White House reverses [decades old] stand on right to bear arms

Washington — Reversing decades of Justice Department policy, the Bush administration has told the Supreme Court that it believes the Constitution protects an individual's right to possess firearms.

At the same time, the administration's top Supreme Court lawyer said the case need not test that principle now.

The administration's view represents a reversal of government interpretations of the Second Amendment going back some 40 years.

"The current position of the United States ... 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," Solicitor-General Theodore Olson wrote in two court filings this week.

That right, however, is "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."

Mr. Olson, the administration's top Supreme Court lawyer, was reflecting the view of Attorney-General John Ashcroft that the Second Amendment confers the right to "keep and bear arms" to private citizens and not merely to the "well-regulated militia" mentioned in the amendment's text.

Mr. Ashcroft caused a stir when he expressed a similar sentiment a year ago in a letter to the National Rifle Association.

"While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Mr. Ashcroft wrote.

Critics accused him of kowtowing to the gun lobby and of undermining federal prosecutors by endorsing a legal view 180 degrees away from what has been official Justice Department policy through four Democratic and five Republican administrations.

At the time that Mr. Ashcroft wrote the letter, it was unclear whether he was expressing his personal view or stating a new policy position for the government. That question was mostly answered last November, when he sent a letter to federal prosecutors praising an appellate court's decision that found "the Second Amendment does protect individual rights" but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."

That opinion by the 5th U.S. Circuit Court of Appeals went on to reject arguments from Texas physician Timothy Emerson that a 1994 federal gun law was unconstitutional. The law was intended to deny guns to people under judicial restraining orders.

"In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment," Mr. Ashcroft told prosecutors.

Mr. Emerson appealed to the Supreme Court, putting the Justice Department in an awkward position. Although the government won its case in the lower court using the old interpretation of the Second Amendment, Mr. Ashcroft had switched gears by the time the case reached the high court.

Mr. Olson's court filing on Monday urged the Supreme Court not to get involved and acknowledged the policy change in a lengthy footnote. Mr. Olson also attached Mr. Ashcroft's letter to prosecutors.

Mr. Olson made the same notation in a separate case involving a man convicted of owning two machine guns in violation of federal law. In that case, the government also won a lower-court decision endorsing a federal gun-control law.

The Justice Department issued a statement Tuesday night saying its latest comments reflect the Attorney-General's position in the November letter to prosecutors.

"This action is proof positive that the worst fears about Attorney-General Ashcroft have come true: His extreme ideology on guns has now become government policy," said Michael Barnes, president of the Brady Center to Prevent Gun Violence, which promotes gun control.

Mr. Barnes noted that other federal appeals courts and the Supreme Court have not found the same protection for individual gun ownership that the 5th Circuit asserted in the Emerson case.

The Supreme Court last ruled on the scope of the Second Amendment in 1939, when it said the clause protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."

It seems pretty clear to me that Bush is going to play the game on some issues but not others. He won't do anything to further abridge gun rights, promote abortion, or raise taxes. He will, however, give in on stupid legislation and overspending. The question in my mind--and the determining factor in whether I stay in the boat with Dubya--is whether he's really determined to appoint good judges and justices. It's clear the Dems are trying to freeze out all of his appointments to the circuit court, but when he gets the chance, will he appoint good ones? Will we reverse Roe v Wade in my lifetime?

No one is stopping you from breaking a federal gun law and going to SCOTUS over it.

That is EXACTLY what the White House is trying to prevent Emerson from doing,and I have always been lead to believe the WH has a certain amount of influence.

This doesn't prevent that in any way, and in fact it strengthens your case.

How does giving a STRONG hint to the Supreme Court that the WH doesn't want them to hear a 2nd Amendment case strengthen future 2nd amendment cases?

The case is very far from being a gun control freak's license to regulate our weapons possession. The case upheld a law against individuals possessing sawed-off shotguns, but only because they were not military weapons.

Actually, the anti's misconstruction of Miller is worse than that. Contrary to their common claims, the Court did not uphold the conviction of Miller (nor co-defendant Layton). THESE MEN WERE NEVER CONVICTED!

The bottom line, literally, on the Miller decision was that the case was remanded to the lower court. The Supreme Court justices didn't say that a sawed-off shotgun wasn't a militarily-useful weapon, but rather that they could not themselves make that determination; it would be up to the lower court to do that.

When the Miller decision was handed down, neither Miller nor Layton was under indictment on the NFA'34 charges. Consequently, they were under no obligation to present a case, and they didn't. By the time the case was decided, though, Miller was dead and Layton was in jail on other charges. The government, rather than seeking to prosecute Layton, plea-bargained for time served.

In short, what happened is that the government's lawyer argued before the court that they could show Miller/Layton's gun was not of a type covered by the Second Amendment and the Court ruled that they could try to make their case in trial court. The government, after having been told that they could proceed with the case, probably recognized that it couldn't win (sawed-off shotguns were used in World War I, after all) and for all practical purposes dropped the charges and declared victory.

When do most Americans know that President Bush did the right thing.

When the left wing scumbags make statements like this: This action is proof positive that the worst fears about Attorney-General Ashcroft have come true: His extreme ideology on guns has now become government policy," said Michael Barnes, president of the Brady Center to Prevent Gun Violence, which promotes gun control.

When the losers in political life, the third party irrelevants say Bush is still a loser! You know the professional GW haters who hate GW 30 hours a day (they work overtime hating and trying to bash him and blame him for everything that happens from the sun rising in the East and setting in the West!)

The rest of us say "Good Job Mr. President!"

You can tell the value of a man by his enemies! Again President Bush's Value comes across loud and clear except for his Axis of Whining Weasel Haters in America!

Unfortunately the effect is to take a case which was on its way to the SC and, correctly ruled, would have overturned many unConstitutional laws, and derail it. Or, the effect of a pro-2nd official stance is that anti-2nd laws shall remain in effect; and later, if an anti-2nd administration gets in, the structure of bad law will remain on which more bad law can be built.

The Lautenberg Act (which--it should not be forgotten--was passed by the Senate in October of 1996 by a 98-0 margin) contains many elements that would be eggregiously unconstititional even if the Second Amendment were ignored. Among other things, it could be struck down for the same reason as "Gun Free School Zone Act I". Additionally, it makes a total mockery of the Fifth Amendment right of due process and (while not applicable to Emerson) the Constitution's prohibition against ex post facto legislation.

I see no reason why the Court would have to make a decisive ruling on the meaning of the Second-Amendment to strike down the Lautenberg Attrocity. I'm bewildered, though, by why Ashcroft isn't letting things proceed forward.

No, Pete. The Supreme court does not take orders from the Justice Department on what cases it will hear. If four Justices want to rule on 2a, they'll accept any case that comes along. If not, they won't.

I know this. They can do whatever they want to do. However,it is foolish and dishonest to try and pretend they can't be swayed or influenced by the White House.

but this is the wrong conspiracy theory.

Only because it is a conspiracy fact.

"... It really is true you people can NEVER see anything that Bush does as a positive."

That ain't true.

I can't recall criticizing the President here on FR yet for any of his administration's policies. If you can find one -- and it would be easy to do -- please remind me.

What I am saying is the DOJ's tack on RKBA is designed to keep the Emerson case from being heard. Another poster said that the 5th Circuit Court of Appeals wrote in an escape hatch for the USSC so as not to hear the part of the decision that pertained to the 2nd. I don't disagree, but I'm also not second-guessing what the USSC might or might not be interested in.

The government's lawyers plead with the court not to rush to judgement. You cannot deny that.

Emerson must be heard. I don't care that the end result may mean that BATF goes back to being a boring old outfit that is primarily concerned with cigarette tax stamps and bootleg barrels of whisky.

I'm not Bush's enemy. He hasn't made me sorry yet that I broke ranks and voted for him.

You're being fooled by headlines created by major media news-gatherers who decide what the news is, rwfromkansas. Today's events are not as they appear to be.

Don't believe me? Watch where this leads.

You are over reacting. This is a nothing assignment. Presidents have been sending former Presidents on these things for years. Like it or not he is a former President. Better to send him there then the Middle East.

I don't live in fantasy land. But I beginning to question whether you do. I can't stand Clinton but we can't change the fact that he was the President of the United States. He won't stop critizing Bush but at least he is out of the way for a short time. I am realistic enough to know that former Presidents represent the country in things like this all the time. We may not want him representing us but there are those that do. That is reality. Personally this shows how unimportant Bush feels he is if he sends him to the middle of no where for a "back page news" assignment. I don't get upset over nothing and this is nothing.

I have a question. As it stands now with the Justices that we have, could the Supreme Court rule against Emerson? Could that be the reason that Ashcroft told them to forget about a ruling?

This is also a message to everyone else. Get involved. We are going to have the Public Relations War of a lifetime in the next couple of months. This is the time for everyone to join one or more of the Gun Groups. This is not the time to say that we can't afford it or a hundred other excuses. This is also not the time to pretend to play Red Dawn in your backyard. This for real. Get involved. Go to the rallies, pay the dues, make the donations and volunteer.

He is doing his best to torpedo a case that would most likely serve as a basis for overturning ALL federal gun-control laws.

Why would it serve as such a basis? There are many grounds for overturning the Lautenberg Attrocity, many of which would hardly mention the Second Amendment.

Among other things, the Lautenberg Act seeks to federalize the issuance of restraining orders and domestic-violence prosecution. The Supreme Court already decided in Lopez that the federal government does not have plenary power; issues of local violence are a matter of state jurisdiction. For the Court to allow the government to prevail in this case would be for it to declare that the federal government has plenary power over anyone who possesses any artifact which has ever been involved in interstate commerce. For it to declare that would effectively annul its previous decision.

Further, I don't know to what extent statutes may be challenged on the basis of unconstitutional language which would not otherwise be relevant to the current case, but there are numerous other provisions in the Lautenberg Attrocity which are unconstitutional on their face. For example, it would retroactively change the punishment imposed upon someone who plead no-contest to a domestic violence charge in exchange for a completely-suspended sentence [which, if the person would otherwise have had to stay in jail pending trial, would be less 'punishing' than going to court and being acquitted]; such retroactive reworking of punishemnts is clearly forbidden by the Constitution.

The Lautenberg Act, despite its being passed 98-0 in a Republican-controlled Senate, is so eggregiously unconstitutional even on non-Second-Amendment grounds that the Court has plenty of 'outs'.

"When will these idiots learn that all talking out both sides of your mouth accomplishes is getting both sides mad at you. The gun-control feaks are having fainting spells over Ashcroft's pose,while anybody oppossed to gun-control who thinks about this for a minute will realize what Ashcroft and Bubba-2 are really doing is selling us down the river."

I dont know how old you are, but have you considered running for public office????

'We' are not Bush & Ashcroft's enemies, we are their political opponents.

They are playing a sophisticated political game with this 'decision'.

No one in power, state or federal, want the USSC to 'incorporate' the 2nd amendment [or any other individual rights for that matter], -- into the constitution. The current powers that be like the statis quo. --
-- The big 'statist' quo, in actually.

Thus, -- a sugar tit meaningless decision thrown to all us gun nuts.

You bought it. -- Thanks be that many here haven't.

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