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...

[Exton1]

Re: Bush Lawyers Target Gun Control's Legal Rationale

It is obvious that this was written by a leafiest, because they use the Marxist code words of “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.”

The Bill of Rights (the 1st ten amendments) are for and by The People. So, your words would have one believe that that's true for all of them, EXCEPT THE SECOND AMENDMENT. The writer seems to ignore the fact that the Constitution is to RESTRICT GOVERNMENT not the PEOPLE.

The writer should have pointed out that there was no ambiguity with the Second Amendment until the Marxists started to try to restrict gun ownership. This is a trick of propagandists, to get what you want Change the Meaning of the words, re interpret what is said so as to confuse and then allow the RIGHT to be Stolen.

Now is the time for Patriots to show themselves and start attacking the Marxists who would destroy this great country, it is not time to quote their lies.
Exton

[SilentServiceCPOWife]

I understand. I think I'm just so used to seeing anti-gun articles that I saw a problem in this one where one didn't exist.

[OXENinFLA]

If you believe that Hillary should decide if you may have a gun, I guess you're good to go.

Uh, No. I believe that the 2nd means just what it says..

I was just putting the quote to referanced into it's full context.

"We stand for the Second Amendment, which protects every American's individual right to bear arms. " GWB ~~ October 20, 2004

[ThanhPhero]

Military use is the only valid excuse for any sort of "gun control" because that is how the USC is worded. Because it was seen as necessary to maintain a militia(armed and trained citizens) then the arms appropriate to such a formation should not be abridged.

That includes nukes, by the way- pace the gasping Liberals, if such is officially recognized, right wing zealots will NOT rush out to the local gunshops to buy H-bombs. There is the matter of cost, here. Control could be legitimately applied to require that nuclear devices must be stored in such a way as to not release any radiation beyond the confines of their storage containers.

[Terabitten]

An even better explanation is found within US law: US Code Title 10, Subtitle A, Part 1, Chapter 13, para 311 defines the militia as follows:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

So, Federal law defines the militia as being the entire population of the US with a few notable exceptions. Therefore, the 2nd Amendment applies to individuals. It ain't rocket science.

[Dead Corpse]

So what do we do about all of these?

Not to mention all the crap at the State level. After all, every Law out there restricts, or infringes for those without thier dictionary handy, a protected Individual Right. Even those who would argue that a State can ignore the BoR, despite the plain wording and 10th Amendment, should be able to agree that the FedGov restrictions in the above link are blatantly un-Constitutional.

[rwfromkansas]

Well, because felons shouldn't have them. But, other than that, no restrictions.

[TERMINATTOR]

Ancient FR post on PSN and Project Exile (Inspector Harry Callahan)

"Project Disarm" in Cincinnati, OH

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For Immediate Release Monday, June 16, 2004 www.usdoj.gov	AG (202) 616-2777 TDD (202) 514-1888
THIRD ANNUAL PROJECT SAFE NEIGHBORHOODS CONFERENCE HELD IN KANSAS CITY Attorney General Ashcroft Praises Record Increases in Gun Crime Prosecutions KANSAS CITY, MO - Attorney General John Ashcroft this week brought together over 1,150 federal, state, and local prosecutors, law enforcement officials, community leaders, and other members of the Project Safe Neighborhoods (PSN) teams from across the nation to discuss efforts to reduce and prosecute gun crime. PSN is President Bush’s comprehensive initiative to combat gun crime in America by providing locally-based programs with the tools and resources they need to succeed. “Through Project Safe Neighborhood’s unprecedented partnership of state, local and federal leaders, we are turning the tide on gun crime,” said Attorney General John Ashcroft. “We are taking gun-wielding criminals off our streets. The last three years represent a record of great success, but working together, we can do even more to make our neighborhoods safe.” Federal Gun Crime Prosecutions Have Increased Significantly Every Year Under Project Safe Neighborhoods. From FY 2000 to FY 2003, federal firearms prosecutions increased by 68%. In FY 2003, the Justice Department filed over 10,500 federal firearms cases-the highest number ever recorded by the Department. The number of defendants charged with federal gun crimes rose from approximately 10,600 to over 13,000 from FY 2002 to FY 2003, a record increase of almost 23%. These figures are the highest on record in a single year since the Department began recording this information. In FY 2003, nearly all - 93% - of convicted defendants, who were originally charged with federal firearms offenses, were sentenced to some time in prison for convictions on firearms charges or other charges. 72% were sentenced to more than three years in prison, and over half of all defendants convicted were sentenced to more than five years in federal prison. State and local prosecutions have also increased. Project Safe Neighborhoods Has Contributed to Decreasing the Violent Crime Rate to Its Lowest Levels in 30 Years, But Reducing Gun Crime Remains an Important Goal. The violent crime rate is now at its lowest level since 1973, when the Justice Department’s Bureau of Justice Statistics started collecting criminal victimization data. The violent crime rate for the first two years of the Bush Administration (2001-2002) was nearly 21% lower than for 1999-2000. The per capita number of violent crimes involving firearms has dropped 14% in 2001-2002, from 1999-2000. There were approximately 64,000 fewer gun crimes and approximately 12% (almost 130,000) fewer victims of gun crime in 2001-2002, than in 1999-2000. Project Safe Neighborhoods Takes a Multifaceted Approach to Reducing Gun Crime. Gun crime reduction is President Bush’s top domestic criminal justice initiative, and the Bush Administration has devoted over $1 billion to Project Safe Neighborhoods in its first four years (FY 2001 to FY 2004). The funds have been used to hire new federal, state, and local prosecutors, provide training, hire research and community outreach support, and develop and promote effective prevention and deterrence efforts. Across America, 94 PSN task forces are working to implement a coordinated strategy to reduce gun crime. Working side by side with the state, local and federal law enforcement participants in their communities, the U.S. Attorney and his or her colleagues in each region have identified the most pressing gun crime problems and developed strategies to attack those problems through prevention, deterrence, and aggressive prosecution. Each local program is tailored to fit the unique gun crime problem in that district. The PSN conference is sponsored by the U.S. Department of Justice. To find out more about PSN and its local programs, visit the PSN website at www.psn.gov.

[Dead Corpse]

The arguement could be made that if a person has served their time that they should get their Rights restored. Partially because, if they are that dangerous why are we letting them out of jail?

More firearms in the hand of their intended victims should cut down on the number of career criminals that survive to make it to trial.

[GovernmentShrinker]

Where did I endorse "a priori restraint" on RKBA? Just because I recognize that common sense precludes an absolutely unrestricted RKBA, does not mean that I approve of background checks, registration schemes, purchases-per-month limits, or anything else that restricts the rights of law-abiding citizens. Someone who shouts "Fire!" in a crowded theater is punished AFTER doing so; no one has suggested gagging all theater-goers before they enter the theater, in order to prevent such dangerous exclamations. However, if we take preposterous positions, such as holding that a diagnosed paranoid schizophrenic cannot be prohibited from legally possessing a gun, we'll lose this very important battle.

[Dead Corpse]

If a diagnosed paranoid is that much of a danger, then commit them. Does this require legislation? "Common sense" would say no.

The Constitution states "shall not be infringed". Ie; no restrictions. Removal of Rights as punishment requires conviction, ie; due process.

[Miss Marple]

The problem is that diagnosed paranoid schizophrenics are NOT kept in hospitals. They end up signing themselves out (unless they have already committed a crime) and then refuse to take their medication. The next thing you know, they are buying weapons to kill all those people who are "after them."

We just had a policeman killed in Indianapolis , along with a couple of other pepople, because of a situation like this. The police had even taken the guy's guns once, because he was considered a danger to himself. However, in Indiana those guns couldn't legally be kept for more than 30 days unless medical proof was shown. The hospital dropped the ball, the police had to return the guns (taken in a prior disturbance) and a week later the guy was blasting his way through a neighborhood.

If you ask me, the first thing that needs to be addressed is mental health laws and why we are allowing crazy people out on the street. This applies not only to gun crimes, but homelessness, child molestation, indecent exposure, rape, and a whole host of problems caused by letting dangerous people wander around unsupervised.

[Richard-SIA]

Because if they admitted that it IS unrestricted they would have to admit the entire NFA-34 is also unconstitutional!

The fence straddling "it is, except when it's not" disappoints me beyond description.
It's just to much like Klinton's "depends on the definition of "is".

The constitution is NOT a "living document", and may be the last legal document ever to be written in plain English.

It's time to fully restore our constitution, and arrest those who commit truly criminal acts, not those who merely posses inanimate objects some socialist disapproves of.

[rwfromkansas]

Well, their right to vote is not restored, right? (Perhaps I a am wrong here and they just can't vote in prison, but it is my impression are supposed to be forever banned from voting).

If this is the case, why should their right to gun ownership be restored?

[Dead Corpse]

Note that the laws currently on the books SHOULD have stopped the scenarios yo9u mentioned. Obviously, they didn't.

So now, how will restricting everyone elses Rights solve this situation? That is how the laws are being penned. It needs to stop.

The mother of my high school sweet heart went through a similar commitment hearing to remove her gun Rights. Too much to go in to here, but current mental health Laws worked in her case. Not the gun laws currently screwing us all.

[Dead Corpse]

That was a blanket law change. Part of a omnibus crime bill. Felons can petition to have their voting Rights restored.

So, because the government did one thing wrong it is OK for them to do two things wrong? Should punishment for crimes extend beyond incarceration? Should this not be part of every penalty phase after conviction?

Seems to make more sense to me. As it is, gun grabbers are trying to get those who have only been accused, but later exhonorated of crimes, banned from firearms ownership.

[nonsporting]

the Second Amendment grants individuals nearly unrestricted access to firearms

The 2nd Amendment grants NOTHING! It simply PROHIBITS the infringment of the pre-existing RKBA of the People. It does not CONFER (bestow) RKBA as Clarence Thomas has written. Our rights are God-given, according the the DOI.

What does it do? It further clarifies (federally) the limits on Article I Section 8 Powers... The Congress (some may argue this also enjoins the States) may not infringe the People's right to keep and bear [all] ARMS (not just firearms).

Why does the 2nd mention the "well-regulated milita?" Such an institution is a necessary burdon, because although armed men as individuals may nip at the heals of a "select militia", they, in their unorganized fashion, are at a disadvantage to "secure a free state", and that's where training, standard equipment, coordination, organization come into play to produce a "well-regulated" militia.

[cyncooper]

So now, how will restricting everyone elses Rights solve this situation?

Where oh where does she advocate "everyone elses Rights" (sic) be infringed? I'm reading it as she's referring to the paranoid schizophrenic.

[GovernmentShrinker]

I'm fine with requiring a court proceeding to remove someone's right to own a gun. I just don't want to hear any wild tales that it's unconstitutional to do so even WITH a court proceeding.

[hopespringseternal]

If you ask me, the first thing that needs to be addressed is mental health laws and why we are allowing crazy people out on the street. This applies not only to gun crimes, but homelessness, child molestation, indecent exposure, rape, and a whole host of problems caused by letting dangerous people wander around unsupervised.

Bingo. If you can't be trusted with a gun, you belong in a cage. So much of gun control is about letting crazy and dangerous people wander around in the general population and trying to keep guns away from them.