in a crowded theater.
The Bush administration's support of an individual right to bear arms, then, need not be hysterically viewed as a setback to legitimate, "limited" gun control. It threatens only those who would twist the framers' intent so as to ban private gun ownership altogether. Theirs is the extreme, radical interpretation of the Second Amendment. http://www.savannahnow.com/stories/052102/OPEDopedsecondamend.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