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
And the Second Amendment prohibited Congress from infringing the right of "the people" to keep and bear arms.
In the first place, the 2nd amendment will NOT defeat a government intent on subjugating the populace. Yours, and mine, stock of guns are going to make no impact on the US military. Having said that, yes the 14th amendment unleashed the federal government on the entire nation. With a single USSC it can invalidate every state law in existence.
At #60, I asked:
---- I don't understand your problem with congress.
If the court writes a decision - [barring that 'fancy' language]-, affirming that the individual right cannot be infringed,--- how then can congress start limiting that right, - afterwards?
In the case of Emerson, the Court MUST agree with the Attorney General that to keep and bear arms is a Constitutionally protected right because there will be no one in the matter attempting to stipulate otherwise.
What the Attorney General did was to make this a win-win situation for us -- but not necessarily for Emerson.
You seem to be assuming the court will hear Emerson, despite the opposition of the administration. I hope they do, but why do you have such a certainty?
However, I believe, the only way a favorable majority opinion will come out of that Court is if government is allowed some restrictions on our Second Amendment right. All we can do is hope to somehow limit what restrictions are allowed to government. And, we'll need to hire a better quality of people to send to Capitol Hill.
Knowing this court, & congress, they will somehow invent whatever restrictions they feel needed. -- And I guess we can agree that is the 'problem' you've seen. -- Thanks.
Ignorance isn't knowledge.
The sky is falling! -- The evil 14th is gonna get us! --- Woe, woe I say ....
What you're suggesting is that an individual may be denied access to cartridges/guns by his state (or other individuals- say condo association board). Fine.
Given what took place in Florida recently (hanging chads) what faith can one place in the ballot box?
Campaign finance reform is knocking somebody off the soap box 60 days before an election. Do you see a trend here?
Let's accept the "positive" argument for a moment. If you take the dictionary definition of "infring" then even the ban of nuclear weapons would be prohibited. Then you work back from that point. Let's take the "assault weapon ban" or the "ugly gun ban. It is ridiculous in that other weapons of the exact same calibers and operation qualities are still legal however no "infringement" seems to be in play other than aesthetics. The big debate will now fall on the proper scope and limits of the term Infringe and the status quo will probably hold except in those federal and state laws that use the "militia only" interpretation as the justification for enactment.
Gore lost.
Yes in 1776 prior to tanks, planes and napalm. Look, if you resort to the "cartridge box" all it will get you is dead unless the military agrees that the “it is time”.
The founders had the solution, it is called the 10th amendment.
When states violate individual rights, they are corrected by the 14th amendent. Checks & balances work, as they will when the 2nd is incorporated because of Californias violations.
Dude, this is America, not Tienamen Square. America's military will not crunch an American seeking a redress of grievences under a tank. Owning guns and carrying guns makes for more honest citizens and the interactions that take place between them.
Today, the greatest fear of any politician is that he/she may not get re-elected. Well, that's simply not sufficient. Put the fear of insurrection back in their hearts and maybe, just maybe we'd see less of the greasy, slicky-boy politicians we have had to endure in the past.
Nice try but irrelevant to the abortion issue. I do favor retroactive abortions in some cases.
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