Try to take my gun and you WILL get shot, plain & simple.
Posted on 01/07/2005 9:56:54 AM PST by 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...
(Excerpt) Read more at online.wsj.com ...
5.56mm
Well, short barreled ones at any rate. They had also used them in the various "banana wars" which were ongoing or had just subsided, when the Miller decision was rendered. The problem was of course that no one presented that information at either trial court or the Supreme Court There was no appeals court action, the government had appealed directly to the Supreme Court, where only the government was represented, which is why no one presented that little tidbit to the SC. At the trial court level, the judge took "judicial notice" (although not formally) that the second amendment protects the right to keep and bear arms, not just militia suitable arms, although the Supreme pretended that they had taken notice, without hearing any evidence to that effect, that the short barreled shotgun was suitable for militia use.
Of course it's too bad that the moonshiner didn't have a BAR or Thompson, instead of some POS single shot. The Supreme Court would have looked pretty silly arguing that either of those was not suitable for a well regulated militia.
The right is unrestricted, but it can be removed via due process for individual trangressions, just like the right to liberty (ie freedom of movement) can be.
Do you have any idea of what exactly this means?
States, and the colonies before them, as well as cities and towns, had militias long before 1791. The Militia Act of 1792 was passed under Congress power "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States", which is found in Art. I, Sec. 8 of the main body of the Consitution not under the Second Amendment.
A law passed after the second amendment cannot logically define nor most especially limit it's scope. If this were not so, the Congress could just pass a law defining the militia as the police and National Guard, as the antis would have it. The second amendment states that the right belongs to the people, with no exceptions mentioned.
This is a fiction first generated in the early 70s. Find any old encyclopedia or history of the National Guard published prior to 1970 and there is no ambiguity regarding who posseses what rights or what the 'miltia' is.
The miltia as written in the constitution is ALL THE PEOPLE!
October 5, 2004
Let the Courts Resolve the D.C. Gun Ban by Robert A. Levy
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and author of the forthcoming book Shakedown: How Corporations, Government, and Trial Lawyers Abuse the Judicial Process.
The House of Representatives has passed the D.C. Personal Protection Act (H.R. 3193), which would overturn a 28-year ban on handguns in the nation's capital. The Senate version (S. 1414) won't be considered until after the election. In the meantime, the usual suspects are raising the usual arguments against letting D.C. residents defend themselves. Those arguments are bogus, and the legislation should not be defeated because of them. Still, there are important reasons for Congress to step aside and leave this matter to the courts. In a nutshell, here's the erroneous case, then the legitimate case, for Congress to butt out.
The first erroneous argument was predictably made by Del. Eleanor Holmes Norton (D-D.C.): "We have got to fight every intrusion into our self-government." Nonsense. Congress, as expressly set out in Article I of the U.S. Constitution, has plenary power over the District and every member of Congress has an independent, affirmative obligation to uphold the Constitution. If the District's handgun ban violates the Second Amendment -- as it does -- then Congress should act to defend D.C. residents' Second Amendment rights.
The second erroneous argument, as made by the Washington Post, is that Congress should not use its plenary power in a supposedly local matter because "the District is hardly unique." Wrong again. The District is indeed unique -- it's a regular contender for the dubious title, "murder capital of the nation." At the same time, it has the most draconian gun laws of any major city -- banning everyday, garden-variety pistols of the kind that disarmed, innocent victims in D.C. have a right to use within their homes for self defense. If "reasonable" regulations are those that prohibit bad persons from possessing massively destructive firearms, then the District's blanket prohibitions are patently unreasonable. The Post got it right in an editorial two years ago: "Some gun laws -- Washington's notably among them -- sweep more broadly than any individual right can reasonably be read to permit."
The D.C. government, a creature of Congress, is constrained no less than the federal government itself by the Second Amendment. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But unlike most of the other ten amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because the District is not a state and is controlled by Congress, that complex, widely debated question need not be addressed when D.C. law is challenged on Second Amendment grounds.
Nonetheless, there is a valid reason to oppose the D.C. Personal Protection Act. Two Second Amendment lawsuits filed by decent, peaceable, upstanding D.C. residents are now pending before the U.S. Court of Appeals for the D.C. Circuit. I am co-counsel in one of those suits, which was filed by six plaintiffs who simply want a handgun at home to defend their lives and property. If the pending bill is enacted, both lawsuits will be dismissed as moot. After all, plaintiffs cannot challenge a law that no longer exists.
Otherwise, the lawsuits could well be headed to the Supreme Court; and that's where they belong. The citizens of this country deserve a foursquare pronouncement from the nation's highest court about the real meaning of the Second Amendment for all Americans -- not just the residents of D.C. Presently, because the Court hasn't resolved its view of the Second Amendment, the right to keep and bear arms extends only as far as each state's constitution or statutes permit. That's not good enough. A Second Amendment right without a legally enforceable federal remedy is, in some states, no right at all.
Some Court-watchers fear a hostile reception. Maybe so. But if a Republican president is filling vacancies, the Court will probably lean toward a more vigorous assertion of Second Amendment rights by the time the two cases are reviewed. More important, if a good case doesn't reach the nine justices, a bad one will. Spurred by Attorney General John Ashcroft's endorsement of an individual right to bear arms, public defenders across the country are invoking the Second Amendment as a defense to prosecution. How long before the high court gets one of those cases, with a crack dealer as the Second Amendment's poster child?
Yes, the rights of D.C. residents can be vindicated by either legislation or litigation. But a narrow bill aimed at the D.C. Code will do only part of the job. The bill could be repealed by the next liberal Congress. D.C. officials might find ways of skirting the bill's provisions by exercising their bureaucratic discretion. And the bill would have no effect outside of the District. That means, of course, that it would have negligible impact on gun owners' rights when contrasted with an unambiguous proclamation, applicable across the nation, from the U.S. Supreme Court.
This articled was published on Nationalreview.com, October 1, 2004.
And the government does not have the power to tape your mouth shut because you might shout fire when there was no fire. Of course if they did, then you couldn't shout fire when there was a fire either. That would be completely analagous to gun laws.
You wouldn't need to skin it, heck it would already be ground and ready to add seasoning for venison sausage, or make venison burghers or chili or Runzas (A German-Russian cabbage and meat roll) out of.
He can, but only through an individual due process. You can't pass a blanket ban on all "diagnosed paranoid schizophrenics" possessing firearms, UNLESS that law provides for an individual finding, in a court if the individual requests, that the person is prohibited from owning firearms.
However, "common sense" notwithstanding, such a law will prevent very few "paranoid schizophrenics" from obtaining and misusing weapons, any more than current laws prevent convicted felons from obtaining them.
Of course it is. What with all the folks sworn to support and defend it, and with it's provision for it's own amendment. What it isn't is an infinitely "interpretable" document. It means what it says, and that meaning doesn't change with time, absent a formal amendment.
Or words to that effect.
That, like the restriction on convicted felons owning firearms., is a product of the late 20th century, at least at the federal level. IIRC, the gun restrictions are part of the 1968 Gun Control Act.
Thanks for Levy's article.
You think making it illegal is going to stop them? Killing all those folks is illegal too you know.
Try to take my gun and you WILL get shot, plain & simple.
Well, more like a large suitcase or medium trunk nuke. We however made "backpack" nukes, to be used by stay behind Special Forces, to close the choke points from the East and stop the Red Hordes (and all those tanks they had) from pouring out into Germany and the rest of western Europe.
They were stored there because the town or township *owned* them. Individuals were free to keep the ones they owned wherever they choose. Many chose to keep them on their on their ships for protection against pirates and privateers of other countries, or in their dockside warehouse, for mounting on said ship, when needed.
It is legal for civilians to own machineguns,
Only if they were manufactured before 1986.
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