Skip to comments.White House reverses [decades old] stand on right to bear arms
Posted on 05/08/2002 11:57:58 AM PDT by Patriotman
White House reverses stand on right to bear arms
Washington Reversing decades of Justice Department policy, the Bush administration has told the Supreme Court that it believes the Constitution protects an individual's right to possess firearms.
At the same time, the administration's top Supreme Court lawyer said the case need not test that principle now.
The administration's view represents a reversal of government interpretations of the Second Amendment going back some 40 years.
"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."
Mr. Olson, the administration's top Supreme Court lawyer, was reflecting the view of Attorney-General John Ashcroft that the Second Amendment confers the right to "keep and bear arms" to private citizens and not merely to the "well-regulated militia" mentioned in the amendment's text.
Mr. Ashcroft caused a stir when he expressed a similar sentiment a year ago in a letter to the National Rifle Association.
"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," Mr. Ashcroft wrote.
Critics accused him of kowtowing to the gun lobby and of undermining federal prosecutors by endorsing a legal view 180 degrees away from what has been official Justice Department policy through four Democratic and five Republican administrations.
At the time that Mr. Ashcroft wrote the letter, it was unclear whether he was expressing his personal view or stating a new policy position for the government. That question was mostly answered last November, when he sent a letter to federal prosecutors praising an appellate court's decision that found "the Second Amendment does protect individual rights" but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."
That opinion by 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 judicial restraining orders.
"In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment," Mr. Ashcroft told prosecutors.
Mr. Emerson appealed to the Supreme Court, putting the Justice Department in an awkward position. Although the government won its case in the lower court using the old interpretation of the Second Amendment, Mr. Ashcroft had switched gears by the time the case reached the high court.
Mr. Olson's court filing on Monday urged the Supreme Court not to get involved and acknowledged the policy change in a lengthy footnote. Mr. Olson also attached Mr. Ashcroft's letter to prosecutors.
Mr. Olson made the same notation in a separate case involving a man convicted of owning two machine guns in violation of federal law. In that case, the government also won a lower-court decision endorsing a federal gun-control law.
The Justice Department issued a statement Tuesday night saying its latest comments reflect the Attorney-General's position in the November letter to prosecutors.
"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," said Michael Barnes, president of the Brady Center to Prevent Gun Violence, which promotes gun control.
Mr. Barnes noted that other federal appeals courts and the Supreme Court have not found the same protection for individual gun ownership that the 5th Circuit asserted in the Emerson case.
The Supreme Court last ruled on the scope of the Second Amendment in 1939, when it said the clause protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."
Now let's just hope Bush can go the rest of the year without doing more stupid liberal sh!t than he's already done.
Well, confound it, I'm totally against that! Imagine if your Uncle George or Cousin Ned or some other friend or relative is mindin' their business, and because some know-nuthin' type from Washington says it's all right to arm bears, they get shot! Why I'll send one o'them armed bears right to Washington, and see how they like them apples...
Huh? Bear arms? Not arm bears?
What a relief, it's only the same leftist bleat about the White House "reversing decades of policy" by insisting that the Second Amendment means the same thing today as when it was written.
Yeah, that's what the "shall not be infringed" part means... you have to, like, read between the lines, and stuff.
In its ruling, the appeals court included a lengthy discussion of the Second Amendment, concluding that the amendment "protects the rights of individuals, including those not actively a member of any militia . . . to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons." It was this view that Olson's briefs explicitly endorsed.
But the appeals court also ruled that the Second Amendment is subject to "limited, narrowly tailored specific exceptions or restrictions . . . that are reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms as historically understood in this country." It said the prohibition on gun ownership by someone subject to a domestic violence restraining order was such a reasonable exception, a view that Olson also endorsed in urging that the Supreme Court not to review the case.
That must have hurt Rusho.
Notice that the attorney for the US Government told the USSC 'Hey, no need to rush to judgement. Never mind that we changed our opinion. These aren't the droids you're looking for...'.
I'd rather hear the United State's Supreme Court's opinion on the Second Amendment rather than John Ashcroft's, thank you very much.
You hit right on the head. Why, however, does the Bush Administration not want the US SC to review the Emerson decision? Is it because they (as well as the whole damn US Senate) know that the court might actually have to address the "meaning" of "...shall not be infringed."?
What bothers me is that while they say, "yes, there is an individual right to arms", they also want to maintain, on the books, every rotten unconstitutional infringment of the second amendment ever legislated into place on both state and federal level. They know damn well that if the correct interpretation of "shall not be infringed" was arrived at by the SC, then 99% of these laws would be rendered null and void. What I want to see from Pres. Bush on the RKBA issue is a firm statement that the 1994 federal assault weapons ban is unconstitutional and will therefore not be enforced until it sunsets in 2004.
Wouldn't a test help the cause better?
Why this choice?
To the leftists, black is white and right is wrong. They are insane. Ashcroft's view is obviously a moderate one.
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