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."
I could have told them that 50 years ago.
At the longest, it will last until the next Attorney General of the US rescinds the policy or until the current Attorney General changes his mind.
At the briefest, it will last until the next US citizen is prosecuted by the US Justice Department for non-violent firearm-related crimes -- namely, sometime this afternoon.
This 'change in position' by Ashcroft that we're all supposed to be celebrating to the heavens means absolutely nothing.
Unfortunately the effect is to take a case which was on its way to the SC and, correctly ruled, would have overturned many unConstitutional laws, and derail it. Or, the effect of a pro-2nd official stance is that anti-2nd laws shall remain in effect; and later, if an anti-2nd administration gets in, the structure of bad law will remain on which more bad law can be built.
The Administration (an ethical one, anyway) is not entitled not to enforce the law; that duty is only removed if the law is removed. Only the SC (effectively; since lower rulings are appealed) or the Congress can remove these bad laws, and we certainly know that Congress is not going to help us here. Even if we get some repeals through the House there is no glimmer of hope from the Senate.
Wish I was more optimistic; I hope only that the SC will choose to hear the case anyway and that since both sides (Emerson and the administration) agree now that the ruling would then be overwhelming and decisive.
;o)
Thanks for the smile!
Hmmmmmm.
Fully automatic firearms are particularly suited to criminal misuse
Semi-automatic firearms are particularly suited to criminal misuse
Rifles are particularly suited to criminal misuse
Shotguns are particularly suited to criminal misuse
Pistols are particularly suited to criminal misuse
Revolvers are particularly suited to criminal misuse
BB guns are particularly suited to criminal misuse
Spud guns are particularly suited to criminal misuse
Slingshots are particularly suited to criminal misuse
Who defines who is "unfit" ? The ATF? What a load of crap. Gun owners are so desperate that this non-statement is probably looked at as "good news." Sigh.
This is akin to a government official in 1905 saying the Indians got a raw deal. Wake me up when a single piece of federal anti-gun law goes away or isn't replaced with something worse.
Tonk, thanks for the ping. I really appreciate it.
Yeah, that war on terrorism, green light for Israel, tax cut, non-compliance with Kyoto, cessation of funding for foreign abortions, and his fund-raising efforts for a future Republican Senate are worthless. ;-)
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