EMERSON & THE SECOND AMENDMENT

Quite a number of us have been following the U.S. v. Emerson case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the original intent of all of the Founding Fathers when they approved the Constitution and later the Bill of Rights.

Alas, although the Fifth Circuit Court of Appeals agreed with the lower court that the Second Amendment protects an individual right of the people to keep and bear arms, they reversed that part of the lower court's decision which benefited Emerson.(1) So, Emerson appealed to the U.S. Supreme Court. The Supreme Court is now considering if it will hear the case.

Lawyers speak to the Court through their briefs and last May 6 was the deadline for filing them. In a nutshell, attorneys for Emerson are petitioning the Court to hear the case. Attorneys representing the federal government do not want the Court to hear it.

Last year, in a letter to National Rifle Association, Attorney General John Ashcroft said that the Second Amendment confers the right to "keep and bear arms" to private citizens, and not just to the "well-regulated militia" mentioned in the Amendment's preamble. "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.

It would be kind of hard to support our Constitution and the intent of the Founding Fathers without agreeing with that. So, Ashcroft's letter got a lot of hopes up around the country. But "saying" it and actually enforcing it are two different things. So, we waited. Meanwhile, people were still being arrested around the country for unconstitutional and archaic gun laws.

Finally, last week, the Attorney General, via two U.S. Supreme Court briefs filed by Solicitor General Theodore B. Olson, tied actions to his words. Sort of, anyway.

As Linda Greenhouse reported in The New York Times May 7: "The Justice Department, reversing decades of official government policy on the meaning of the Second Amendment, told the Supreme Court for the first time late Monday that the Constitution 'broadly protects the rights of individuals' to own firearms.

"The position, expressed in a footnote in each of two briefs filed by Solicitor General Theodore B. Olson, incorporated the view that Attorney General John Ashcroft expressed a year ago in a letter to the National Rifle Association. Mr. Ashcroft said that in contrast to the view that the amendment protected only a collective right of the states to organize and maintain militias, he 'unequivocally' believed that 'the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.'"

Linda Greenhouse was exactly correct. That is what was filed in both Emerson and another case. Unfortunately, "unequivocally" is not exactly what Ashcroft or Olsen intended. Unequivocal would mean that they support the words "shall not be infringed" in the Second Amendment with "no doubt or misunderstanding" and the meaning is "clear and unambiguous."

The words "shall not be infringed" are unequivocal to many of us. "Shall not" is rather clear and needs no explanation to anyone outside of a government office. However, public officials want tight control over the people. Therefore, the Justice Department does not think of our right to keep and bear arms as a "right." Rather, to them it is an inconvenient "privilege" that must be strictly regulated by capricious bureaucrats.

Justice does not want Emerson to be heard by the Supreme Court simply because they know the Court is going to take a very dim view of many gun laws and may wipe our hundreds in one opinion. One only need read Justice Thomas's opinion concurring with the majority in the 1995 U.S. v. Lopez(2) case for a hint. We are sure the Justice Department knows Lopez quite well. Congress tried to regulate guns via the Commerce Clause. But, the Supreme Court did not buy it.

Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."

With that in mind, let's examine some of the Solicitor General's argument filed in Emerson:

"In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, 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, 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."

That's ten steps in the correct direction, to be sure. But, it most certainly is not "unequivocal" support of the Second Amendment. The Amendment clearly says "shall not." That is greatly different than restricting "possession of types of firearms" as the government wants to continue.

So, saying that the Emerson Appeals Court decision reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited, the Solicitor General requested the Supreme Court to turn down the appeal.

If the government keeps control over our "right" to keep and bear arms, that right, then, becomes degraded to but a privilege.

It was the intent of the Founding Fathers that the American people shall have the unequivocal right to keep and bear arms and that government "shall not" interfere with that right. That intent was for personal arms one may "bear." Not cannon, howitzers, Apache helicopters, or tanks. Small arms only. Therefore, for small arms made to carry, there should be no restriction by government whatsoever.

To do otherwise is to violate the Constitution, as written. Because, restrictions would violate what Ashcroft called "the amendment's plain meaning and original intent" of the Founding Fathers. What the words "shall not" mean is that the right to keep and bear arms is an absolute right that government may not violate for any reason. As inconvenient as that may seem to our socialist tainted minds nowadays, that was the intent.

The Justice Department wants to have it both ways. That is why we expect the Supreme Court to seriously consider hearing Emerson -- and we hope they do.

"with the SOLE proscription that it be safely stored and responsibly used..."

Let me explain why I draw the line at individual versus crew served weapons. In general, I agree with your proposition for safe storage and responsible use. Now how does one safely store a howitzer and it's ammunition? How does one demonstrate that they can responsibly use the howitzer? Who does one demonstrate these things too?

There is a fine line here. I don't want to get into a situation where one has to demonstrate safe storage and responsible usage for all firearms/weaponry. But I do believe that there is a point where the destructive capability of the weapon makes such a demonstration necessary. I think you might agree since you also draw a line at WMD. I want to avoid the situation where a citizen has to demonstrate safe storage and reasonable useage for all weaponry. I draw the line at individual weapons such as pistols, rifles, and shotguns since I believe one can reasonably assume that an individual can acquire the knowledge for safe storage and usage without government certification.

I'm not saying that the ownership of crew served weapons should be outlawed. I am saying that there might not be a right to own these things. You see, I believe that if there is a right, then the exercise of the right should not be subject to government approval. I can see a logical distinction between the right to individual weapons and a need for approval for crew served weapons. I also see that this might be consistent with an individual rights interpretation of the second amendment.

"Just show the seller that you know how to use properly and store safely."

That could be done rather easily for an M-16. Now, how are you going to do that for a 155MM howitzer? And, there is the small thing about having a suitable range for demonstrating proficiency. Shifting the burden of certification from the government to the seller doesn't really address any of these things. There still must be a certification standard that ensures safe storage and operation. Considering the damage one can do with your own howitzer, I would suggest it should be rather high. Also, a howitzer requires a crew and that means crew drill. It's an awful lot more than just cramming a round in the breech and yanking the landyard. Things like setting powder charges, what to do if there's a hang-fire, laying the piece, etc.

I will admit that machine guns, M-60 size or less, seem to fall into a debatable grey area. M-16s and other full auto individual weapons fall on one side of that area and I see no restriction for individual ownership. You get much above a M-60 and I begin to believe that one should proceed with utmost caution in advocating individual ownership without restriction.

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