Posted on 05/11/2002 10:23:17 AM PDT by forest
Quite a number of us have been following the U.S. v. Emerson case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the original intent of all of the Founding Fathers when they approved the Constitution and later the Bill of Rights.
However, the decision was appealed.
Alas, although the Fifth Circuit Court of Appeals agreed with the lower court that the Second Amendment protects an individual right of the people to keep and bear arms, they reversed that part of the lower court's decision which benefited Emerson.(1) So, Emerson appealed to the U.S. Supreme Court. The Supreme Court is now considering if it will hear the case.
Lawyers speak to the Court through their briefs and last May 6 was the deadline for filing them. In a nutshell, attorneys for Emerson are petitioning the Court to hear the case. Attorneys representing the federal government do not want the Court to hear it.
Last year, in a letter to National Rifle Association, Attorney General John Ashcroft said that the Second Amendment confers the right to "keep and bear arms" to private citizens, and not just to the "well-regulated militia" mentioned in the Amendment's preamble. "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," Ashcroft wrote.
It would be kind of hard to support our Constitution and the intent of the Founding Fathers without agreeing with that. So, Ashcroft's letter got a lot of hopes up around the country. But "saying" it and actually enforcing it are two different things. So, we waited. Meanwhile, people were still being arrested around the country for unconstitutional and archaic gun laws.
Finally, last week, the Attorney General, via two U.S. Supreme Court briefs filed by Solicitor General Theodore B. Olson, tied actions to his words. Sort of, anyway.
As Linda Greenhouse reported in The New York Times 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.'"
Linda Greenhouse was exactly correct. That is what was filed in both Emerson and another case. Unfortunately, "unequivocally" is not exactly what Ashcroft or Olsen intended. Unequivocal would mean that they support the words "shall not be infringed" in the Second Amendment with "no doubt or misunderstanding" and the meaning is "clear and unambiguous."
The words "shall not be infringed" are unequivocal to many of us. "Shall not" is rather clear and needs no explanation to anyone outside of a government office. However, public officials want tight control over the people. Therefore, the Justice Department does not think of our right to keep and bear arms as a "right." Rather, to them it is an inconvenient "privilege" that must be strictly regulated by capricious bureaucrats.
Justice does not want Emerson to be heard by the Supreme Court simply because they know the Court is going to take a very dim view of many gun laws and may wipe our hundreds in one opinion. One only need read Justice Thomas's opinion concurring with the majority in the 1995 U.S. v. Lopez(2) case for a hint. We are sure the Justice Department knows Lopez quite well. Congress tried to regulate guns via the Commerce Clause. But, the Supreme Court did not buy it.
Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."
With that in mind, let's examine some of the Solicitor General's argument filed in Emerson:
"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."
That's ten steps in the correct direction, to be sure. But, it most certainly is not "unequivocal" support of the Second Amendment. The Amendment clearly says "shall not." That is greatly different than restricting "possession of types of firearms" as the government wants to continue.
So, saying that the Emerson Appeals Court decision reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited, the Solicitor General requested the Supreme Court to turn down the appeal.
If the government keeps control over our "right" to keep and bear arms, that right, then, becomes degraded to but a privilege.
It was the intent of the Founding Fathers that the American people shall have the unequivocal right to keep and bear arms and that government "shall not" interfere with that right. That intent was for personal arms one may "bear." Not cannon, howitzers, Apache helicopters, or tanks. Small arms only. Therefore, for small arms made to carry, there should be no restriction by government whatsoever.
To do otherwise is to violate the Constitution, as written. Because, restrictions would violate what Ashcroft called "the amendment's plain meaning and original intent" of the Founding Fathers. What the words "shall not" mean is that the right to keep and bear arms is an absolute right that government may not violate for any reason. As inconvenient as that may seem to our socialist tainted minds nowadays, that was the intent.
The Justice Department wants to have it both ways. That is why we expect the Supreme Court to seriously consider hearing Emerson -- and we hope they do.
1. http://laws.findlaw.com/5th/9910331cr0.html
2. http://laws.findlaw.com/us/000/u10287.html
It doesn't guarantee a right to smoke crack.
If it were that simple, the Founders would not have needed to include the 2nd Amendment.
They recognized that the ballot box was not always the proper method, and in fact would fight and die because of it.
And you have YET to answer the question put to you by NUMEROUS FReepers: Have you served in the armed forces of the US? I don't care about your service in the old Soviet army... just the US forces...
Crack smoking isn't protected by the BOR and comparing drug use to the RTBA is nonsense.
The Constitution shouldn't be violated.
Equating drugs with the RTKB is still nonsense.
As may be, Roscoe. No one I know is doing that. The issue is NOT drug use, per se. It is the violations committed by FedGov and other gooberment agents in the obscene pursuit of people who, really, do no more than ingest substances not too unlike what YOU ingest, except theirs is not gooberment-approved. These violations are exactly the same in scope and seriousness as the violations committed by BATFags and others in pursuit of the people whose sole "crime" is to be part of the "gun culture" and THAT is where you have the comparison, Roscoe. If you and your ilk will STOP pursuing people for what they ingest, then I will stop comparing you to pond scum and other disgusting slimey substances, OK? Besides, just WHERE is the legitimate moral and legal AUTHORITY for you to poke your nose into someone else's affairs in that manner? You pursue "druggies" and "gun-nuts" with the same fervor that Carrie Nation did "demon Rum," to the detriment of the pursuit of muggers, killers, makers of real kiddie-porn, and rapists... Why is that, I wonder? Could you please tell us?
Can you also answer the question, HAVE YOU SERVED IN THE US ARMED FORCES?
Equating the manufacture, sale and use of illicit drugs with the RKBA demeans the Second Amendment.
Backwards.
you are obviously doing too many drugs, roscoe.
Backwards.
352 posted on 5/16/02 2:02 PM Pacific by Roscoe
Oops, my bad!
ROSCOE, you are obviously doing too many drugs.
Stay well - Stay safe - Stay armed - Yorktown
If Roscoe happens to stumble back to this thread later, how about answering the d**n question: (let's start with this one)
have you ever served in the US Armed Forces?
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