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Bush Lawyers Target Gun Control's Legal Rationale
THE WALL STREET JOURNAL ^ | January 7, 2005 | JESS BRAVIN

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 ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Front Page News; Government; News/Current Events; Politics/Elections; US: California; US: District of Columbia; US: Louisiana; US: Texas; War on Terror
KEYWORDS: ashcroft; bang; banglist; doj; guncontrol; secondamendment
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http://www.usdoj.gov/olc/secondamendment2.htm
1 posted on 01/07/2005 9:56:55 AM PST by neverdem
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To: neverdem

Way to go, JOhn.


2 posted on 01/07/2005 9:58:20 AM PST by Beckwith (John, you said I was going to be the First Lady. As of now, you're on the couch.)
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To: neverdem

bump...


3 posted on 01/07/2005 9:59:32 AM PST by orionblamblam
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To: orionblamblam
the Second Amendment grants individuals nearly unrestricted access to firearms

Of course it does...the Bill of Rights (the 1st ten amendments) are for and by The People. So, they'd have you believe that that's true for all of them, EXCEPT THAT ONE?

These people are insane.

4 posted on 01/07/2005 10:02:10 AM PST by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it.)
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To: neverdem

The Second Ammendment gives John Kerry the right to shoot geese


5 posted on 01/07/2005 10:02:37 AM PST by Military family member (Go Colts!)
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To: orionblamblam

btt


6 posted on 01/07/2005 10:03:15 AM PST by Sacajaweau (God Bless Our Troops!!)
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To: neverdem
remains open and unsettled in the courts and among scholars

But not among patriots...

7 posted on 01/07/2005 10:03:29 AM PST by Feckless
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To: Joe Brower

ping for bang list


8 posted on 01/07/2005 10:03:32 AM PST by beaureguard
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To: neverdem

Roll up the report and shove it up the Brady bunch of boneheads posterior breathing hole!!!!


9 posted on 01/07/2005 10:03:54 AM PST by HMFIC (US Marines, you yell, we shell.)
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To: Feckless
remains open and unsettled in the courts and among scholars

AKA SCUMABAGS and CHEESED!CKS!
10 posted on 01/07/2005 10:04:53 AM PST by HMFIC (US Marines, you yell, we shell.)
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To: Mo1; Miss Marple; Peach; MEG33; Txsleuth; onyx; ohioWfan; cyncooper; deport; anniegetyourgun

So much for the "Bush is dumping on gunowners" rants.


11 posted on 01/07/2005 10:05:04 AM PST by Howlin (I need my Denny Crane!)
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To: neverdem

"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."

It as ambiguous as the meaning of the word "is".

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.

The Constitution is quite clear when referring to individual rights, states' rights and the Federal Government's rights and the Second Amendment was clearly intended to be an individual right.


This is the fruit of "loose construction", giving a bunch of black-robed attorneys who are also political hacks the right to distort the obvious intent of the Founding Fathers.

I hope Bush and his attorneys and Ashcroft stick this through to the bitter end.


12 posted on 01/07/2005 10:05:17 AM PST by ZULU (Fear the government which fears your guns. God, guts, and guns made America great.)
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To: neverdem

This is a great example of the Constitution being perfectly clear but the courts wanting to have it their way. It could not be more obvious that the right applies to individuals, but unrestricted gun ownership is simply unacceptable to the modern ruling class (as it was to the English ruling class before them...)


13 posted on 01/07/2005 10:06:26 AM PST by gridlock (ELIMINATE PERVERSE INCENTIVES)
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To: Howlin

BUMP!


14 posted on 01/07/2005 10:07:11 AM PST by MEG33 (GOD BLESS OUR ARMED FORCES)
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To: Howlin

But but, Bush is liberal! How could his administration be doing this??????????????????????????

/s


15 posted on 01/07/2005 10:07:33 AM PST by cyncooper
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To: Howlin


They "should have" got that message
when he purposely let the so called
"assault weapons ban" expire.

But, noooooooooooooooooooo,
it's much more fun to bash Bush.


16 posted on 01/07/2005 10:08:15 AM PST by onyx (A BLESSED & MERRY CHRISTMAS TO ALL.)
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To: neverdem
...the Second Amendment grants individuals nearly unrestricted access to firearms.

There are no conditions for firearms ownership mentioned in the Second Amendment so I don't understand why the phrase "nearly unrestricted" was used in this statement.

17 posted on 01/07/2005 10:10:02 AM PST by SilentServiceCPOWife (A tagline! A tagline! My kingdom for a tagline!)
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To: Feckless

"remains open and unsettled in the courts and among scholars"


Even the (Liberal) Lawrence Tribe has come down on the individual right side of the debate in one of his books. He did get some hate mail from fellow Libs for that one!


18 posted on 01/07/2005 10:10:28 AM PST by need_a_screen_name
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To: neverdem

bump


19 posted on 01/07/2005 10:11:34 AM PST by satchmodog9 (Murder and weather are our only news)
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To: HMFIC
You've GOT to quit keeping your feelings bottled up ... go ahead ... tell us what you really think of them!
20 posted on 01/07/2005 10:12:30 AM PST by ArrogantBustard (Western Civilisation is Aborting, Buggering, and Contracepting itself out of existence.)
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To: need_a_screen_name

this is a good reason why the last election mattered so much

thank god for sanity


21 posted on 01/07/2005 10:12:33 AM PST by jneesy (certified southern right wing hillbilly nutjob)
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To: neverdem
the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms.

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.

22 posted on 01/07/2005 10:13:21 AM PST by CrawDaddyCA
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To: neverdem
Once someone reads the preamble to The BOR, that person can never again hold the 'collective right' position.

PS the constitution dosen't grant any rights, it just recognizes them.

23 posted on 01/07/2005 10:17:36 AM PST by Triple (All forms of socialism deny individuals the right to the fruits of their labor)
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To: ZULU

"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.


24 posted on 01/07/2005 10:18:12 AM PST by need_a_screen_name
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To: jneesy

"this is a good reason why the last election mattered so much

thank god for sanity"




Exactly!


25 posted on 01/07/2005 10:20:03 AM PST by need_a_screen_name
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To: SilentServiceCPOWife
I don't understand why the phrase "nearly unrestricted" was used in this statement.

Because there is no such thing as an "unrestricted" right under the U.S. Constitution. If there were, then prisons would be unconstitutional.

26 posted on 01/07/2005 10:20:04 AM PST by Alberta's Child
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To: ArrogantBustard

LOL!

Sugarcoating never solved nothing.


27 posted on 01/07/2005 10:20:23 AM PST by HMFIC (US Marines, you yell, we shell.)
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To: 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.

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.

28 posted on 01/07/2005 10:24:13 AM PST by Paul C. Jesup
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To: ZULU
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.

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.

29 posted on 01/07/2005 10:29:49 AM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: SilentServiceCPOWife; Howlin; onyx

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.


30 posted on 01/07/2005 10:29:49 AM PST by TERMINATTOR ("I believe in background checks at gun shows or anywhere" - GWB)
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To: neverdem
the Second Amendment grants individuals nearly unrestricted access to firearms

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...

31 posted on 01/07/2005 10:29:56 AM PST by MD_Willington_1976
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To: neverdem

God bless this administration.


32 posted on 01/07/2005 10:30:47 AM PST by G32
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To: need_a_screen_name
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.

33 posted on 01/07/2005 10:30:51 AM PST by Mogollon
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To: TERMINATTOR

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.


34 posted on 01/07/2005 10:33:19 AM PST by SilentServiceCPOWife (A tagline! A tagline! My kingdom for a tagline!)
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To: Mogollon

Our troops used shotguns in World War I.


35 posted on 01/07/2005 10:34:30 AM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: TERMINATTOR



BS


36 posted on 01/07/2005 10:35:43 AM PST by onyx (A BLESSED & MERRY CHRISTMAS TO ALL.)
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To: Howlin
So much for the "Bush is dumping on gunowners" rants.

I hope your I TOLD YOU SOs are a regular event in the next four years. :o)

37 posted on 01/07/2005 10:35:49 AM PST by OHelix
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To: Howlin

Yeehaw!


38 posted on 01/07/2005 10:36:29 AM PST by anniegetyourgun
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To: SilentServiceCPOWife
It's a new name for Project Exile promoted by the NRA which encouraged federal prosecution for any crime involving guns with a mandatory five year sentence, IIRC.
39 posted on 01/07/2005 10:42:11 AM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: neverdem

---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---


40 posted on 01/07/2005 10:43:24 AM PST by rellimpank (urban dwellers don' t understand the cultural deprivation of not being raised on a farm)
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To: neverdem
Welcome news indeed.

I wonder what else lurks on the second term W agenda...

BTTT

41 posted on 01/07/2005 10:45:35 AM PST by March I up
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To: neverdem

Thanks for the info and the link.


42 posted on 01/07/2005 10:45:41 AM PST by SilentServiceCPOWife (A tagline! A tagline! My kingdom for a tagline!)
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To: Howlin

So much for the "Bush is dumping on gunowners" rants.



All it argues is that there is an individual right.

There is nothing to undermine the Bush doctrine of "reasonable restrictions" which is exactly the Schumer/Feinstein doctrine.

Read the part of the memo relating to Miller, and consider the obvious unasked question: "if a sawed off shotgun isn't related to military use and thus may be restricted under the NFA of 1934, WHAT ABOUT MACHINE GUNS!!!!?"

Bush supports 1934, 1968, 1986, and AWB. He loves restrictions. I guess like Kerry, he believes there is an individual right to have shotguns and hunting rifles for certain people who jump through certain hoops. Big deal.

Bush has perfectly fallen into the trap set by the antis. They present an absurd position (collective right) as if it is a legitimate dispute, then Bush crows, and his gullible supporters applaud, when he says that the absurd is incorrect. Imagine how excited you will be when the Supreme Court finally rules that it is an individual right. Big deal. Decades of creeping gun control, and some gullible people will think that "we" will have gained something. In fact, we are fighting on their turf, instead of discussing repeal of unconstitutional gun laws like 1934, 1968, and 1986.

JFK used federal powers to keep states from opressing blacks. Bush hasn't lifted a finger to releive the oppression of residents of DC, for instance. And his minions have continued to toss people in jail for possessing guns that should be legal under the Constitution.


43 posted on 01/07/2005 10:46:14 AM PST by Atlas Sneezed (Your Friendly Freeper Patent Attorney)
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To: TERMINATTOR

You know, I wonder if there is anything that George Bush can do that you all can't find SOMETHING wrong with.

Ridiculous.


44 posted on 01/07/2005 10:46:43 AM PST by Howlin (I need my Denny Crane!)
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To: gieriscm

ping


45 posted on 01/07/2005 10:47:58 AM PST by BCR #226
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To: Puppage
the Second Amendment grants individuals nearly unrestricted access to firearms

Yes I remember the Second Amendment (Republican version) well saying that the right of the people to bear arms shall only be somewhat infringed unless the government wants to infringe it for what bureaucrats think is a good reason. As opposed to the Democrat's version which says the right of the people to bare arms only applies to those people in the military and law enforcement.

46 posted on 01/07/2005 10:50:35 AM PST by from occupied ga (Your government is your most dangerous enemy, and Bush is no conservative)
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To: neverdem

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 posted on 01/07/2005 10:52:19 AM PST by Atlas Sneezed (Your Friendly Freeper Patent Attorney)
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To: neverdem
All I think you really need to do is get people to read the early drafts of the Bill of Rights. Phrases like the militia clause where common in many of the other items (including free speech) but were dropped in most other cases because they weren't really necessary. Basically, that clause is meant to justify the claim to that right, not to qualify it.

You can find a good collection of early versions here.

48 posted on 01/07/2005 10:54:04 AM PST by Question_Assumptions
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To: Question_Assumptions

Thanks for the link, bookmarked.


49 posted on 01/07/2005 10:58:37 AM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: cyncooper
But but, Bush is liberal! How could his administration be doing this?

He's pretty liberal in using our money to build a bigger, more powerful fedgov, but he's definitely not all bad, case in point.

50 posted on 01/07/2005 11:04:10 AM PST by antiRepublicrat
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