Bush Lawyers Target Gun Control's Legal Rationale

THE WALL STREET JOURNAL ^ | January 7, 2005 | JESS BRAVIN

[neverdem]

Readying for a constitutional showdown over gun control, the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms.

The memorandum, requested by Attorney General John Ashcroft, was completed in August but made public only last month, when the Justice Department's Office of Legal Counsel posted on its Web site several opinions1 setting forth positions on various legal issues. Reaching deep into English legal history and the practice of the British colonies prior to the American Revolution, the memorandum represents the administration's latest legal salvo to overturn judicial interpretations that have prevailed since the Supreme Court last spoke on the Second Amendment, in 1939. Although scholars long have noted the ambiguity of the 27-word amendment, courts generally have interpreted the right to "keep and bear arms" as applying not to individuals but rather to the "well-regulated militia" maintained by each state.

Reversing previous Justice Department policy, Mr. Ashcroft has declared that the Second Amendment confers a broad right of gun ownership, comparable with the First Amendment's grant of freedom of speech and religion. In November 2001, he sent federal prosecutors a memorandum endorsing a rare federal-court opinion, issued the previous month by the Fifth U.S. Circuit Court of Appeals in New Orleans, that found an individual has the right to gun ownership. President Bush adopted that view as well, saying that "the Constitution gives people a personal right to bear arms," and doesn't merely protect "the rights of state militias," in an interview published days before last year's election in National Rifle Association magazines.

The new Justice Department memorandum acknowledges that "the question of who possess the right secured by the Second Amendment remains open and unsettled in the courts and among scholars," but goes on to declare that...

[Miss Marple]

The laws on the books regarding dangerous mentally ill people are screwed up:

1. There is rarely forced commitment any more, because it is very difficult.

2. Because forced commitment is rare, there is no mechanism to force dangerous people to take their medicines.

3.There is no fail-safe on releasing dangerous people.

I am not advocating making gun laws more strict. I am advocating better supervision of the mentally ill.

[Question_Assumptions]

I've managed to change opinions with those early drafts. The key argument that gets tossed back is, "Those early drafts weren't ratified and the one we have was." To anybody who is being honest, though, the evolution of the militia wording, the cornerstone of the claim that the right to bear arms is not an individual right, doesn't mean what gun control advocates claim it means. So, no, you'll never convince those for whom truth is fluid in the quest to achieve their goal of gun control but I've certainly seen those early drafts slow the honest people down who thought the whole militia clause was a slam-dunk.

[MileHi]

Even the 1939 Miller decision (that most anti's cite) only stated that a sawed off shotgun was not weapon commonly used by the military and therefore was not a militia weapon.

However, it's interesting to note that the marines used sawed-off shotguns in the south pacific during WWII as banzai stoppers.

The court actually said that since it "is not within judicial notice" that a short barreled shotgun was commonly used by the military, since no one showed up to argue Millers side. They could not just assume facts not in evidence. The decision has been mischaratorixed ever since.

[kildak]

Nor does the Bill of Rights "grant" anything. Rights, by their very nature, cannot be granted.

[Dead Corpse]

Not what I was saying at all. A Court proceeding is the ONLY way to remove someones specificly PROTECTED Rights. Not just making some random Law that hits everyone before any crime is committed. Can't have both a Law AND an Amendment. Want the Law? Get rid of the Amendment.

Say they pass a law saying all schizophrenics are banned from owning firearms. Ok. Now how do they prove who is a schizo? Does everyone require testing to prove they are NOT a schizo? "Before the fact" laws more often end up not working as intended and are the exact kind of slippery slope that has given us 22,000 Federal Gun Laws. Not to mention all the idiot State Laws that are every bit as much of an "infringement" on such a basic human Right.

Try them for actual crimes committed. Incarcerate them. Commit them. It really is the only way as our Constitution is writen. Unless you want more of what the Left is trying to do to this country? No? I didn't think so...

[Dead Corpse]

I would prefer to see us revamp the commitment Laws. I agree, there are problems there. Our Governments, Fed and State, would have that many more resources to do so if they got rid of their War on Guns. One, that by our Constitution, they have no power to be waging.

[jonestown]

The Bush/Ashcroft position is that the RKBA is an individual one, subject to government infringements.

30 TERMINATTOR

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Read the article.
The RINO position is that our individual RKBA's can be 'regulated' in any way the government decides is best for the "general Welfare" of the USA.

In effect the 'finding' is a sugar tit for us gun nuts.

[Chemist_Geek]

I just don't want to hear any wild tales that it's unconstitutional to do so even WITH a court proceeding.

The gun-fundamentalists will surely bleat, "What part of shall not be infringed don't you understand?"

And it is that very attitude which has enabled the gun-control advocates to marginalize firearms rights in the minds of the public.

[Dead Corpse]

What part of "due process" do you not understand?

[Chemist_Geek]

If you can't be trusted with a gun, you belong in a cage.

Hmm. Lifetime imprisonment for any and all crimes?

[Dead Corpse]

Any and all violent crimes where you should not be trusted with weapons ever again? Sure. Why not.

[Chemist_Geek]

It doesn't say that the RKBA may be infringed after conviction, now does it? All it says is "shall not be infringed." Therefore, according to the fundamentalist interpretation, no one may ever lose their RKBA.

[Diego1618]

I've always been amazed why people think that nine of the amendments in the "Bill of Rights" protect us FROM government, but the second amendment was written to insure that we could always go out and shoot a turkey for dinner!
We were given the 2nd amendment to protect ourselves. The colonies would not ratify the Constitution unless the other nine were specified also.......To protect ourselves FROM an all powerful centralized government.
Think about how difficult it would be for a tyrant to really get a foothold in this country if he had to worry about 25 or 30 million men (and women) at arms to depose him.
Militia meant "citizen men at arms". Well regulated meant equipped and capable. Look in any old dictionary.

[jonestown]

WSJ: "the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms."

______________________________________


It says nothing of the kind. It says there is an individual right, but it says nothing contrary to the multitude of onerous restrictions on access to firearms presently endured by the people.
47 Beelzebubba

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Such as???


Exactly what purpose do you suppose the memo was drawn up if not to perhaps address some of your concerns? Mere busy work, tossing in historical context for the heck of it?
73 cyncooper

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Such as the estimated 20,000 State & Federal 'laws' regulating arms that are on the books.


The memorandum is a finding that does nothing to stop further State & Fed over-regulation of arms. [read infringements]
It's purpose? To keep us quiet while the gun grabbers enact more 'law'.

[Dead Corpse]

Right back to argumentum absurdum. Great way to start a flame war. Not a good way to win an argument.

The Constitution also provides for due process.

Don't be more of a moron than you absolutely need to be.

[Dead Corpse]

The only country in the world to produce a briefcase nuke, that we know of, was Russia. They can't account for all of them in their inventories. Our southern border is wide open for all intents and purposes.

Now, how does restricting our 2A Rights solve this situation?

Do you think for one second that there would even BE a Middle East is some of our rich, Texas oil barrons could afford Nukes?

It's an absurd argument. Give it a rest.

[agitator]

Hey bud, do me a favor and wake me up when the BATF has to go out and get an honest job. Thanks.

[Eagle Eye]

Even the 1939 Miller decision (that most anti's cite) only stated that a sawed off shotgun was not weapon commonly used by the military and therefore was not a militia weapon.

Of course Kalifornia bans the BMG .50 cal because it is a military weapon!

Too big, too small...it isn't about safety, it is about control.