Anti-Gun Groups Contest Individual Right to Own Firearms

CNSNEWS.com ^ | 6/18/02 | Jim Burns

[kattracks]

(CNSNews.com) - U.S. Attorney General John Ashcroft and the Bush administration have clearly stated their view that the Second Amendment guarantees an individual right to keep and bear arms, but that interpretation isn't stopping gun control groups from pushing for more restrictions on firearms.

Gun control advocates cling to a 1939 U.S. Supreme Court ruling, in which the justices said the Second Amendment protects only those gun rights that have "some reasonable relationship to the preservation...of a well-regulated militia."

Many believe the 1939 verdict in the U.S. v. Miller case reinforced the individual's right to keep and bear arms, but only those weapons commonly used in militias. The defendants in the Miller case had attempted to transport sawed-off shotguns from Oklahoma to Arkansas.

Others say neither the Miller ruling nor the Second Amendment guarantee any individual right to bear arms, despite the position recently staked out by Ashcroft and the administration.

"The Miller decision remains the law of the land and it continues to be followed in the lower courts," said Mathew Nosanchuk of the Violence Policy Center, a group that supports gun control.

"If the lower courts have been misreading Miller for 63 years as the NRA and pro-gun advocates believe, the Supreme Court has had ample opportunity to correct the error.

"Thankfully, the justices do not share Attorney General John Ashcroft's enthusiasm for
reinterpreting the Second Amendment," Nosanchuk added.

In a letter to the National Rifle Association last year, Ashcroft argued that the Second Amendment is indeed an individual right.

"While some have argued that the Second Amendment guarantees only a collective right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

Ashcroft's comments to the NRA were bolstered this spring by U.S. Solicitor General Ted Olson, who argues the government's side in cases before the U.S. Supreme Court.

In appellate court filings in two separate cases, Olsen wrote, "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 engage in active military service or training, to possess their own firearms.."

He added that firearms possession is "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."

The Supreme Court refused to review the two cases where Olsen weighed in. In both cases, individuals convicted of violated federal gun laws asked that their convictions be overturned.

One case, Emerson vs. the United States, involved a doctor who was charged with violating a federal law that makes it a crime for someone to own a gun while under a domestic-violence restraining order.

The other case was Haney vs. the United States, which involved a man convicted of owning two machine guns in violation of the federal law that bans machine gun ownership without appropriate licenses.

In both cases, the administration argued that the firearm restrictions being challenged were reasonable.

In refusing to hear the cases, the Supreme Court cited as precedent the 1939 ruling in the United States vs. Miller case that said the Second Amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."

The Brady Campaign, formerly known as Handgun Control, Inc., believes the Supreme Court's rejection of the Haney and Emerson cases represents a defeat for Second Amendment advocates.

"Every federal appeals court in the country, except two judges on the Emerson panel, has rejected the NRA view, and has held that the Second Amendment does not provide individuals with a right to possess firearms absent a relationship with a state militia," according to a statement from the Brady Campaign.

The actions of the Supreme Court, the Brady Campaign stated, continued what it called "its unbroken string of defeats in Second Amendment challenges to gun laws."

But the NRA believes the Supreme Court's refusal to hear Haney and Emerson cases relieves the Bush administration from having to further explain its position on the Second Amendment.

Chris Cox, the NRA's chief lobbyist, said the gun rights organization wasn't disappointed by the court's refusal to take up the Emerson and Haney cases because "our client is the Second Amendment" and not the individual defendants.

"The Second Amendment won," Cox said.

Court decisions notwithstanding, the current attitude at the White House and the Justice
Department is dramatically different from the one maintained during the Clinton administration.

During his time in office, Clinton lobbied strongly for passage of a background check law and an assault weapons ban and later signed those measures into law.

Clinton also desired but never got a national licensing program for all gun owners, running into opposition from those who said there were already hundreds of federal and state firearms regulations on the books, many of which were not being enforced.

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[MileHi]

"Every federal appeals court in the country, except two judges on the Emerson panel, has rejected the NRA view, and has held that the Second Amendment does not provide individuals with a right to possess firearms absent a relationship with a state militia," according to a statement from the Brady Campaign.

They can't point to a single cases that supports that statement.

[MileHi]

cases = case

[goldstategop]

Nope. The Miller decision isn't even a U.S Supreme Court directive as to how the Second Amendment holds in respect to the RKBA. In fact the Second Amendment has been the forgotten amendment in the Bill of Rights ligitation.

[Zon]

The actions of the Supreme Court, the Brady Campaign stated, continued what it called "its unbroken string of defeats in Second Amendment challenges to gun laws."

I think I can be of help. I'll keep it real simple. ;-)

Criminals don't abide the law. That's how they earned the "criminal" label. They pay no attention to gun laws. The more guns you get the government to take away from law-abiding citizens the greater the probability that some criminal is going to shoot you or a family member. Is that clear enough for you?

[Blood of Tyrants]

Correct. The Miller decision was a TAX matter.

[Eric in the Ozarks]

If we get the senate we need, we'll get the high court we want and that will settle the point.

Bye bye Carnahan. Bye bye Wellstone.

[norton]

Brady makes a case based on "...a 1939 U.S. Supreme Court ruling, in which the justices said the Second Amendment protects only those gun rights that have "some reasonable relationship to the preservation...of a well-regulated militia."

To illustrate their misuse of that statement take the following illustrations:

In WW2 Britain's home guard (a militia) was to some extent at least armed with firearms sent across the ocean by American gun owners, acting as individuals and contributing their own property to a common defense. (That property has never been returned by the way).

And,
I have two WW2 era training rifles, one American and one British. The US version looks like an '03 springfield and was used to teach marching and drill. The Brit version fills the same needs but also includes a pin-on target, trigger mechanism, and a nifty little forked thingy that pops out and makes a hole in the target...
Meaning?
That in order to sustain a militia, or to train an army, the Brit's needed to explain the most basic elements starting with "bullet (forked thingy) comes out here (muzzle) and will eventually make a hole over here (piece of paper one inch away from the muzzle).

My point?
In the end, reasonable national self defense cannot hinge on a tiny cadre of soldiers and a mass of clueless laborers drafted and trained in skills they were never before allowed to consider...unless you have a close relative at hand and willing to send its own militia into the breach while you figure it out!

Way back in the origins of the (much villified) Director of Civilian Marksmanship (DCMC) I believe the idea was that it was NECESSARY to have a significant number of civilians in the community who would be able to demonstrate and train others in the use of military/militia arms should the need arise. So far that need has not arisen, in part because those people are indeed out there.
(All we need to work out now is just how to arm a modern day militia with M-1's)

[SevenDaysInMay]

Our Constitution says what it says, not what temporary, elected office holders and Black Robes say it says, so long as we retain our Bill of Rights - not much longer IMO. Corrupt socialism, aka fascism, is thriving in America throughout our ruling class. The rights of the people stand in their way, but our liberty is being interpretted away.

[Wonder Warthog]

"(All we need to work out now is just how to arm a modern day militia with M-1's)"

Switzerland seems to have figured it out. They issue the "active militia" the most modern arms (full auto/select fire). The "inactive militia" gets the arms that are one generation older for the asking. This is pretty much what the "original intent" of the Civilian Marksmanship Program was. But who in the Federal government gives a hang about the original intent of ANY law OR the Constitution.

[tacticalogic]

"Thankfully, the justices do not share Attorney General John Ashcroft's enthusiasm for reinterpreting the Second Amendment," Nosanchuk added.

Maybe Bush should threaten to increase the USSC to 15 seats, and pack the vacant positions with judges more to his liking. It worked for FDR, and gave him the Commerce Clause that made the Miller case possible.

[MileHi]

Our Constitution says what it says, not what temporary, elected office holders and Black Robes say it says,

Unfortunatly there are fewer and fewer who can read it and believe that it says whatever some "official" says it means.

so long as we retain our Bill of Rights - not much longer IMO.

I fear you may be correct. What will come first, the collapse of the Republic or Armaggedon?

[robertpaulsen]

"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."

How many times do we have to put their own quote in context? It really galls me that the only way for the gun-grabbers to make their point is to lie, distort, and misquote.

[Eric in the Ozarks]

Its because they also own the media.

[Redbob]

The Miller case merely said that, "absent any evidence to the contrary" - since there was no defense present! - a sawed-off shotgun is not used in warfare, and therefore can't be considered a "militia weapon."

[philman_36]

"The Miller decision remains the law of the land and it continues to be followed in the lower courts," said Mathew Nosanchuk of the Violence Policy Center, a group that supports gun control.
Well! And all this time I thought the Constitution was the law of the land. Now I find out that a court decision is the law of the land. How about that!

[Austin Willard Wright]

The Miller cause does address whether or not the right to keep and bear arms is an individual right. The justices had other issues on the table when they made the ruling. There are portions of the ruling which are pro-second amendment. Most importantly, the ruling rejects the view that militia is somehow the same as the National Guard. Instead, it defines the militia quite broadly to essentially include all citizens.

[Faraday]

Does the fact the Supreme Court did not take the cases in question suggest their is no majority on this question? If so, perhaps that was for the best. And it means, that the judicial appointments are the most important domestic action President Bush will make in his 4 or 8 years as Chief Executive. He must play hardball to get justices confirmed who will uphold the intent of the 2nd Amendment and will overturn Roe v Wade.

[philman_36]

I was trying for sarcasm with Nosanchuk's quote. Looks like I failed. Maybe an /sarcasm was needed?

[William Tell]

From the article: 'In refusing to hear the cases, the Supreme Court cited as precedent the 1939 ruling in the United States vs. Miller case that said the Second Amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia." '

Can someone provide more complete information on this matter? I was not aware that the Supreme Court made any statement in refusing to hear the two cases recently denied cert.