Posted on 06/10/2002 7:30:54 AM PDT by Dog Gone
WASHINGTON (AP) -- The Supreme Court said Monday it will not hear two cases that would have offered a test of the Bush administration's newly articulated position that the Constitution protects an individual's right to own guns.
Without comment, the court turned down two men convicted of violating federal gun laws. The men had argued that the laws are unconstitutional because the Second Amendment gives Americans the right to ``keep and bear arms.''
The cases marked the first time that the Bush administration had told the Supreme Court that it has reversed a decades-old policy on the Second Amendment. Until now, the government has said the amendment protects a collective, not an individual, right to gun ownership.
The distinction is important, because gun laws necessarily restrict individual rights.
The administration also said its new position does not undermine federal gun laws, because the Second Amendment right is still subject to ``reasonable restrictions.''
Using that rationale, the administration urged the high court not to accept the appeals of Timothy Joe Emerson and John Lee Haney. Both were properly convicted of violating laws the administration considers reasonable limitations of the gun right, Solicitor General Theodore Olson said.
The Second Amendment reads, ``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 Supreme Court interpreted that in 1939 as a protection of militia rights, not of individual ones. Decades of Justice Department policy rested on that interpretation, which preceded most federal laws regulating who may own what type of gun.
``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,'' Olson wrote in footnotes attached to filings in the Emerson and Haney cases.
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,'' Olson wrote last month.
Olson, the administration's top Supreme Court lawyer, was reflecting a view that Attorney General John Ashcroft had voiced last year in a letter to the National Rifle Association.
``The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear arms,'' Ashcroft wrote then.
At the time 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 appeals court 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 Emerson, a Texas physician, 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,'' Ashcroft told prosecutors.
The appeals put the Justice Department in an awkward position. Although the government won both cases in lower courts using the old interpretation of the Second Amendment, Ashcroft had switched gears by the time the appeals reached the high court.
The cases are Emerson v. United States, 01-8780 and Haney v. United States, 01-8272.
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Thanks for nothing Mr. Ashcroft.
Ashcroft is a two-faced prick and holds our constitution in contempt when it doesn't suit his purposes.
That statement he put out about "individual rights" was a bunch of BS lip service, when it comes to the rubber meeting the road we get the shaft.
Hear this folks. From now on any time soneone wants all of you firearms stolen from you, all they have to do is get restraining order, just as Lautenberg wanted.
That would be news to the folks at the Second Ammendment Foudation that are footing Emerson's legal bills and have been the ones supporting him all along. Nothing against the NRA as I'm a member and signed up all my siblings but let's give credit where credit is due.
This is not a total loss as the SCOTUS, by denying to hear the appeal, they have affirmed the appeals court ruling which recognized the individual right. It would have been nicer if they had done it themselves but I'll settle for this for now.
Flood them with letters and let them know that gun owners are watching.
Substantive questions should be directed, in writing, to the Public Information Officer, Supreme Court of the United States, Washington, DC 20543
Mike
The correct summary (unlike the oft-repated lie) is that the Miller court held that an individual was not guaranteed the right to possess a gun for which there was no evidence that it had military use.
More simply put, it found an individual right to own militarily-useful weapons.
Again with this lie. It was (1) not a Supreme Court decision, but an appellate court decision never appealed to the SC; (2) not a decision of anyone's rights, but applicable to weapons, not people; (3) the mantra we've been hearing for the last year or so. There is no real excuse for this - the AP knows better. Arrant propaganda.
The other legal development of note is Solicitor General Theodore Olson's brief opposing Supreme Court review of the Fifth Circuit's decision in United States v. Emerson. Emerson was charged violating a federal law banning possession of guns by those who had been put under restraining orders by state courts (in this case, because of threats made in a domestic dispute). The District Court ruled that the government's prosecution violated Emerson's right to bear arms under the Second Amendment. The Fifth Circuit reversed, but not before writing an extensive opinion reviewing Second Amendment scholarship. Judge Samuel Garwood, writing for two of the three judges on the panel, wrote that the Second Amendment gives citizens an "individual right" to bear arms. But he ruled that "that does not mean that those rights may never be subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." (I have written previously on this case: http://www.usnews.com /usnews/opinion/baroneweb/mb_011019.htm.) In this case, he easily found the federal restriction reasonable; the state court had after all found that Emerson was a dangerous character.For that reason, Solicitor General Olson argues that the Court shouldn't take this case, and it seems unlikely to do so. But in the process Olson also announced, in a footnote, a change in the government's view of the Second Amendment. "The 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 firearms that are particularly suited to criminal misuse." This was, undeniably, a change in position for the government. For many years, since the Supreme Court's 1939 decision in United States v. Miller (its only pronouncement in the 20th century on the Second Amendment), the Justice Department and many lower federal courts have opined that the Second Amendment protects only a "collective right" to bear arms–you can bear arms as a member of the National Guard, but not as a citizen. This was based on the wording of the Amendment: "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 only problem with that interpretation, fastened upon by bien pensant liberals as a justification for any kind of gun control law, is that it is clearly wrong. It is not even the ruling of the Miller court. The militia, in the understanding of the 18th-century framers of the Constitution, consisted of the whole body of free males ready to spring into action to protect their life and property. The Miller Court recognized this: "The Militia comprised all males physically capable of acting in concert for the common defense." What Miller did was to uphold a federal law banning sawed-off shotguns–the sort of weapon, one might reasonably think, described by Olson's brief as not having Second Amendment protection ("firearms that are particularly suited to criminal misuse.") Olson's brief is thus entirely consistent with Miller. What is inconsistent with Miller is the line of federal cases stating that the Second Amendment protects only a collective right to bear arms.
Recent legal scholarship has made mincemeat of the theory that the Second Amendment confers only a collective right to bear arms. Nor does all this scholarship come from opponents of gun control. A pioneer were was Sanford Levinson of the University of Texas, whose 1988 article was entitled "The Embarrassing Second Amendment"; Levinson supports gun control and would like to see the Second Amendment repealed, but he admits that it creates an individual right to bear arms.
The Supreme Court is not likely to hear the Emerson case; the Fifth Circuit's result was clearly correct and is the same whatever view you take of the Second Amendment. Moreover, much of Judge Garwood's opinion is dictum, as a concurring judge pointed out. Yet it is a convenient summary of the legal scholarship of the last two decades which makes an overwhelmingly powerful case that the Second Amendment creates an individual right to bear arms–not a right that overturns every gun control law, but one which stands in the way of a British-style law banning private possession of firearms and one which might invalidate some existing laws, notably the District of Columbia's near-complete ban of possession of handguns. It is an opinion that is impossible to ignore, and which may be cited by defendants in gun possession cases, one of which may some day make its way to the Supreme Court. Indeed, it may deter prosecutions under laws like the District of Columbia's, for fear the laws will be thrown out. The reaction to the Sixth Circuit case and Solicitor General Olson's brief was fierce from the custodians of bien pensant liberal opinion, as exemplified by editorials in the New York Times and the (usually much more thoughtful) Washington Post. The Sixth Circuit's approval of racial quotas and preferences was applauded, and Judge Boggs's powerful dissent ignored. Solicitor General Olson was excoriated for changing the government's position, with not a mention of the growing body of evidence that his position is right and the position of previous administrations (of both parties) wrong.
But these strong arguments against bien pensant liberal opinion cannot be evaded forever. The flimsiness of the arguments for the constitutionality of university racial quotas and preferences and the collective rights theory of the Second Amendment stand revealed. It is interesting that institutions–the University of Michigan Law School, no less–are willing to insist on policies of dubious constitutionality. In the interests of policies that supposedly are of overriding public good–racial quotas and preference, gun control laws–bien pensant liberals have been willing to ignore serious arguments that those policies violate the Fourteenth and Second Amendments. But they may not be able to ignore them much longer. The lawlessness of today's racial quota and gun control liberals may be coming under serious challenge.
Exactly. and if there were any Intelligent 2nd Amend. lawyers out there, they would wait until a Prosecutor advances the erroneous Miller finding, then, having established Military usefulness, advance the correct one.
The truth about the 2nd Amendment, Part 1
The truth about the 2nd Amendment, Part 2: Milita history as the founders knew it.
Haney, as I recall, is a particularly bad fact situation.
I think what we have now is a situation very much akin to the one the Founding Fathers faced with regard to slavery. They knew that slavery was inconsistent with the principles of the Constitution. They simply didn't know how to deal with it and maintain the Union.
I think Ashcroft and the administration know their position flies in the face of many of the gun laws now in place. They also know it would be political suicide to simply abolish all gun laws (remember, it was public outrage that started this gun regulation stuff with the 1934 law and most Americans believe simultaneously that we have an individual right and that some "reasonable" regulation is appropriate).
The question now is who is going to take the AG's stated position and develop from it an overall plan that sets forth what principles should apply to gun regulations and specifies what gun regulations there should be (and, implicitly, which should go). Will it be somebody who is anti-gun or somebody who is pro-gun?
I still don't understand why anyone is so thrilled with the Emerson ruling. Lip service is all the individual right view got, after all. No federal law has ever been overturned on 2nd Amendment grounds.
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