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 ...
I was not clear sorry. Leftist law professors, which is 99% of them, will say to your fact that grammar idicates that the second amendment is a collective not individual right despite the obvious contradiction with all the other amendments.
So in addition to NBC weapons you claim there is no protection for keeping and bearing bombs or grenades?
Tell me more about your common law distinction between "walking about" and "keeping and bearing". Is standing still with a bomb permitted?
And when do you claim that this prohibition first came about. At the time of our nation's founding, was "walking about" with a bomb prohibited? What is the legislative history of this "walking about" prohibition? Can you describe some laws prior to 1934 addressing this situation? Or was this some revelation that coincided with the Supreme Court invention of a "suitability" test in 1939?
How about Molotov cocktails? Is there a right to keep and bear bottles of gasoline and scraps of cloth? The Greeks used similar weapons thousands of years ago. Did our Founders just forget to mention such an exception?
How about Fuel Air Explosives. This is simply a volume of fuel expertly distributed so as to combust quickly. Are such devices also prohibited?
Why do you suppose that all the above items weren't considered by our Founders? They were certainly acquainted with bombs, cannon, black powder, etc. Why didn't they just make a list of the permitted arms? Or allow Congress to specify exceptions by legislation? Why is there no "walking about" exception mentioned? How can I tell when I am "walking about" versus "keeping and bearing"?
bttt
Should a person be allowed to keep and bear one measly little grenade?
Good question. I've never felt the need for one, have you? -- But off hand, seeing we all possess the right to have the materials to make them, I'd say yes, in effect, we do have that right, best left unexercised till needed.
The anti-gunners have outlawed even that. How many grenades may I keep and bear under your understanding of the Second Amendment? Two? Ten? A thousand? And what gives you or anyone the power to decide?
Suit yourself. -- How many do you want? -- Feel free to make as many as you like, -- its easy.
-- But be prepared to be thrown in jail as a mad bomber, [under common law] if you do. -- Who decides if you are a mad bomber? -- A jury of your peers. -- If our justice system is working.
Walking about with a bomb is the act of a madman, -- a threat to his peers. Walking about armed can defend against such threatening madmen.
So in addition to NBC weapons you claim there is no protection for keeping and bearing bombs or grenades?
Read the above. Is that what I claimed?
Tell me more about your common law distinction between "walking about" and "keeping and bearing". Is standing still with a bomb permitted?
It's up to the jury. Why would you be standing around with a bomb?
And when do you claim that this prohibition first came about. At the time of our nation's founding, was "walking about" with a bomb prohibited? What is the legislative history of this "walking about" prohibition? Can you describe some laws prior to 1934 addressing this situation?
I'm sure numerous states had many laws that could be applied to mad bombers. Do you disagree? Why? -- Are you for the 'right to bomb' your peers?
Or was this some revelation that coincided with the Supreme Court invention of a "suitability" test in 1939?
Beats me. The USSC has made a LOT of stupid decisions over the years.
How about Molotov cocktails? Is there a right to keep and bear bottles of gasoline and scraps of cloth?
All such devices are essentially bombs, -- so my initial answer applies, as you can read just above.
Do you have some compulsion to repeatedly ask the same questions? Make some new points for a change, or give it up.
The Greeks used similar weapons thousands of years ago. Did our Founders just forget to mention such an exception? How about Fuel Air Explosives. This is simply a volume of fuel expertly distributed so as to combust quickly. Are such devices also prohibited?
Yada Yada, asked & answered. Get some new lines.
Why do you suppose that all the above items weren't considered by our Founders? They were certainly acquainted with bombs, cannon, black powder, etc. Why didn't they just make a list of the permitted arms?
Because they possessed common sense, which is in short supply in your posts herein.
Or allow Congress to specify exceptions by legislation? Why is there no "walking about" exception mentioned?
How can I tell when I am "walking about" versus "keeping and bearing"?
A jury of your peers can tell you.
Look up the statutes on felonious mopery, [standing or walking about with a bomb] and all will be clarified.
And what would happen if other Freepers arranged, at a safe location, to demonstrate the proper construction and use of such arms? Is it still up to a jury, or is our right to keep and bear arms that consist of gasoline and bottles protected by the Second Amendment?
On another thread, anti-gun Tom Dias says about .50 caliber rifles:
"I'm glad Ronnie Barrett makes his rifle for our military forces. I think it's a great thing on the battlefield. I just think that there are certain occasions when we say in our society, this product is such a threat to our health and safety, and in this case, our national security, we will not allow it."
I still don't understand how your prohibitions are valid and his aren't.
How about Molotov cocktails?
Is there a right to keep and bear bottles of gasoline and scraps of cloth?
The Greeks used similar weapons thousands of years ago. Did our Founders just forget to mention such an exception?
You want the "right to keep and bear bottles of gasoline and scraps of cloth"?
Try this little experiment William.
Walk into the Freepers Ball in DC with such a 'cocktail', and light the wick.
Two bits they would commit you [if you survived] as a madman under provisions of our common law, -- rather than charging you with bearing 'illegal' arms.
Wanna bet?
And what would happen if other Freepers arranged, at a safe location, to demonstrate the proper construction and use of such arms?
There you go. You finally admitted that sane men limit bomb use to "a safe location". -- Been to Knob Creek lately?
On another thread, anti-gun Tom Dias says about .50 caliber rifles:
"I'm glad Ronnie Barrett makes his rifle for our military forces. I think it's a great thing on the battlefield. I just think that there are certain occasions when we say in our society, this product is such a threat to our health and safety, and in this case, our national security, we will not allow it."
I still don't understand how your prohibitions are valid and his aren't.
I advocate no 'prohibitions', as you well know. Rifle bore size or cartridge power limits are a clear infringement of our RKBA's
Dias is exaggerating the "threat" to make his point, -- Much as you've been exaggerating your 'right to make/use Molotov cocktails'.
You most certainly did advocate laws prohibiting "walking about" with a bomb. You didn't say, "threatening" with a bomb nor did you provide any clarification as to how your prohibition would still permit "keeping and bearing".
Your only justification for such infringements have been based on the same arguments used by the anti-gunners; that such prohibitions are necessary for health or safety.
Despite repeated invitations to explain why anti-gunners are wrong to violate the Second Amendment using such arguments, you have not done so. You don't explain how .50 caliber rifles ARE "arms" protected by the Second Amendment but bombs are not "arms" protected by the Second Amendment.
Everything you have said is equivalent to interpreting the Second Amendment to read: "... the right of the people to keep and bear SMALL arms shall not be infringed." If that is what our Founders meant, they could have said so.
There you go. You finally admitted that sane men limit bomb use to "a safe location".
I advocate no 'prohibitions', as you well know.
Rifle bore size or cartridge power limits are a clear infringement of our RKBA's
Dias is exaggerating the "threat" to make his point, -- Much as you've been exaggerating your 'right to make/use Molotov cocktails'.
You most certainly did advocate laws prohibiting "walking about" with a bomb.
No. I most certainly did NOT advocate laws prohibiting 'bombs'. You're fabricating because you are desperate, having conceded my original point, just above.
My point was & is that sane men have limits on walking about with bombs. -- And you admitted that, just above, in bold..
You didn't say, "threatening" with a bomb nor did you provide any clarification as to how your prohibition would still permit "keeping and bearing".
Whatever. Now you want to nitpick the issue, in order to save face. Feel free.
Your only justification for such infringements have been based on the same arguments used by the anti-gunners; that such prohibitions are necessary for health or safety.
You too; -- "And what would happen if other Freepers arranged, at a safe location, to demonstrate the proper construction and use of such arms?
Despite repeated invitations to explain why anti-gunners are wrong to violate the Second Amendment using such arguments, you have not done so. You don't explain how .50 caliber rifles ARE "arms" protected by the Second Amendment but bombs are not "arms" protected by the Second Amendment.
You tell me then Hotshot. How are your 2nd Amendment rights infringed by being thrown in jail for having a bomb at the Freepers Ball?
Everything you have said is equivalent to interpreting the Second Amendment to read: "... the right of the people to keep and bear SMALL arms shall not be infringed." If that is what our Founders meant, they could have said so.
No, that is not "equivalent" of what I've said here. -- We have an inalienable right to keep and bear arms. the mere size of the arms has little to do with their function & use. Sane men have sane limits on walking about with bombs. -- Madmen insist they have a 'right' to walk about with Molotov cocktails.
Let's propose three versions of the Second Amendment, beginning with the original:
Version 1:"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."
Version 2:"A well-regulated militia being necessary to the security of a free state, the right of the people to keep, bear, and walk about with ANY arms shall not be infringed."
Version 3:"A well-regulated militia being necessary to the security of a free state, the right of the people to keep, bear, and walk about with ANY ARMS, WHETHER NUCLEAR, BIOLOGICAL, CHEMICAL OR OF .50 CALIBER, shall not be infringed."
Does version 3 prohibit infringements of the right to keep and bear a tactical nuclear weapon? Would a Constitutional amendment be necessary to regulate such a weapon?
Is version 3 different in effect than version 2 simply because it enumerates some of the arms protected? How can "ANY ARMS" not include any arms whatsoever?
How is version 1 deficient from the lack of the word "ANY"? Does use of the single word "arms" imply that only some arms are protected?
Given MY understanding of the Second Amendment, how would you recommend that a replacement amendment be worded?
No, that is not "equivalent" of what I've said here.
-- We have an inalienable right to keep and bear arms.
The mere size of the arms has little to do with their function & use. Sane men have long had sane common law limits on walking about with bombs.
-- Madmen insist they have a 'right' to walk about with Molotov cocktails.
You continue with your notion that "walking about" with a weapon is the behavior of a madman, while "keeping and bearing" are protected.
It's not a 'notion', it's a fact enforced by our common law, - walking around with a bomb is the behavior of a madman.
-- Keeping & bearing arms is an inalienable right.
Given MY understanding of the Second Amendment, how would you recommend that a replacement amendment be worded?
Sorry, - I cannot understand your insistence that you have a 'right' to take a Molotov cocktail to the Freepers Ball; -- so, while we can all understand that we have the right to be armed, -- especially in DC going to & from the Freepers Ball; ---- I'd vote to leave the wording as is, -- and work on stopping the infringements.
Best news! The cowboy wouldn't let us down on this one. And Jophn Ashcroft is some kind of guy, too! God bless 'em!
The reason that fact is not present in the Miller decision is that the defendants never filed a response to the Government's brief. (They had dissappeared and IIRC, had been killed prior to their appeal being heard)
The fact that the Court found standing for two individuals to perfect the appeal on the basis of a violation of the Second Amendment is a fact lost on the antis. (IF THE SECOND AMENDMENT PROTECTED A COLLECTIVE RIGHT OF THE GOVERNMENT THE COURT COULD HAVE RULED THAT THE APPELLANTS DID NOT HAVE STANDING TO ASSERT A RIGHT HAD BEEN VIOLATED.) As is the fact that the Government conceded in it's brief that the right was an individual one. It is amazing how the case has been mis-stated by the antis.
bmp
Details please.
If I were to make a guess...I'd say Johnny Ashcroft is a cowboy, too.
Search the web...any current law review article explains why Miller really doesn't stand for what the antis say it does.
I am asking about the case itself, but the defendants being killed/disappearing, I would like to know more of those details.
bang!
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