Posted on 05/08/2002 11:57:58 AM PDT by Patriotman
White House reverses stand on right to bear arms
Associated Press
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."
They haven't. You can still keep guns. When California formally bans gun ownership THEN they have violated the US Constitution.
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.
And, -- what little remains of any 'conservative' credibility you have ever had at FR.
Now how are you going to do that being "un-armed" and all?
Not smarter, just more honest...you would be well advised to fear their motives...
Ahh, I see. however, its too late the Feds have already triangulated your IP. I'll turn on the TV this should be good.
If a restraining order does not infringe upon the target's rights, it may be issued without need for due process of law. This is quite reasonable. Let me give a simple example.
Suppose I am bothered every evening my supper is interrupted by a certain person who comes to my door. I have no reason to believe that this person has committed or intends to commit any crime, but nonetheless I find him annoying. Unless this person has some legitimate legally-established right to walk up to my door (e.g. if he was renting a room from me and had a lease) I would have the right to seek a restraining order against him. I would not have to prove or even allege any crime or fear of a crime. The mere fact that I found his presence annoying would suffice.
The reason such a restraining order may be so freely issued is that it does not infringe upon the target's rights. My front walk is my own property, and I would have the right to forbid just about anyone from setting foot there. What service of the restraining order does is put the recipient legally on notice that he may not set foot on my property--even the parts generally open to the public--and that if he does so it may be regarded as criminal trespassing.
Domestic violence restraining orders are a little different, but when the recipient's rights are not affected they may also be issued freely. The most important effect of the restraining order is to put the recipient on notice that there is no legitimate reason for him to be on the petitioner's property; as a consequence of this, any presence on said property constitutes prima facie evidence of hostile intent. This is most significant if the petitioner is armed, since it will greatly bolster any self-defense case.
Unfortunately, Mr. Lautenberg decided to totally disrupt the proper function of restraining orders by making them abridge the recipient's rights. This makes it much harder for courts to issue restraining orders on the basis of suspicions in the part of the petitioner--suspicions which may be well-founded. Of course, in case of mutual restraining orders, the Lautenberg Act ensures that the woman will be unarmed if the man attacks her, so it actually makes restraining orders worth less than they would be without it.
Do you have any idea how many of the existing militia only gun laws based on this opinion by Olsen are NOW open to challenge? Emerson is NOT even a 2nd amendment test case. The administration has given notice to the courts of its future position of laws that were passed using "Militia only" as their basis that will come before it. For crying out loud use some common sense. This action is the most significant since 1939.
Yea, yea.
I see over 200 comments by FR types that only shoot their mouths off while they sit on their butts in front of the computer.
Why not organize and/or get out to your state's Bill of Rights rally this May 25. see www.stanley2002.org for more info.
OK...we will see...
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