Changing the 2nd Amendment

SEATTLE POST-INTELLIGENCER http://seattlepi.nwsource.com/opinion/69642_guned.shtml

It is disturbing, though not surprising, that the federal government has decided after numerous decades of settled thinking on the Second Amendment to reinterpret its position.

The marked shift, formalized in a pair of footnotes to legal briefs submitted Monday to the U.S. Supreme Court, occurs because of the deeply held beliefs of the man who is now leading the Justice Department, Attorney General John Ashcroft.

Last summer, in a letter to the National Rifle Association, Ashcroft foreshadowed the change in official thinking. "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms," he wrote.

The department's departure is profound from philosophical and practical standpoints.

Until now, through Republican and Democratic administrations alike, the Justice Department has been in virtual lockstep with the high court's position on the Second Amendment, as last stated in the 1939 decision, United States v. Miller. In that case the court said the amendment protects only those gun ownership rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia."

While legal scholarship on the exceedingly volatile amendment has seesawed between the two disparate views, the courts have been generally unified in their thinking -- adhering to the Miller decision in more than 100 federal and state appellate cases -- until last fall.

Then, in the prosecution of a Texan for violating a 1994 federal gun law, the U.S. 5th Circuit Court of Appeals departed from precedent to maintain that the amendment protects the individual right to bear arms. It did say those rights could be subject to "limited, narrowly tailored specific exceptions."

It should be noted that the department, while announcing its change of heart on the basic thrust of the amendment, does not disagree that gun ownership can be curtailed to some extent. And the department would prefer that the high court not involve itself in the Texas case or its companion on appeal, the case of a man convicted of owning two machine guns in violation of the ban against them.

We disagree. Though couched in a footnote, the pointed challenge to decades of unified thinking by the judiciary -- the perspective that ultimately counts -- has been made.

The time is ripe, as is said in legal parlance, for the high court to weigh in again on the Second Amendment and, it can be hoped, reaffirm the position that the Constitution guarantees only a collective right to guns through state and federal militias, not an individual's absolute right. Otherwise, the door will open wide to weakening the responsible gun laws that protect us all.

"We disagree."

Tough crap, rag.
YOU do not speak for me so go pound sand.
You're worthless Leftist-Leakers; &, whatever ya got to say?
Carries with it about that much, or less, weight. {spit...}

FACT:
Leftists & their various *arms* ie the 'Rats, Socialists, Communists & other assorted sundry *freaks* will never stop attacking ALL our amendments in their hellbent effort to suit their needs, wants & schemes -- the 2nd Amendment, notwithstanding.

So damned lucky for us, that in order for the bastards to change any of OUR amendments?
They shall first be made to trudge both hell & high water.
Just as the system was designed to -- make anyone or anybody -- do; who, might be desirous of screwing around with OUR Constitution as written.

When the cold dark day comes, whereby these misfits start to fiddle with the mechanism(s) by which that amendment-changing process is applied and enforced so they can create themselves a short-cut?

...call me.

With all due respect, your editorial is just an opinion, and quite an uninformed one at that. Your opinion is that the Second Amendment does not and has never protected an individual right. Someday I would like for your paper to opine on how the word “people” can mean one thing in the First, Third, Fourth, Fifth and Sixth Amendments and take on an entirely different meaning in the Second. But, putting aside that basic problem for the anti-civil rights view, the larger question is has the Supreme Court’s opinion of what the Second Amendment protects changed? It hasn’t, but you wouldn’t know that because you obviously rely on poor scholarship or no scholarship at all to reach your opinions.
Your “opinion” cites US v Miller for its support. Much like all the cases which cite Miller, you haven’t the first clue what Miller actually stands for. It is clear you never read Miller. Had you done so, you would know that Miller stands for the proposition that the only arms for which an individual enjoys Constitutional Protection via the Second Amendment are arms with military utility. That’s right, under Miller an assault weapon is clearly protected.
Miller was not decided based upon a determination that individuals are not protected by the Second Amendment – it was based upon the incorrect notion that a sawed-off shotgun had no military utility. This was incorrect because they were in fact used in times of war to clear trenches and tunnels. The Supreme Court never heard this fact because Miller disappeared prior to his appeal being heard and his position was never briefed. Had the Supreme Court believed that the Second Amendment did not apply to individuals they would never have reached the previous, erroneous conclusion – they would have dismissed the case altogether on the grounds that the defendants, who were NOT members of the national guard or armed forces, lacked standing to even bring the challenge. That’s right, the Court did not dismiss the case based on standing, which it would be required to do unless the appellants had standing to bring the charge. The appellants could only have standing if the Second Amendment applied to individuals.
The statement that the Supreme Court has only opined on what the Second Amendment means is also incorrect. There are plenty of opinions from the Supreme Court that mention the Second Amendment. Every one of those cases includes the Second Amendment as an individual right. Those cases include, but are not limited to, United States v Verdugo-Urquidez (1990), stating that ‘the right of the people’ in the First, Fourth and Second Amendments should be construed consistently; Poe v Ullman, (1961) stating that the right to keep and bear arms is part and parcel of the ‘full scope of the liberty’ provided to the individual by the Constitution; Dred Scott v Sanford, (1850) where the Court specifically stated that if African-Americans were citizens they would enjoy the right to keep and bear arms; and Patton v United States, (1930) “The first ten amendments…were substantially contemporaneous and should be construed in pari material.” There are others, including Casey v Planned Parenthood, but I think I’ve demonstrated that Miller is by no means the last word on the Second Amendment, nor is the notion of what the Second Amendment protects “well settled.”
But don’t take this attorney’s word for it. Read Can the Simple Cite be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961-1004 (1996) at http://www.constitution.org/2ll/2ndschol/17denc.pdf . It is a wonderful and in-depth analysis of Miller and the decisions that cite it. The article demonstrates that the cites to Miller either ignore the plain meaning of Miller or those Courts merely cited Miller without reading the opinion.
Either way, the Second Amendment hasn’t changed over time – it has always stood for the proposition that there is a fundamental right for an individual to possess firearms. It has only taken this long for legal scholars and finally an honest government to recognize that fact. It is high time the Media recognizes this fact as well. Only when we can all acknowledge that you and I have an individual right to possess firearms can we craft laws that target true criminals and leave you and I alone to pursue the “full scope of liberty” protected by the Bill of Rights.

We'll see if they print this response...and no, I won't hold my breath.

[If the 80 million gunowners would have taken an interest before this, we wouldn't be in this mess.]

Oh, Malarkey. If the NRA hadn't been playing politics with our rights, we wouldn't be in this mess. Guess who will be actually bowing up and shooting at any troops or police sent to disarm us. Hint: it won't be the NRA. The NRA is just a vehicle for channeling campaign money to gungrabbing politicians. The NRA is the largest guncontrol lobby in the US, and the media holds them up as the boogeyman who stands in the way of "common sense gun laws". As usual the media is full of malarkey.

Get a clue, Shooter. The NRA has been around since the radicals were running the country. If they represented the thinking of 80 million gunowners, they wouldn't have a membership of only 4.5 million. It's pretty telling that 97% of gunowners routinely tell the politicking NRA to kiss our collective asses. The fact is that the NRA has actively lobbied for, written and/or endorsed every major piece of federal gun legislation ever passed. They can KMA. The numbers show that most gunowners feel the same way I do about Moses and Waynie.

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