Posted on 05/07/2002 5:44:52 PM PDT by JDoutrider
Tuesday, May 7, 2002 Bush Administration Backs Individual Right to Bear Arms
Reversing the four-decade-long federal interpretation of the Second Amendment, the Bush administration has told the Supreme Court that it believes the Constitution protects an individual's right to bear arms.
Lawyers for the Department of Justice said the high court need not test that principle now.
"The current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms," Solicitor General Theodore Olson wrote in two court filings this week.
That right, however, is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."
Olson, the administration's top Supreme Court lawyer, was reflecting the view of Attorney General John Ashcroft that the Second Amendment applies to private citizens, not merely to militias, the Associated Press reported today.
Ashcroft angered anti-gun-rights leftists when he expressed a similar statement in a letter to the National Rifle Association last year.
'Plain Meaning and Original Intent'
"While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.
In November, the attorney general sent a letter to federal prosecutors praising an appeals court decision that found "the Second Amendment does protect individual rights," but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."
The 5th U.S. Circuit Court of appeals went on to reject arguments from Texas physician Timothy Emerson that a 1994 federal gun law was unconstitutional. The law was intended to deny guns to people under restraining orders.
"In my view, the Emerson opinion, and the balance is strikes, generally reflect the correct understanding of the Second Amendment," Ashcroft told prosecutors.
Olson's court filing Monday urged the high court not to get involved and acknowledged the policy change in a lengthy footnote. Olson attached Ashcroft's letter to prosecutors.
In the second case, a man was convicted of owning two machine guns in violation of federal law. The government also won a lower-court decision endorsing a federal gun control law.
The cases are Emerson vs. United States, 01-8780 and Haney vs. United States, 01-8272.
Here is the text of the Second Amendment: "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."
The Supreme Court last ruled on the scope of the Second Amendment in 1939, according to AP. The amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia," the court opined then.
"This action is proof positive that the worst fears about Attorney General Ashcroft have come true – his extreme ideology on guns has now become government policy," fumed Michael D. Barnes, president of Brady Center to Prevent Gun Violence, the anti-gun-rights group associated with famous gun buyer Sarah Brady.
A poor precident has been set IMHO. One administration say's yea then IMHO the next can say nea.........a door I really don't want to open.........just paranoia on my part ? I hope so.......
I am as pro second amendment as anyone here but when a politician hand's me a rose I still look for the thorns............
Just my opinion of course, right or wrong mine............... Stay Safe 11B3 !
I can't see where the presumption of guilt until proven innocent has a place in the Bill of Rights. Private transactions are perfectly legal in most states, if I understand correctly. ( Since I am in Kalifornia, everything has to be cleared by Gray-out Davis. ) Gun shop owners should not be forced to filter their clientele.
The idea that some felons have violent criminal records with a dozen convictions is sickening. The animal that killed little Polly Klaas had been convicted of kidnapping and sexual assault. He used a knife not a gun.
If a felon gets a gun and uses it in the commision of a crime, it is a threat to kill anyone who interferes with his criminal intentions. Such a crime deserves serious and increasingly severe punishment.
Nobody every walked into a liquor store holding a gun three times by accident. The third time we should be able to assume that such a person is too dangerous to ever be free.
Repeal of GCA '68 would be good news.
Canning the Brady Bill would be good news.
Is this good news?
It has always seemed to me, that the Second Amendment is a fairly simple thing to understand. It's plain English, as it should be.
I think if the U.S Supremes were to make a ruling on any Second Amendment issue, it should be: The word "infringement" defined!
If they would just do that... We'd have news!
A well regulated school system, being necessary for a free state, the right of the people to keep and bear books shall not be infringed.
Does this mean that only those individuals "enlisted" in a "well regulated school system" are the only individuals who can "keep and bear books?"
This proves the absurdity of the "well regulated militia" argument of the gun control freaks.
The authors of the second amendment were giving one of many, if not the most important reason, for the right of the people to keep and bear arms.
It was not the one and only reason.
That's easy.
I'll tell you how this is a "bad thing," and I'm NOT a "Bush-basher" - well, not today anyway.
It goes like this, and the Brady Bunch is secretly dancing with joy:
The Justice Dept. doesn't want the Emerson case or similar ones going to the SCOTUS because they KNOW they'd lose - and then all the 20,000 laws, little and big, that have nibbled away at the Second Amendment for the past 150 years would be declared un-Constitutional!
There'd be no laws against open or concealed carry, no laws against owning a machine gun in Michigan, etc.
About the only laws that might survive would be those against criminals and minors possessing guns.
Or should that have been "minors and other criminals"?
So this decision is the best outcome the Brady Bunch could have hoped for in the Emerson case, which was an especially serious example of a law that simply violates the Second Amendment, and would not have stood up under the scrutiny of scholars like Clarence Thomas.
"Solicitor General Olson urged the Supreme Court to turn down both appeals. He said that even accepting an individual right to bear arms, the application of the laws at issue in both cases reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited. Consequently, there was no warrant for the court to take either case, the briefs said."
With all due respect to Mr. Olson, he is dead wrong on the issue and this "policy shift" is merely an attempt to deflect criticism from their position that the SCOTUS should not hear the Emerson appeal.
Having read both opinions and the brief filed to SCOTUS, the larger issue is the standard of review employed by the 5th Circuit. They went out of their way to demonstrate why the Second Amendment is a fundamental individual right - and then analyzed the offending statute using a rational basis standard. That is the wrong standard of review for a fundamental individual right. The correct standard is strict scrutiny - and 90% of the current laws will not pass that type of review.
Further, the statute makes it a crime to posess or transfer a firearm once you are subject to a protective order - the only way not to violate the statute is to divest yourself of all firearms prior to the order being issued. That means you can be summarily deprived of an individual right and subject to incarceration without due process because if you don't divest prior to a hearing and the order is issued you cannot take any action without committing a crime. (Unless you are willing to not return to your domocile until after the order expires)
Mr. Olsen is dead wrong - the appeal should be heard and the government's position on the law (unless they admit it is unconstitutional) is dead wrong.
posted on 5/7/02 2:36 PM Pacific by Abundy
Since when did my "rights" end at an airport metal detector?
I'd love to see some leadership on overturning the existing
unconstitutional gun laws, and amnesty for those convicted
of non-violent (CCW) gun crimes.
The only reason should be if the owner or manager (pilot) of that private property says you can't.
It isn't any of the governments business.
READ MY LIPS HERE:
FIRE MARIONETTA AND LET THE PILOTS CARRY WEAPONS!
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