Skip to comments.Bush Lawyers Target Gun Control's Legal Rationale
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 ...
this is a good reason why the last election mattered so much
thank god for sanity
Good, now that that's clear, how about eliminating the thousands of illegal gun laws? I have to say that I'm impressed that a politician will finally attempt to address this issue.
PS the constitution dosen't grant any rights, it just recognizes them.
"And I don't believe the Courts have been unanimous in referring to this as a collective right and I believe that just recently a Federal Court Decision recognized it as an individual right."
That is very true. It has been far from unanimous. 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.
The 5th Circuit in New Orleans recently came down with a well written individual rights interpretation with the Emerson decision.
Of course we have the most overturned Circuit in the country saying it is a collective right.
"this is a good reason why the last election mattered so much
thank god for sanity"
Because there is no such thing as an "unrestricted" right under the U.S. Constitution. If there were, then prisons would be unconstitutional.
Sugarcoating never solved nothing.
Let see, not only is Bush going after terrorism, the IRS, Social Security, tort reform. And he is also going about gun-control laws.
This makes me so happy I voted for him.
IIRC, the 5th Circuit had dicta, i.e. an addendum which is a formal statement of opinion, after their decision in the Emerson case from Texas that stated it was an individual right. The 9th Circus made a decision which stated their is no individual right in their decision, not subsequent dicta.
IIRC, The U.S. Supreme Court declined to decide the Emerson case, sending it back to the District Court where it originated for a ruling which was more clarified for legal precedent.
The use of the word firearms is also incorrect. The all inclusive term ARMS is what the Second Amendment says. The Bush/Ashcroft position is that the RKBA is an individual one, subject to government infringements. Note my tag line.
"Project (un)Safe Neighborhoods" gun confiscations are way up under the Bush administration, so he's fair game for bashing as a gun grabber.
Maybe something's going to happen that they aren't telling us about...The reason may be because we'll need unrestricted access to those weapons to survive...
God bless this administration.
However, it's interesting to note that the marines used sawed-off shotguns in the south pacific during WWII as banzai stoppers.
Where can I get more information about Project Safe Neighborhoods? This is the first time I've heard about it. I guess I could do a Google search.
Our troops used shotguns in World War I.
I hope your I TOLD YOU SOs are a regular event in the next four years. :o)
---I hope no one out there is silly enough to trust the present Supreme Court on the Second Amendment after what they did to the First over McCain-Feingold---