What Does Individual Right Mean?

May 11 Neal Knox Update -- It's been amusing watching the reactions of both sides -- but particularly the anti-gun crowd -- to Solicitor General Ted Olson's official statement that the Department of Justice considers the Second Amendment to protect an individual right.

The position was laid out in footnotes of briefs asking the Supreme Court NOT to consider two Second Amendment-based cases.

One was Dr. Tim Emerson's appeal of the 5th Circuit's decision that he had to stand trial for possessing firearms while under a court order issued during a divorce. The second, *Haney v. U.S.*, concerned John Lee Haney, an Oklahoma man convicted of illegally possessing two machine guns.

The Solicitor General, whose official duty is to defend the Constitutionality of Federal laws, wrote: "The current position of the United States ... is that the 2nd Amendment more broadly protects the rights of individuals ... who are not members of any militia ... 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."

Who is an "unfit person" and what type of firearm is "particularly suited to criminal misuse"? Does that mean a handgun, which are used in infinitely more crimes than either "assault rifles" or machine guns?

Although agreeing with the 5th Circuit Court of Appeals "individual right" position in *Emerson* it also agreed that the limited exceptions to that right included denying gun ownership for someone under a domestic violence restraining order issued during a divorce proceeding.

The Justice Department position also implicitly accepted that it was constitutional to restrictively license machine guns which, under the 1939 *Miller* decision would appear to be the most- protected type of firearm, the type gun most used by the military.

If the exception list is that broad, what isn't excepted in the Bush Justice Department's view?

The most shrill screams against the DOJ position were from GunIndustryWatch.org, a branch of the hard left "Alliance for Justice":

"This new interpretation of the Second Amendment puts even the most modest gun restrictions in jeopardy:

"* Laws prohibiting the possession of firearms by convicted felons, fugitives, drug users and addicts, illegal aliens and the mentally ill could be ruled unconstitutional."

NRA spokesman Andrew Arulanandam said the DOJ position is "a step in the right direction," with which I agree.

But on National Public Radio's Talk of the Nation program Thursday, NRA's Trish Gregory praised the decision and said it supported existing gun laws -- which startled even the moderator.

The entire program, which includes an outstanding discussion between UCLA Law Prof. Eugene Volokh (who said DOJ is merely restating the individual right position broadly held prior to the Miller case) and Yale Prof. Akhil Amar. The segments or the entire program may be listened to by going to the archives at www.npr.org.

George Mason University Law Prof. Nelson Lund, who supports a broader interpretation of the Second Amendment, summed up the DOJ position quite nicely: "The decision seems largely symbolic. We don't have any way of knowing whether it's going to have any practical effect at all. If so, it will be quite some time before we see an effect."

This has not yet been posted on Free Republic if my use of the Search Engine has been effective.

It is certainly a different interpretation of the recent Supreme Court Brief from the analysis commonly found in the electronic or print media.

For your consideration

Best regards,

Goverments do not give or take rights.The 2nd Amendment defines what our right is but it does not give us our right.It is an instinctive thing to want to protect yourself

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.