Bush Lawyers Target Gun Control's Legal Rationale

Readying for a constitutional showdown over gun control, the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms.

The memorandum, requested by Attorney General John Ashcroft, was completed in August but made public only last month, when the Justice Department's Office of Legal Counsel posted on its Web site several opinions1 setting forth positions on various legal issues. Reaching deep into English legal history and the practice of the British colonies prior to the American Revolution, the memorandum represents the administration's latest legal salvo to overturn judicial interpretations that have prevailed since the Supreme Court last spoke on the Second Amendment, in 1939. Although scholars long have noted the ambiguity of the 27-word amendment, courts generally have interpreted the right to "keep and bear arms" as applying not to individuals but rather to the "well-regulated militia" maintained by each state.

Reversing previous Justice Department policy, Mr. Ashcroft has declared that the Second Amendment confers a broad right of gun ownership, comparable with the First Amendment's grant of freedom of speech and religion. In November 2001, he sent federal prosecutors a memorandum endorsing a rare federal-court opinion, issued the previous month by the Fifth U.S. Circuit Court of Appeals in New Orleans, that found an individual has the right to gun ownership. President Bush adopted that view as well, saying that "the Constitution gives people a personal right to bear arms," and doesn't merely protect "the rights of state militias," in an interview published days before last year's election in National Rifle Association magazines.

The new Justice Department memorandum acknowledges that "the question of who possess the right secured by the Second Amendment remains open and unsettled in the courts and among scholars," but goes on to declare that...

…the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms.

The US Bill of Rights does confere broad ownership rights for "arms." [Emphasis added, and I don't care about the typo]

Uh, the 2nd and the other individual rights mentioned in the BOR are not granted or conferred, they are protected against government infringement. We should not fall into that rhetorical trap, as doing so sets us up for an infringement of those rights if/when some portions of the BOR are ever repealed.

Even the 1939 Miller decision (that most anti's cite) only stated that a sawed off shotgun was not weapon commonly used by the military and therefore was not a militia weapon.

However, it's interesting to note that the marines used sawed-off shotguns in the south pacific during WWII as banzai stoppers.

The Miller decision merely stated words to the effect that there was “no judicial notice that a short-barreled shotgun was suitable for militia use.” This means that no one (i.e. Miller’s attorney) brought this to the attention of the Supremes, and that the matter didn’t come up at the trial (District Court) level. Had Miller actually been represented at the Supreme Court level, then surely the Justices would have been informed that the Army and Marines both had used short-barreled shotguns to great effect in World War I. They were called “trench brooms” for a good reason – they swept the trenches clean of (living) enemy troops. Oh, BTW, the reason that Miller went unrepresented is that he was dead. He was truly a scumbag, and probably got killed by someone that he double-crossed or competed with in selling moonshine.

Read the part of the memo relating to Miller, and consider the obvious unasked question: "if a sawed off shotgun isn't related to military use and thus may be restricted under the NFA of 1934, WHAT ABOUT MACHINE GUNS!!!!?"

No kidding. If the Miller case was to be heard now, and Miller was represented, then we’d each be able to own full-auto M-16s, M-4s, M-14s, and any other full auto guns used by individual soldiers or federal law enforcement officers (i.e. MP-5s, Tommy Guns, etc.)…and there’d be no $200 tax stamp allowed, no registration of ANY gun of ANY kind, and certainly no permits to own or permission required from any police department. The whole scheme (and I use this in the worst sense of the word) of federal gun control would fall apart and be rendered invalid; for that matter, under the same reasoning that the 14th Amendment applies other BOR guarantees to individuals at the state and local level, a proper ruling on the 2nd and the 14th would invalidate just about all state and local laws and regulations. I think that this is EXACTLY why the Supremes keep twisting and turning every which way they can to avoid taking on a direct 2nd Amendment case – because they know that they’ll turn this country upside down by doing what they almost have to do under the plain words of the Constitution and the long-settled principle of stare decisis (i.e. old decisions must be followed in almost all cases – which would lead the Court of 2005 to have to apply the Miller test of militia usefulness to an M-16, for example).

I want to see the barrel of an M60 sticking out of my cupola, Mr. Attorney General. If your memorandum doesn't do that, it hasn't gone far enough.

I’d just like to be able to buy a newly manufactured Colt Monitor, as well as a newly manufactured Thompson sub-machine gun with bad-ass 50-round drum mags (or 6) – both for somewhere in the $500-$1,000 range, about what they cost to manufacture, plus a reasonable profit for the manufacturer, wholesaler and local convenience store that will stock racks of them and other interesting merchandise.

It's restricted in the same reasonable ways that other Bill of Rights rights are restricted. The First doesn't give you the right to shout "Fire!" in a crowded theater, or barge into a public school (funded with federal and state money) classroom and drown out the teacher with your rant on your pet issue. Writings by the framers of the 2A made clear that they did not intend that insane people or habitual felons should have an unfettered right to keep and bear arms (of course, back then "felon" didn't mean someone who still had a firearm for which your registration/license had expired), and common sense holds that we should be able to take guns away from people who are actively threatening to use them to commit crimes.

Uh, again, the 2nd and the rest of the BOR grant nothing, they merely affirm basic, Natural Law rights and protect them against governmental infringement. We have the right to keep and bear arms no matter what any government says, just as we have the inalienable right to worship the diety of our choice (or none, if that’s our choice), notwithstanding any law that might be passed. The rights protected by the BOR are so basic that even if 99% of the people didn’t like them, they’d still exist (though they would very obviously be infringed upon by legislators eager to buy votes at the expense of individual rights).

As to shouting “Fire!” in a crowded theater, we all most certainly DO have the right to do that. However, if there is, in fact, no fire, and if someone gets hurt because of what you yelled, then you’d be responsible to pay in some way (either criminally or civilly, or both) for what you did. What you propose (or seem to, anyway) is prior restraint laws – which are unconstitutional as far as free speech is concerned. You can’t pass a law that forbids an ordinary activity or the ownership of something because it MIGHT harm someone – you can only punish actual bad acts. I agree that we don’t want insane people or violent felons to have guns, but you can’t just pass a law stating that everyone who wants to buy a gun is insane, or that anyone who urinates more than once per week is a felon, and thereby deny everyone the right to keep and bear arms. Of course, if someone’s paid their debt to society, and society feels that they are not such a risk to others by releasing them from prison, then I think that their rights should be fully restored – but that’s another issue.

This is what I mean when I say "Second Amendment". [Picture of self-propelled artillery in Post #5]

You know, that isn’t so ridiculous. What do folks think that “Letters of Marque and Reprisal” (U.S. Constitution, Article I, Section 8) refer to? This clause refers to a Congressional grant of the right of anyone named therein to be a pirate on behalf of the USA (otherwise known as a privateer). We used privateers a bunch in the War of 1812, and Congress actually followed the law back then by issuing the Letters. OK, so HOW, EXACTLY could someone have been a privateer without having their own (rather large) ship armed with (numerous and effective) cannon? As applied to the modern era, if Bill Gates wanted to buy and outfit a carrier task force, then that would be fine under the 2nd Amendment – and would qualify him nicely to go into action against the Red Chinese in a few years when we’ll almost certainly be fighting them – provided that he gets that Letter of Marque and Reprisal from Congress. Until then, Bill would have to content himself with fishing of the bow of an aircraft carrier and joyriding F/A-18s in the middle of the ocean. Similarly, if more ordinary citizens want to spring for a few thousand or tens of thousands of dollars, why shouldn't we be able to own 20mm, 30mm, 40mm, 105mm, etc. cannon? Using them might present a problem (what with noise regulations and the possibility of harming others in cities and suburbs), but the right to such ownership EXISTS.

Think about how difficult it would be for a tyrant to really get a foothold in this country if he had to worry about 25 or 30 million men (and women) at arms to depose him. Militia meant "citizen men at arms". Well regulated meant equipped and capable. Look in any old dictionary.

An old dictionary isn’t necessary – look at Federalist #46 by James Madison available in most any library and bookstore, and probably online somewhere. It develops that concept quite well, speaking of a militia of 500,000 to protect the Republic at a time when the entire population was approximately 3.5 million. This utterly PROVES what the 2nd Amendment is designed to protect – it ain’t about hunting bambi.

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