Posted on 05/07/2002 2:21:39 PM PDT by greydog
WASHINGTON, May 7 The Justice Department, reversing decades of official government policy on the meaning of the Second Amendment, told the Supreme Court for the first time late Monday that the Constitution "broadly protects the rights of individuals" to own firearms.
The position, expressed in a footnote in each of two briefs filed by Solicitor General Theodore B. Olson, incorporated the view that Attorney General John Ashcroft expressed a year ago in a letter to the National Rifle Association. Mr. Ashcroft said that in contrast to the view that the amendment protected only a collective right of the states to organize and maintain militias, he "unequivocally" believed that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
It was not clear at the time whether the letter to the rifle association's chief lobbyist simply expressed Mr. Ashcroft's long-held personal opinion, or whether it marked a departure in government policy. The Supreme Court's view has been that the the Second Amendment protected only those rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia," as the court put it in United States v. Miller, a 1939 decision that remains the court's latest word on the subject.
But it has been evident since last fall that Mr. Ashcroft was in fact setting new government policy. In October, the federal appeals court in New Orleans, saying it did not find the Miller decision persuasive, declared that "the Second Amendment does protect individual rights," rights that nonetheless could be subject to "limited, narrowly tailored specific exceptions." Mr. Ashcroft quickly sent a letter to all federal prosecutors' offices, calling their attention to the decision in United States v. Emerson and informing them that "in my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment."
He told the prosecutors to inform the department's criminal division of any case that raised a Second Amendment question so the department could "coordinate all briefing in those cases" and enforce federal law "in a manner that heeds the commands of the Constitution."
In the briefs it filed at the Supreme Court after the close of business on Monday, the Solicitor General's office attached the Ashcroft letter and included the following footnote to explain its new position:
"In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, 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."
While announcing the government's new position, the briefs do not ask the court to respond by taking any action itself. In both cases, defendants charged with gun offenses raised Second Amendment defenses and appealed to the Supreme Court. One is the Emerson case, now called Emerson v. United States, No. 01-8780, an appeal by a doctor who was charged with violating a federal law that makes it a crime for someone to own a gun while under a domestic violence restraining order. The other is Haney v. United States, No. 01-8272, an appeal by a man convicted of owning two machine guns in violation of federal law.
Solicitor General Olson urged the Supreme Court to turn down both appeals. He said that even accepting an individual right to bear arms, the application of the laws at issue in both cases reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited. Consequently, there was no warrant for the court to take either case, the briefs said.
With all due respect to Mr. Olson, he is dead wrong on the issue and this "policy shift" is merely an attempt to deflect criticism from their position that the SCOTUS should not hear the Emerson appeal.
Having read both opinions and the brief filed to SCOTUS, the larger issue is the standard of review employed by the 5th Circuit. They went out of their way to demonstrate why the Second Amendment is a fundamental individual right - and then analyzed the offending statute using a rational basis standard. That is the wrong standard of review for a fundamental individual right. The correct standard is strict scrutiny - and 90% of the current laws will not pass that type of review.
Further, the statute makes it a crime to posess or transfer a firearm once you are subject to a protective order - the only way not to violate the statute is to divest yourself of all firearms prior to the order being issued. That means you can be summarily deprived of an individual right and subject to incarceration without due process because if you don't divest prior to a hearing and the order is issued you cannot take any action without committing a crime. (Unless you are willing to not return to your domocile until after the order expires)
Mr. Olsen is dead wrong - the appeal should be heard and the government's position on the law (unless they admit it is unconstitutional) is dead wrong
Something George W. Bush understands is that change on contentious issues is incremental. The country will not support radical change. However, radical change can be effected through a series of much smaller changes.
The Democrats have long understood incremental change and have used it effectively to achieve their goals. Bush shows he understands their game and is turning their game against them. Smart politicians learn quickly from their opponents.
What they don't mention is that the case considered any military issue personal arm to fulfill that requirement: like machine guns and battle rifles.
That's a lie. They didn't find the later manglings of the Miller decision pursuasive. Ones which claimed the Miller decision said things that literate people could not find in it.
Nope. Not unless the military is now using .22 pistols, old S&W .38s and sawn-off Ruger 10/22s.
there isn't a tinkers d*mn of difference between Clinton/Gore and George Bush!
Posted to alleviate the pounding, apoplectic hearts of the Bush Bashers.
Not only that it sets precedent that both parties agree the right to keep and bare arms can indeed be infringed upon. This policy is closer to what the Dems were pushing 15-20 years ago than any conservative position on the Second Ammendment. We've lowered our standards to theirs it seems. Slowly but surely the two parties are catching up with each other.
"And whatever happened to the words, Shall not be infringed, when you place restrictions upon a persons Constitutional rights for any reason(s) then the true intent of the Second Amendment is not being met".
After all, in the eyes of our government are not we all lacking the ability to do for ourself what we ask them to do for us, ie: Social Security, Welfare, Education, Health Care and on. Does this make us unfit?
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