Bush Justice Dept's View on Gun Rights is on Target

Columbus Dispatch ^ | 5-18-2002 | David N. Mayer

[smith288]

Bush Justice Department's stand on gun rights is on target

Saturday, May 18, 2002

Contrary to the assertions of the Tuesday Dispatch editorial "The NRA way,'' Attorney General John Ashcroft and the U.S. Justice Department are not engaged in a radical "reinterpretation'' of the Second Amendment by endorsing the view that the right to keep and bear arms belongs to "the people'' individually and not to the states.

The individual-rights view of the Second Amendment is not peculiar to the National Rifle Association, as the editorial suggested. Rather, it is the correct view, the view held by virtually all constitutional scholars throughout American history.

The two leading constitutional-law commentators of the 19th century, Supreme Court Justice Joseph Story in the early 1800s and Michigan Supreme Court Justice Thomas Cooley in the late 1800s, both took the view that the right belongs to the citizens, not the states.

Indeed, they understood that the text of the Second Amendment means exactly what it says: "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 right belongs to the people; it is as individual a right as the Fourth Amendment "right of the people to be secure . . . against unreasonable searches and seizures'' or the First Amendment "right of the people peaceably to assemble, and to petition the government for a redress of grievances.''

The reference to the militia only reaffirms the individual-rights view, as UCLA law professor Eugene Volokh has noted in the May 10 Wall Street Journal column "The Radical Amendment'': "From the Militia Act of 1792 to the current Militia Act (enacted in 1956), the 'militia' has meant pretty much the adult able-bodied male citizenry age 17 to 45. After the Supreme Court's sex equality decisions of the 1970s, it almost certainly includes women, too.

"The two clauses (of the Second Amendment) both stress the Framers' commitment to keeping the citizenry -- not the states or small state-selected groups -- armed.''

A virtual consensus of constitutional historians and legal scholars today -- including not only conservatives, but also such left- liberals as Harvard law professor Laurence Tribe and libertarians, such as Boston University law professor Randy Barnett -- agree that the individual-rights view, not the states'-rights view, is the correct interpretation of the Second Amendment.

The aberration is not the Bush Justice Department but rather the U.S. Supreme Court, which in its 1939 decision in United States vs. Miller held that the Second Amendment right extends only to arms that are related to the militia.

In following the states'-right view suggested by the Miller decision, federal courts over the past 60 years have perpetuated an erroneous interpretation of the Constitution from an era in which the U.S. Supreme Court was notoriously insensitive to individual rights. (The infamous Korematsu decision, upholding the Roosevelt administration's order confining Japanese Americans to concentration camps, came just a few years after Miller.)

The Bush Justice Department may be going against the views of past Justice Departments and of most federal courts of appeals, which have endorsed the states'-rights view of the Second Amendment. But as Volokh noted, "Attorney General Ashcroft and Solicitor General Olson are hardly promoting their personal views. They're promoting the views of the Framers, and of the American legal system throughout most of American history.''

David N. Mayer

Professor of law and history

Capital University Law School

Columbus

[smith288]

Its pretty sad there has to be pleads that the Justice Dept's view on gun rights is INDEED constituional.

[smith288]

bttt

[45Auto]

Yes, its sad, but the separation of powers built into the Constitutional construction of the Republic began to unravel almost before the ink was dry on the document. Certainly over the last century the politicization of the courts has been nearly total. Why else would we see the Senate demonRAT-run judicial committee hold up nearly every moderate-to-conservative appointment made by Pres. Bush? Because the rotten miscreants who are currently 'in charge' of the Senate want to make sure that the leftwing judges whom they have put on the bench over the last 8 years remain there. They put one over on the country with the Warren Court, and they have no intention of seeing their precious little abortion-on-demand "right" modified in any way. Yet, the RKBA, the strongest, most clearly worded amendment in the Constitution, has nearly fallen to artful twisting of the language by extremely biased judges. No, the demonRATS surely have no "limus test" for judicial appointments.

[Buckeroo]

Good post.

[Uncle Bill]

Clinton raped Juanita Broaddrick, not once, but twice

George Will: Clinton is a rapist

HILLARY CLINTON IS CO-RAPIST

"That’s why I’m for instant background checks at gun shows. I’m for trigger locks."
George W. Bush - Source: St. Louis debate Oct 17, 2000.

[Beelzebubba]

Bang