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...

[March I up]

Welcome news indeed.

I wonder what else lurks on the second term W agenda...

BTTT

[SilentServiceCPOWife]

Thanks for the info and the link.

[Atlas Sneezed]

So much for the "Bush is dumping on gunowners" rants.

---

All it argues is that there is an individual right.

There is nothing to undermine the Bush doctrine of "reasonable restrictions" which is exactly the Schumer/Feinstein doctrine.

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!!!!?"

Bush supports 1934, 1968, 1986, and AWB. He loves restrictions. I guess like Kerry, he believes there is an individual right to have shotguns and hunting rifles for certain people who jump through certain hoops. Big deal.

Bush has perfectly fallen into the trap set by the antis. They present an absurd position (collective right) as if it is a legitimate dispute, then Bush crows, and his gullible supporters applaud, when he says that the absurd is incorrect. Imagine how excited you will be when the Supreme Court finally rules that it is an individual right. Big deal. Decades of creeping gun control, and some gullible people will think that "we" will have gained something. In fact, we are fighting on their turf, instead of discussing repeal of unconstitutional gun laws like 1934, 1968, and 1986.

JFK used federal powers to keep states from opressing blacks. Bush hasn't lifted a finger to releive the oppression of residents of DC, for instance. And his minions have continued to toss people in jail for possessing guns that should be legal under the Constitution.

[Howlin]

You know, I wonder if there is anything that George Bush can do that you all can't find SOMETHING wrong with.

Ridiculous.

[BCR #226]

ping

[from occupied ga]

the Second Amendment grants individuals nearly unrestricted access to firearms

Yes I remember the Second Amendment (Republican version) well saying that the right of the people to bear arms shall only be somewhat infringed unless the government wants to infringe it for what bureaucrats think is a good reason. As opposed to the Democrat's version which says the right of the people to bare arms only applies to those people in the military and law enforcement.

[Atlas Sneezed]

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

---

It says nothing of the kind. It says there is an individual right, but it says nothing contrary to the multitude of onerous restrictions on access to firearms presently endured by the people.

[Question_Assumptions]

All I think you really need to do is get people to read the early drafts of the Bill of Rights. Phrases like the militia clause where common in many of the other items (including free speech) but were dropped in most other cases because they weren't really necessary. Basically, that clause is meant to justify the claim to that right, not to qualify it.

You can find a good collection of early versions here.

[neverdem]

Thanks for the link, bookmarked.

[antiRepublicrat]

But but, Bush is liberal! How could his administration be doing this?

He's pretty liberal in using our money to build a bigger, more powerful fedgov, but he's definitely not all bad, case in point.

[Question_Assumptions]

The late July 28, 1789 version of the Second Amendment is particularly interesting because it has an additional important explanatory clause missing from the ratified version, by the way:

"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."

[Robert357]

.... the Second Amendment confers a broad right of gun ownership, comparable with the First Amendment's grant of freedom of speech and religion.

It is amazing how un-common, common sense is and how refershing it is to see it in Government.

The US Bill of Rights does confere broad ownership rights for "arms." The 2nd Ammendment is not about duck hunting, no matter what the liberals would like folks to think.

I think that everyone should read the Declaration of Independence and contemplate its relationship to the Second Ammendment.....

"We hold these truths to be self-evident...--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government... But when a long train of abuses and usurpations, ...it is their duty, to throw off such Government, and to provide new Guards for their future security."

[<1/1,000,000th%]

This sounds like it was written by a gun grabber.

[Question_Assumptions]

See the link to the early drafts of the Bill of Rights that I provided earlier in this thread. Early drafts of the Second Amendment (as well as the early drafts of other amendments) make what they meant a lot clearer.

[longtermmemmory]

This is excellent and needs to be distributed as much as possible.

If anything, it should be sent to EACH INDIVIDUAL STATE'S ATTORNEY GENERAL as a question on whether they agree with this.

Lets get thise guys on the record for 2006.

[sergeantdave]

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.

[OXENinFLA]

as applying not to individuals but rather to the "well-regulated militia" maintained by each state.

How in the HELL can the "Militia" in the Bill of rights, ratified Dec. 15, 1791, apply to a Gov't formed Militia when the Militia Act wasn't passed until May 2, 1792?!?!!!

[longtermmemmory]

In the liberal/leftist/socialist/commie mind amendments 1,3-9 are all about individual rights. Yet for some magically faaaaaaabulous reason number 2 is a colective right.

and therein lies the trick of the left, they do believe in "rights". Rights as collective rights with the individual right subservient to the rights of the state.

[OXENinFLA]

"I believe in background checks at gun shows or anywhere to make sure that guns don't get in the hands of people that shouldn't have them."

[mastercylinder]

they will never do it to many people value that law it won't go away trust me