Bush Lawyers Target Gun Control's Legal Rationale

THE WALL STREET JOURNAL ^ | January 7, 2005 | JESS BRAVIN

[neverdem]

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...

[jonestown]

No one in our early Republic would have questioned a law regulating how much black power could be stored in a heavily populated area, just as no one does today.
-- Thus, its just common sense that we the people have the power to regulate 'walking around' with the equivalent of a million pounds of black powder in a suitcase nuke.

BTW, -- why are you lecturing to me about our RKBA's?
Do you really think I'm advocating some sort of infringements on that right?

The "lecture" was to point out that you were failing to recognize that the burden of justifying any infringement is on the government. The Second Amendment offers no latitude for such infringements.

You're dreaming that I've "failed to recognize" anything of that sort. You have no basis in fact for that comment.

Whether nuclear weapons SHOULD be outlawed for civilian possession is not relevant. Few argue that they are not "arms".

Nit picking the issue is even less relevant. Few would argue that nukes are weapons suitable for protection from regulation under our 2nd Amendment.

You don't have to overtly support infringements of the right to keep and bear arms to be part of the problem. It is sufficient to suggest that the courts should decide which arms are protected without Constitutional authority to do so.

I'm part of no 'problem', -- except the one you're imagining.

You have suggested that smallpox cultures or poison might be suitable for prohibition because they are not "arms".

We have a multitude of laws protecting our health & safety. My point is, -- we have no need to tie C-N-B weapons to our RKBA's in order to regulate them. Ordinary common law will do the job.

In 1939 the Supreme Court failed to protect a defendant from a criminal charge for possessing a short-barreled shotgun because it may not be "suitable". In both cases, there is a presumption that the government can outlaw "stuff" without proving that such stuff do not constitute "arms". I challenged you to disagree, and if you disagree, to suggest a new Amendment clarifying the protection of the Second Amendment.

And I told you to stop making absurd arguments. -- No new amendment is needed to regulate C-N-B weapons. Ordinary health & safety regs will suffice.

The key point I would make is that criminalizing possession independent of an otherwise criminal act is prior restraint and should not be tolerated. It infringes the rights of the law-abiding and barely inconveniences the criminals.

And my key point is that you are lecturing to the wrong man.
I agree that criminalizing possession of arms independent of an otherwise criminal act is prior restraint and should not be tolerated. It infringes the rights of the law-abiding and barely inconveniences the criminals.

Rational regulations on the possession of C-N-B weapons [weapons of mass destruction] are a function of common sense, -- even though they barely inconvenience criminals.
Constitutional laws are only needed as the scaffold to prosecute the criminal, once caught. -- Get it?

[supercat]

My reading of their decision is consistent with the idea that the lower court which ruled that the Second Amendment protected the defendant should offer the prosecution the opportunity to continue with their case, but that the PROSECUTION would have to prove that the shotgun is NOT suitable.

I've not read the briefs in Miller, but I would expect the prosecution would have made a prima facie case that sawed-off shotguns weren't "militia" weapons. If not, they certainly could have done so easily. The burden would then have been on Miller/Layton to rip that prima facie case to shreds, which they too could have done easily.

[William Tell]

supercat said: "I've not read the briefs in Miller, but I would expect the prosecution would have made a prima facie case that sawed-off shotguns weren't "militia" weapons. "

I don't think that the lower court would be required to accept a light burden of proof. Unlike the Miller Court, the lower court made the right decision to begin with. Even with an invented "suitability" test, I could imagine the lower court dismissing again for lack of evidence. What evidence would convince such a lower court? The need for close quarters with a sawed-off shotgun is no more limiting than that needed for use of a bayonet.

[William Tell]

jonestown said: "Rational regulations on the possession of C-N-B weapons [weapons of mass destruction] are a function of common sense, -- even though they barely inconvenience criminals. "

Your reasoning is identical to that used by anti-gunners to outlaw machine guns, is it not? After all, what "civilian" needs a machine gun?

You didn't respond to whether you would use smallpox to defeat an invading, occupying UN force on US soil.

You didn't respond to whether you would use poison as a weapon to prevent the death of your family.

You didn't explain whether so-called "tactical" nuclear weapons can be prohibited and just exactly why? The yield of some is on the order of the largest non-nuclear weapons, I believe. What is magical about a fireball created with TNT versus a fireball created with fissionable uranium?

Despite your claim that some weapons are just too terrible, that was not considered a problem by our Founders, it is of relatively recent concern historically, and to top it off, our nation is the only one on earth to have used a nuclear weapon in time of war.

Weapons restrictions during time of war are a tool used by the side which believes that it will be victorious without them and are only recognized by enemies who fear that they will not be victorious with them.

[Homer_J_Simpson]

Our troops used shotguns in World War I.

When I was a corpsman in the Navy (circa 1970-71) I heard a second-hand account of a corpsman with the Marines who walked point when on patrol with his unit. His weapon of choice was a 10 ga. shotgun.

[jonestown]

No one in our early Republic would have questioned a law regulating how much black power could be stored in a heavily populated area, just as no one does today.

-- Thus, its just common sense that we the people have the power to regulate 'walking around' with the equivalent of a million pounds of black powder in a suitcase nuke.

BTW, -- why are you lecturing to me about our RKBA's?

Do you really think I'm advocating some sort of infringements on that right?

The "lecture" was to point out that you were failing to recognize that the burden of justifying any infringement is on the government. The Second Amendment offers no latitude for such infringements.

You're dreaming that I've "failed to recognize" anything of that sort. You have no basis in fact for that comment.

Whether nuclear weapons SHOULD be outlawed for civilian possession is not relevant. Few argue that they are not "arms".

Nit picking the issue is even less relevant. Few would argue that nukes are weapons suitable for protection from regulation under our 2nd Amendment.

You don't have to overtly support infringements of the right to keep and bear arms to be part of the problem. It is sufficient to suggest that the courts should decide which arms are protected without Constitutional authority to do so.

I'm part of no 'problem', -- except the one you're imagining.

You have suggested that smallpox cultures or poison might be suitable for prohibition because they are not "arms".

We have a multitude of laws protecting our health & safety. My point is, -- we have no need to tie C-N-B weapons to our RKBA's in order to regulate them. Ordinary common law will do the job.

In 1939 the Supreme Court failed to protect a defendant from a criminal charge for possessing a short-barreled shotgun because it may not be "suitable". In both cases, there is a presumption that the government can outlaw "stuff" without proving that such stuff do not constitute "arms". I challenged you to disagree, and if you disagree, to suggest a new Amendment clarifying the protection of the Second Amendment.

And I told you to stop making absurd arguments. -- No new amendment is needed to regulate C-N-B weapons. Ordinary health & safety regs will suffice.

The key point I would make is that criminalizing possession independent of an otherwise criminal act is prior restraint and should not be tolerated. It infringes the rights of the law-abiding and barely inconveniences the criminals.

And my key point is that you are lecturing to the wrong man.
I agree that criminalizing possession of arms independent of an otherwise criminal act is prior restraint and should not be tolerated. It infringes the rights of the law-abiding and barely inconveniences the criminals.
Rational regulations on the possession of C-N-B weapons [weapons of mass destruction] are a function of common sense, -- even though they barely inconvenience criminals.

Your reasoning is identical to that used by anti-gunners to outlaw machine guns, is it not?

No, its not. Machine guns are just faster at pumping out bullets.

After all, what "civilian" needs a machine gun?

At times, we all do.

Constitutional laws are only needed as the scaffold to prosecute the criminal, once caught. -- Get it?

You didn't respond to whether you would use smallpox to defeat an invading, occupying UN force on US soil. You didn't respond to whether you would use poison as a weapon to prevent the death of your family.

Yes I did respond, to both. I told you to stop making absurd arguments. -- No new amendment is needed to regulate C-N-B weapons. Ordinary health & safety regs will suffice.

You didn't explain whether so-called "tactical" nuclear weapons can be prohibited and just exactly why? The yield of some is on the order of the largest non-nuclear weapons, I believe. What is magical about a fireball created with TNT versus a fireball created with fissionable uranium?

Radioactive fallout.
-- You are getting even more absurd in defending your nonexistent 'point'.

Despite your claim that some weapons are just too terrible,

I made no claim about "terrible" weapons. That's another absurd figment of your imagination.

that was not considered a problem by our Founders, it is of relatively recent concern historically, and to top it off, our nation is the only one on earth to have used a nuclear weapon in time of war.
Weapons restrictions during time of war are a tool used by the side which believes that it will be victorious without them and are only recognized by enemies who fear that they will not be victorious with them.

Again, - we agree. What does this have to do with rational regulations on C-N-B use during peacetime?

[William Tell]

jonestown said: "We have a multitude of laws protecting our health & safety. My point is, -- we have no need to tie C-N-B weapons to our RKBA's in order to regulate them. Ordinary common law will do the job."

Next you will be telling me "it's for the kids".

Please describe ANY anti-gun legislation which has not been justified by appealing to concerns about health and safety? Using your own criteria, how would you go about invalidating existing anti-gun laws?

Isn't public safety the rationale given for the recent outlawing of 50 caliber bolt-action rifles in Kalifornia?

Isn't public safety the rationale for outlawing private party sales of firearms in Kalifornia?

Isn't public safety the rationale for outlawing some semi-automatic rifles in Kalifornia because they have scary-looking features?

Isn't public safety the rationale for requiring the purchase of a trigger lock with every firearm?

Isn't public safety the rationale for limiting the individual to purchasing one gun a month?

Isn't public safety the rationale for requiring serial numbers on firearms?

How do you reconcile YOUR version of public safety with that of the anti-gunners. What arguments can YOU use to convince the anti-gunners that they have crossed the line when you use the same arguments?

[jonestown]

We have a multitude of laws protecting our health & safety. My point is, -- we have no need to tie C-N-B weapons to our RKBA's in order to regulate them. Ordinary common law will do the job.

Next you will be telling me "it's for the kids".

Is there any end to your absurd asides?

Please describe ANY anti-gun legislation which has not been justified by appealing to concerns about health and safety?

Why would I? -- I don't favor any anti-gun legislation. Fact is I've been actively working against it for 50 years, ever since I took an oath to defend our Constitution.

Using your own criteria, how would you go about invalidating existing anti-gun laws?

The free State concept of using massive civil disobedience appeals most to me.. They can't jail us all.

Isn't public safety the rationale given for the recent outlawing of 50 caliber bolt-action rifles in Kalifornia?

Beats me. -- But what if it is? Is that supposed to tar me in some way? -- Absurd.

Isn't public safety the rationale for outlawing private party sales of firearms in Kalifornia?

See above. And get some new, less absurd lines.

Isn't public safety the rationale for outlawing some semi-automatic rifles in Kalifornia because they have scary-looking features? Isn't public safety the rationale for requiring the purchase of a trigger lock with every firearm? Isn't public safety the rationale for limiting the individual to purchasing one gun a month? Isn't public safety the rationale for requiring serial numbers on firearms?

Yada Yada. -- Reasonably regulating C-N-B use has nothing to do with our RKBA's.

How do you reconcile YOUR version of public safety with that of the anti-gunners.

YOUR absurd version of my words is not based on the reality of our posts here.

What arguments can YOU use to convince the anti-gunners that they have crossed the line when you use the same arguments?

I don't use the same arguments. You are imagining that I do.

[William Tell]

jonestown said: "I don't use the same arguments. You are imagining that I do."

Please tell me what argument you use, aside from public safety, to prohibit the keeping and bearing of tactical nuclear weapons?

Please tell me of any argument, aside from public safety, used by anti-gunners to prohibit the keeping and bearing of arms? If you don't know, then how do you determine that your arguments differ from the anti-gunners?

You wish to claim that you don't use the same argument, yet "public safety" is it.

[jonestown]

I don't use the same arguments. [that the anti-gunners use.] You are imagining that I do.

Please tell me what argument you use, aside from public safety, to prohibit the keeping and bearing of tactical nuclear weapons?

My point here has been, -- there is no need to tie C-N-B weapons to our RKBA's in order to reasonably regulate their use.
Ordinary common law will do the job.

Please tell me of any argument, aside from public safety, used by anti-gunners to prohibit the keeping and bearing of arms?

Read the Justice Depts new report. The gungrabbers 'reasons' are all there.

If you don't know, then how do you determine that your arguments differ from the anti-gunners?

I do know. Your effort to claim I don't is unsupported imagination. I defend our RKBA's and always have.

You wish to claim that you don't use the same argument, yet "public safety" is it.

You seem obsessed with imagining what I 'wish or claim'.. Why not get a new hobby?

[William Tell]

jonestown said: "I defend our RKBA's and always have. "

You have repeatedly failed to defend the right to keep and bear tactical nuclear weapons.

You treat them as if they differ significantly from conventional explosives of the same yield.

You make the false claim that common law trumps the explicit language of the Second Amendment.

You suggest that prohibiting some weapons is "reasonable" without providing reasons other than public safety and have offered no explanation of how your reasoning differs from the anti-gun crowd.

How do you refute the claim by anti-gunners that automatic rifles should be outlawed for reasons of public safety? Do you tell them that the Second Amendment protection overrides issues of public safety? Or do you allow such infringements in some cases and disallow it in others? What distinction do you provide to anti-gunners that justifies excluding from prohibition the machine guns that so terrify them?

What development do you believe has relieved our populace from the burden of amending our Constitution to permit the prohibition of keeping and bearing some arms?

The mechanism is there. Our Founders intended that it be used. Why does the discovery of fission and fusion and the invention of weapons using those mechanisms qualify for automatic adjustment of the Second Amendment? Is it because you think it is a good idea? Are there other parts of the Constitution that you believe should be ignored without formal amendment? Why have the document at all?

[jonestown]

I defend our RKBA's. Always have, always will.

Our right to keep and bear tactical nuclear weapons can be reasonably regulated because they differ significantly from conventional explosives of the same yield, in that they are radioactive weapons of mass destruction, and can be packaged into small, 'walk around' suitcase nukes.

Common law can reasonably regulate 'walking around' with explosives, nuclear or otherwise, in attempts to terrorize thru suicide bombing.
The explicit language of the Second Amendment, our RKBA's, is not infringed by reasonable regulations on 'walking about' with C-N-B devices.


Anti-gunners claims that automatic rifles should be outlawed for reasons of public safety are specious, as thousands cannot be killed by a crazed gunman bent on suicide.
In fact, an armed public can help stop crazed & suicidal terrorists.

We can reasonably tell the gungrabbers that the Second Amendment protection overrides their trumped up issues of 'public safety'. We could provide to anti-gunners that same justification to end the prohibitions on the machine guns that so terrify them.


There are no developments that would justify amending our Constitution to permit a prohibition against the keeping and bearing of arms.
In fact, such efforts would be repugnant to the principles inherent in the document. Inalienable rights cannot be 'amended away'.

The mechanism to prohibit basic rights by Amendment is not a grant-able power.
Our Founders intent is clear, -- our inalienable rights to life, liberty or property are not to be infringed.

The discovery of fission and fusion and the invention of weapons using those mechanisms do not qualify for any adjustment of the Second Amendment.

[William Tell]

jonestown said: "The explicit language of the Second Amendment, our RKBA's, is not infringed by reasonable regulations on 'walking about' with C-N-B devices."

So you distinguish "walking about" from "keeping and bearing" and justify prior restraint in some cases and not in others? Please describe the differences between "walking about" and "keeping and bearing".

You support the prohibition of tactical nuclear weapons because they have the capability to kill thousands, but you oppose the prohibition of automatic rifles that anti-gunners will assure you can kill at least dozens. Please tell me what the number is that justifies infringement.

If I can invent a fission device that can only kill hundreds, am I protected? Or is "radiation" the secret to your exception to the Second Amendment. If I can invent a fission device that leaves behind no radiation, is that then protected by the Second Amendment?

Are weapons using depleted uranium protected by the Second Amendment, or is any radiation whatever unacceptable? If unacceptable, then what of the radiation from night sights on handguns? Must the people be unable to see their sights in the dark?

What other "walking around" prohibitions are allowed? Is Kalifornia justified in prohibiting, without license, the "walking around" with a loaded gun? Ten loaded guns? Ten thirty round magazines? One unloaded thirty round magazine? These are just "walking around" exceptions mandated by anti-gunners. Why are their concerns so much less powerful than yours in justifying prohibitions?

Should a person be allowed to keep and bear one measly little grenade? The anti-gunners have outlawed even that. How many grenades may I keep and bear under your understanding of the Second Amendment? Two? Ten? A thousand? And what gives you or anyone the power to decide?

[supercat]

You support the prohibition of tactical nuclear weapons because they have the capability to kill thousands, but you oppose the prohibition of automatic rifles that anti-gunners will assure you can kill at least dozens. Please tell me what the number is that justifies infringement.

Identify any way in which NBC weapons would be useful for a well-functioning citizen army securing people's liberty in a free state.

[jonestown]

The explicit language of the Second Amendment, our RKBA's, is not infringed by reasonable regulations on 'walking about' with C-N-B devices.

So you distinguish "walking about" from "keeping and bearing" and justify prior restraint in some cases and not in others?

'So', you have no end to your ablity to ask absurd questions, do you?

Please describe the differences between "walking about" and "keeping and bearing".

We have an inalienable right to bear arms. We have no right to walk about as a suicide bomber.

You support the prohibition [reasonable regulation] of tactical nuclear weapons because they have the capability to kill thousands, but you oppose the prohibition of automatic rifles that anti-gunners will assure you can kill at least dozens. Please tell me what the number is that justifies infringement.

Numbers do not justify prohibitions, -- just as regulations do not stop suicide bombers. Regs only serve to facilitate jailing crazies that walk about with bombs.

If I can invent a fission device that can only kill hundreds, am I protected? Or is "radiation" the secret to your exception to the Second Amendment.

There are no exceptions to our RKBA's. Mad bombers are not bearing arms, they are terrorists bent on suicide.

If I can invent a fission device that leaves behind no radiation, is that then protected by the Second Amendment?

See above.

Are weapons using depleted uranium protected by the Second Amendment, or is any radiation whatever unacceptable?

You mean bullets made of depleted uranium? Why would they be 'bad'?

If unacceptable, then what of the radiation from night sights on handguns? Must the people be unable to see their sights in the dark?

Absurdity has taken over your mind yet again. Last night I thought it might be booze talking. What's your excuse this morning?

What other "walking around" prohibitions are allowed? Is Kalifornia justified in prohibiting, without license, the "walking around" with a loaded gun? Ten loaded guns? Ten thirty round magazines? One unloaded thirty round magazine? These are just "walking around" exceptions mandated by anti-gunners.

I am not in favor of prohibitions on our RKBA's. Ask your questions of those that are.

Why are their concerns so much less powerful than yours in justifying prohibitions?

See above.

Should a person be allowed to keep and bear one measly little grenade?

Good question. I've never felt the need for one, have you? -- But off hand, seeing we all possess the right to have the materials to make them, I'd say yes, in effect, we do have that right, best left unexercised till needed.

The anti-gunners have outlawed even that. How many grenades may I keep and bear under your understanding of the Second Amendment? Two? Ten? A thousand? And what gives you or anyone the power to decide?

Suit yourself. -- How many do you want? -- Feel free to make as many as you like, -- its easy. -- But be prepared to be thrown in jail as a mad bomber, [under common law] if you do.
Who decides if you are a mad bomber? -- A jury of your peers. -- If our justice system is working.

[Sender]

It is obvious that this was written by a leafiest

I don't know, I've seen leafier writers than this.

[William Tell]

jonestown said: "Suit yourself. -- How many do you want? -- Feel free to make as many as you like, -- its easy. -- But be prepared to be thrown in jail as a mad bomber, [under common law] if you do. Who decides if you are a mad bomber? -- A jury of your peers. -- If our justice system is working."

You were asked before to identify any other clauses of the Constitution which are trumped by "common law". I suggested that such a belief is nonsense.

You are also suggesting that the manufacture of a grenade is not protected by the Second Amendment and that a jury should be allowed to convict despite the Second Amendment. Why should a jury then not be allowed to convict for manufacturing a machine gun? What critical distinction have you drawn between grenades and machine guns which permits one to be protected and the other not?

[jonestown]

Should a person be allowed to keep and bear one measly little grenade?

Good question. I've never felt the need for one, have you? -- But off hand, seeing we all possess the right to have the materials to make them, I'd say yes, in effect, we do have that right, best left unexercised till needed.

The anti-gunners have outlawed even that. How many grenades may I keep and bear under your understanding of the Second Amendment? Two? Ten? A thousand? And what gives you or anyone the power to decide?

Suit yourself. -- How many do you want? -- Feel free to make as many as you like, -- its easy. -- But be prepared to be thrown in jail as a mad bomber, [under common law] if you do.
Who decides if you are a mad bomber? -- A jury of your peers. -- If our justice system is working.

You were asked before to identify any other clauses of the Constitution which are trumped by "common law".

And I told you before, none are.

I suggested that such a belief is nonsense.

And as I then said, we agree..

You are also suggesting that the manufacture of a grenade is not protected by the Second Amendment

That's not true. All you have to do to verify is read my words above. Apparently you can't.

and that a jury should be allowed to convict despite the Second Amendment.

Not true. See above on what I wrote.

Why should a jury then not be allowed to convict for manufacturing a machine gun?

Because owning/carrying a machine gun is not the same as walking about as a mad bomber.

What critical distinction have you drawn between grenades and machine guns which permits one to be protected and the other not?

Walking about with a bomb is a madmans threat to his peers. Walking about armed can defend against such threatening madmen.

[groanup]

"law professors, with a straight face, argue the entire issue can be broken down into mere grammar." It can:


http://www.firearmsandliberty.com/unabridged.2nd.html