Posted on 05/08/2002 11:57:58 AM PDT by Patriotman
White House reverses stand on right to bear arms
Associated Press
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."
Thanks....so then a restraining order that does infringe upon the target's rights may be issued with due process of law?
Yes, though what constitutes "due process" may vary considerably by state, and by what rights are affected.
Not really. The Court could throw out the Lautenberg Act as being a violation of Article I.8 jurisdiction, just as they did the Gun Free School Zones Act, without needing to make any reference whatsoever to the Second Amendment.
To be sure, GCA'68 also has some jurisdictional problems though with some slight work and state coopration the felony gun ban could be implemented in such a way as to pass even strict Constitutional muster (making use of the "full faith and credit" clause and the convicted-criminal exception to the Thirteenth Amendment).
I'd like to add mine to that "Wish List" and get GW to counterman every E.O. that Herr Klinton signed to make an end-run around the United State's Congress. . .
Oh, well, one can hope. . .
You need to do your homework. You're listening to way too much liberal media spin.
What you "DON'T" hear.. is about all the robberies that are PREVENTED by Store Owners who HAVE guns.
What you need to look up..are the stats since it has become legal to CARRY in Texas and Oklahoma. There are things you MUST do in order to have that privledge.. but what you need to look up are the crime stats since the right to carry took effect!! I'll save you some time.. THEY WENT DOWN!!
I think background checks of some magnitude are good, in that we don't want criminals legally getting guns! But I also know that criminals will always get them somehow even if they were banned.
I might add.. it would be ill advised for a person with criminal intent to enter my home. We are both expert marksmen. I was taught to shoot by a former Seattle Sherrif years ago. I was taught to never aim to maim.. but to kill.
I would.
We stay proficient in firing our weapons.
We raised 5 children and have 12 grandchildren. There have always been guns in our home. They are loaded. The first chamber is always empty. We use common sense when dealing with the issue of safety..and our protection. We are absolutely positive that our kids NEVER touched our guns. We have ways of knowing this. We have prooved it.
Its called "being responsible".
Something a lot of parents lack..and usually the ones who fear guns the most! IMHO
The accidental shootings are actually statistically rare. And don't tell me that one is too many.. of course it is. But so is one child being hit by a car TOO MANY!!! One drowning too many!!!
Accidents do happen. We can't outlaw living!!!
Now abortions.. THATS MURDER!!!
What T/C did to force the issue was register a tax stamp for a short-barreled rifle, build one, and then sue the BATF for a refund of the tax. Since the BATF could not legally return the money without acknowledging that no tax was owed on such rifles, but could not keep it if it had no legitimate reason to do so, there was no way the government could let the issue drop before it reached the Supreme Court.
I would propose, if and when the makeup of the Court is favorable, the following procedure: (1) a group like GOA or JPFO registers a tax stamp for an M16 and purchases such a weapon in a state where legal. (2) The group sues the BATF, on the grounds that the M16, having been a standard rifle of both the U.S. infantry and the National Guard for many years, is clearly a weapon suitable for use in a well-functioning militia. (3) Nobody has to risk going to jail, and the government can't simply default on the case when it looks like it might lose.
Anyone like that strategy?
Then you should be very happy because he has done just that. He has rescinded or tabled every EO signed by Clinton that fits the legal description of "executive order".
Really ??
Would you, by any chance, have a link to that ?? ?? ??
I would LOVE to read through that one !! !!
But, I have a little problem about his signing something, to get around Congress, that needs congressional approval to be removed. . .
Sounds like a Zen Riddle to me. . .
Yes but the question was , “why he has not countermanded Clinton EO's?" Or was I mistaken? Executive orders are constitutional. The reason they are is because they do not carry the force of law past a sitting presidents term of office unless allowed by future presidents
The "reasonably restrictions for unfit persons" refers of course to men being sued for divorce.
Of course THEY don't ever want it tested.
There is the danger that the supreme court might actually compare Olsen's contention to "shall not be infringed".
Sorry I missed your point. The "Antiquities act" specifically grants a sitting president the authority to declare "National Monuments". That is a congressional authorization. However;, congress retains the power to modify OR "veto" any "monument" it chooses.
However; the question WILL be raised because of this opinion and it WILL be decided in the USSC with the Solicitor General arguing it. No, tanks, grenades, bombs and missiles are not going to be sold in the neighborhood army surplus store, but if you can't recognize this as a sea change in government (administration) opinion there may be nothing that could sway you.
Then the reset button will be that much closer to being pressed.
Of course they COULD. The question is "What are they LIKELY to do?". Seems to me like a couple of them are just looking for a valid excuse to tee-off on the second amendment. This could easily serve as the tool they have been looking for.
To be sure, GCA'68 also has some jurisdictional problems though with some slight work and state coopration the felony gun ban could be implemented in such a way as to pass even strict Constitutional muster (making use of the "full faith and credit" clause and the convicted-criminal exception to the Thirteenth Amendment).
I'm not so sure of that,but it doesn't really matter at this time. First,they have to hear and make a pro-freedom ruling on a "nuts and bolts" case like this one,and then we'll see what happens down the road. I personally don't see ANY justification for keeping a "convicted criminal exception" alive,but who knows how the knees will jerk on a panel of judges? No other group of people are more pre-disposed to find such a thing valid.
Amen!
You are so right.
Too bad most Americans have been brainwashed into conformity by the gubbamint school system.
I'm afraid it's a lost cause.
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