EQUAL TIME: Right to bear arms is secure

Atlanta Journal-Constitution ^ | 13 May 2002 | Phil Kent

[45Auto]

As amazed as many gun control advocates and liberal legal scholars seem to be, the fact remains that the recent legal brief footnote from U.S. Solicitor General Ted Olson recognizing that the Second Amendment protects the right of all individuals to own firearms is less a radical departure from constitutional analysis than a return to the original intent of the Founding Fathers.

In fact, the entire point of the Bill of Rights is to prevent the government from infringing on individual rights --- speech, voting, press, religion, fair trial, private property and, yes, gun ownership.

The Second Amendment, ground zero for millions of Americans on both sides of the gun control issue, is one of the simplest amendments. "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The so-called "corporate right" of the militia is, in fact, no right at all, but rather a recognition that the state militias and military would play a role in national security.

The right to bear arms, on the other hand, is an individual right that was essential to the wary early Americans. British soldiers, who garrisoned themselves in private colonial homes, sought to disarm the general populace. The citizen army of the American colonies, made up of able-bodied men, relied on individual gun ownership to wage the revolution. According to constitutional historians, it is beyond comprehension that the U.S. Constitution would have been ratified without the Bill of Rights, which includes the Second Amendment.

The Founders' mindset is unequivocal on the issue of individual gun ownership. Consider the well-documented statements: "A free people . . . ought to be armed" (George Washington); "No free man shall ever be debarred from the use of arms" (Thomas Jefferson); "To disarm the people is the best and most effective way to enslave them" (George Mason); and "There is an advantage of being armed, which the Americans possess over the people of every other nation . . . notwithstanding the military establishments of the several kingdoms of Europe." (James Madison). A historically accurate read of the Second Amendment must include the intent of the framers to protect individual gun ownership.

The U.S. Supreme Court's view since the 1939 U.S. v. Miller decision that the Second Amendment protected only those rights that relate to a "well-regulated militia" has been unchallenged since the Roosevelt administration. U.S. Attorney General John Aschcroft's letter to federal prosecutors outlining a more recent decision by a federal appeals court in New Orleans, which was attached to Olson's brief, states that the "balance struck" in the appeals court's decision "generally reflect[s] the correct understanding of the Second Amendment." That letter, and Olson's reference to it, have sparked an unnecessary controversy.

Ashcroft's "position" that individual gun ownership is protected under the Second Amendment is a qualified understanding of the right to keep and bear arms. In keeping with recent court decisions and historical analysis of the U.S. Constitution, Ashcroft makes clear that individual gun ownership 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."

Owning a gun, like voting, voicing an opinion and practicing religion, is not without constitutional limits.

Despite the opinion of the U.S. Supreme Court, at no time since 1939 has the individual right to keep and bear arms been abridged by wholesale government policy. Ashcroft's accurate constitutional reading will help secure that right from those who would willingly abridge it.

Phil Kent is president of the Southeastern Legal Foundation, a constitutional public interest law firm based in Atlanta.

[45Auto]

Phil tries to present a balanced picture; not bad, be he like a lot of people, really cannot completely reconcile the idea that the 2nd is about an unfettered right to possess arms. Still, a nice relatively positive editorial about the RKBA.

[45Auto]

Phil is completely wrong about Miller; he obviously hasn't read the very short court decision. Only the loony gun prohibition lobby forwards the Miller case as "the definitive" case for the collective rights' theory, which is a total fabrication of those who wish to destroy the Republic.

[spodefly]

He does misread Miller. You can read the U.S. v. Miller decision here.

[go star go]

it seems to me that a logical reading of the Miller decision would be that it actually ruled that we can all own M-16(s) because they do bear some resemblance to military arms... :-)

[Eala]

Ashcroft's accurate constitutional reading will help secure that right from those who would willingly abridge it.

No it won't. Remember, there are those to whom the Constitution is a "living" document... which means that it means what they want it to mean. And it's not a foregone conclusion that they're gone forever... Eternal vigilance is necessary.

[BikerTrash]

Of course bearing arms is an individual right. Anyone who argues that fact really, truly, down deep knows that it is, too. Very few could possibly be so stupid as to not know. The Second Ammendment is clear, simple, concise and unambiguous.

But...gun grabbers = liars, so that doesn't stop them.

[sailor4321]

Yes, he is VERY wrong on Miller. Where on earth does he the crazy idea that our gun rights have not been "abridged". Until I was 44 years old (and long after having been trusted with automatic weapons while in the Army), I could go out and buy a new automatic weapon. Since I was 44 years old, my rights to possess automatic weapons have been abridged to include only those automatic weapons which were then legally held by civilians. That is an abridgement. Hells bells, thats an INFRINGEMENT (as in (...shall not be infringed.).

[tahiti]

You are correct.

[sailor4321]

I just sent Mr. Kent the following email. We'll see if he replies

Thank you for your recent remarks in the Atlanta-Journal regarding second amendment rights. Now that a responsible government official and at least one court of appeals has acknowledged the right as "individual" rather than "collective", it may be possible for interested parties to agree on what constitutes "reasonable" gun controls. Perhaps the Fifth Circuit's remarks in Emerson about the need for gun controls to be narrowly construed and tailored to specific, individual circumstances provides a key.

I must confess I was baffled by your comment "Despite the opinion of the U.S. Supreme Court, at no time since 1939 has the individual right to keep and bear arms been abridged by wholesale government policy.", as that right most certainly has bee abridged (i.e., "infringed upon"). To cite only one example, until 1986 private citizens were allowed to buy and possess automatic weapons --- albeit under strict Government supervision and with an annual tax intended to discourage most people. In that year, that form of exercising the second amendment right was limited to those automatic weapons already lawfully possessed by civilians (that is, no new models can be possessed by civilians). It was that scheme of regulation that was "tested" by the Miller case and found, without benefit of plaintiffs making an appearance or even submitting a brief, to be Constitutional.

Now, if the change in the law in 1986 wasn't an abridgement or infringement of second amendment rights, then I'm not sure I know what would be. Would you be so kind as to explain?

[Surrounded_too]

Also, get rid of all the collected information that is usable by some future anti-gun lunatic factions. There is too much evidence being collected on the wrong people and not enough on the right ones.

[sailor4321]

Couldn't agree more. I didn't try to exhaust the subject in the email.

[Reaganwuzthebest]

Now is the time to have the Second Amendment tested. With this conservative Supreme Court, I'd bet the rent money they will interpret it as most of us know it was meant - the right of individuals to keep and bear arms. That will put an end once and for all to the Chucky Schumers and Dick Daleys who want to disarm citizens leaving only the criminals to have them.

[El Gato]

Right to bear arms is secure

And if you believe that there are two towers for sale in Manhattan as well as a nearby bridge, that I could probably sell you. As well I have some nice oceanfront property in Arizona and New Mexico that might be of interest to you.

As long as the like of Shummer(aka Chuckie the Cereal Killer), Fienstein(aka Fineswine) , Boxer, Majors, Blagojevich(aka Blag the impaler), and others, including several RINOs, are in Congress and their fellow travers are in the state legislatures, county boards, and city councils, our arms rights will never be secure.

Eternal Vigilance!

Molon Labe!

[patton]

Signs one has been overly FReeping -

Molon Labe! is a standard call to dinner.

"Hillery" is somehow, a misspelling.

ibid "Daschle"

ibid "Arlen Specter"

One can actually correct the lib spin on Miller.

[El Gato]

Miller decision would be that it actually ruled that we can all own M-16(s) because they do bear some resemblance to military arms

Actually the M-16, even with the M-203 grenade launcher attached, does pass the "Miller test, in that the weapon is "part of the ordinary military equipment" and "its use could contribute to the common defense".

If Miller's lawyer had been present or at least filed a brief, the Court would have been forced to take "judicial notice" that a short barrelled shotgun, the only thing that Miller actually allows regulation of, also passes that test, and in fact such had been put to good in France as "trench brooms" or "trench sweepers", much to the consternation of the Germans, who filed protests against their use, but only on the grounds that they used "dum-dum" projectiles, that is soft lead, rather than plated or very hard lead alloy, which were banned by then existing treaties.

The Court has never ruled on the Constitutionality of the meat of the National Firearms act, that is regulation of private keeping and bearing of fully automatic weapons. It's really too bad Miller wasn't someting more than a two bit bootlegger, trying to get by after the repeal of prohibition, or he might have had a Thompson or a BAR rather than a sawed off shotgun. If nothing else it would have been amusing to watch the Solicitor General try to argue that those weren't "any part of the ordinary military equipment or that" their "use could contribute to the common defense", although I'm sure he'd have tried. :)

None the less, "Miller" stands in direct support of the position of the current Attorney General (Ashcroft) and Solictiter General (Olson) that the 2nd amendment, like the rest of the first 8 amendments, protects an individual right.

[sailor4321]

If it has to be tested now, this is a better time than some other times. But, I'm not sure this is the best time.

To me, the dangerous issue is still the one involving automatic weapons. It was public reaction to the criminal use of Tommy Guns that got us Miller, a clear infringement of our rights (and a VERY strange decision if you actually apply logic to it). I'm not sure I know the right answer, but I think the public would be outraged unless there are some controls on automatic weapons.

[Texasforever]

2nd is about an unfettered right to possess arms. Still, a nice relatively positive editorial about the RKBA.

Well the 2nd amendment doesn’t use "unfettered" but even "Infringe" is fairly unambiguous using the dictionary definition. The debate is going to shift to what acts as an "infringement" Is denying a carry permit to a blind man an infringement? Technically yes, will it matter..no.. The laws using "militia only" as their foundation will probably be overturned , However, the laws regulating the who, what, when, where and how many are more than likly to stay the way they are.

[GovernmentShrinker]

Actually, a lot of court decisions have relied on Miller, claiming it limited gun ownership rights to those arms suited to militia use, AND interpreted the 2nd Amendment as granting only a collective right. No matter that the decision says nothing of the sort, courts have been following this line for decades, and who can blame the gun-grabbers for repeating what the courts told them the law is. The scary thing is, I also keep hearing 2A rights activists referring to Miller as a case that went "against us". When our important rights are being threatened, we all need to get off our butts and actually READ the relevant court decisions.

[GovernmentShrinker]

And rocket-launchers, which are in widespread use by citizen militias (and their enemies) around the world.

[CurlyDave]

Despite the opinion of the U.S. Supreme Court, at no time since 1939 has the individual right to keep and bear arms been abridged by wholesale government policy.

How about Washington, D.C. ?

How about New York City?

How about Chicago?

All of these look like wholesale abridgement to me. Not to mention infringement...