Posted on 07/27/2002 10:11:31 AM PDT by Cato
Who made the following statements?
1. "The broad principle that there is an individual right to bear arms is shared by many Americans, including myself.
I'm of the view that you can't take a broad approach to other rights, such as First Amendment rights,
and then interpret the Second Amendment so narrowly that it could fit in a thimble.
But I'm also of the view that there are limits on those rights.
Just as you can't falsely shout fire in a crowded movie theater,
you can put restrictions on who can own guns and how, when, and where they may be possessed."
___ Attorney General John Ashcroft
___ Solicitor General Theodore Olson
___ President George W. Bush
___ Sen. Charles Schumer
2. "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. Like the First and Fourth Amendments,
the Second Amendment protects the rights of 'the people,' which the Supreme Court has noted is a term of art
that should be interpreted consistently throughout the Bill of Rights.
... Of course, the individual rights view of the Second Amendment does not prohibit Congress
from enacting laws restricting firearms ownership for compelling state interests
... just as the First Amendment does not prohibit [government from legislating against]
shouting 'fire' in a crowded movie theater. "
___ Sen. Dianne Feinstein
___ NRA President Charlton Heston
___ Attorney General John Ashcroft
___ President George W. Bush
Hard to tell, isn't it?
Dedicated Second-Amendment activists may recognize that the second statement was made by
Attorney General John Ashcroft in his famous May 2001 letter to the National Rifle Association.
For this and other support of the pro-individual rights position,
gun owners nationwide cheered Mr. Ashcroft.
But who made the first statement? It exactly reflects Ashcroft's point of view, but it wasn't Ashcroft who said it.
Here's a hint: No pro-gunner ever cheered this speaker.
The statement was made by Sen. Charles Schumer, one of the nation's most vehement
and persistent opponents of firearms ownership,
at a May 2002 press conference in which he criticized Attorney General Ashcroft,
not for his views, but merely for his means of expressing them.
Similarly, at his confirmation hearings, Ashcroft admitted he agreed with
and would enforce all the restrictions on firearms ownership
Sen. Schumer has worked so hard to impose over the years.
And in May 2002, immediately after the Justice Department filed a Supreme Court
brief claiming the individual rights position as its official policy,
Ashcroft said on "Larry King Live" that he fully supported the Brady Law,
calling it a "reasonable regulation".
In their verbal sparring, Ashcroft and Schumer look like fierce opponents.
Yet they express precisely the same viewpoints.
They advocate stringent enforcement of precisely the same laws.
So where is the difference between the two?
And if Second-Amendment supporters have achieved such a victory with the individual-rights position
(rather than the "militia rights" or "states' rights" position) being voiced in high places,
why are our opponents suddenly proclaiming individual rights while still working to destroy gun ownership?
And why are our "friends" doing exactly the same thing?
As the following examples show, what these politicians and lobbyists proclaim
and what they do are universes apart.
Case in point: Project Safe Neighborhoods
Which presidential administration called for appointment of 700 state and federal prosecutors
whose sole responsibility is to prosecute "gun crimes"?
We're not talking about crimes of violence,
but about miscarriages of justice like these:
Dane Yirkovsky came across a single .22 cartridge while laying carpet, pocketed it, and apparently forgot it.
Because he had previous burglary convictions, he was a "felon in possession of ammunition."
Fifteen years of his life are being wiped away by a mandatory minimum federal sentence.
Katica Crippen went to federal prison for posing for photos holding her boyfriend's firearm.
Crippen, with a previous drug conviction, was another "felon in possession."
Michael Maloney had a youthful drug conviction,
but had cleaned up his act, undergone extensive background checks to get a liquor license,
and believed his felony record was expunged.
So when he bought a .22 to protect himself when making late-night cash deposits at the bank,
he checked No when asked if he was a felon. The BATF disagreed --
and Maloney got a 15-year mandatory-minimum sentence over the protest of the judge who sentenced him.
Candisha Robinson sold illegal drugs to undercover officers.
Because the officers later found an unloaded gun locked in a trunk in her closet,
federal prosecutors charged Robinson with "using" a gun while committing a drug crime. (Oh Boy!)
Prosecutions such as these are not only a grave injustice to the victims.
They are not only destroying trust in the entire justice system.
They are not only costing taxpayers a fortune.
They divert otherwise ordinary criminal prosecutions from state courts to federal courts.
Federalizing of criminal prosecutions is a dangerous process
that further undermines the Constitution by expanding federal government authority
far beyond the tiny handful of constitutionally-defined federal crimes such as treason.
It wasn't the Clinton administration that called for more prosecutions like these.
It wasn't the Clinton administration that created hundreds more prosecutors
for the sole purpose of imprisoning thousands more non-violent gun owners.
It's the allegedly pro-gun George W. Bush administration,
in its Project Safe Neighborhoods.
The Bush administration's fact sheet for Project Safe Neighborhoods also says,
"In addition to strict enforcement of existing gun laws,
the President supports expanding instant background checks
to close the gun show loophole and
banning the importation of high-capacity ammunition clips."
In other words, we ain't seen nothin' yet.
President Bush wants even more laws that violate the Second Amendment.
____________________________________________
For more, see our sidebar article "What's a Compelling State Interest? What's a Felon?" (Below)
What's a Compelling State Interest? What's a Felon?
In his famous, and widely cheered, letter to the National Rifle Association,
Attorney General John Ashcroft made the caveat that gun ownership can be restricted for "compelling state interests."
But what, in this day of omnipresent government, does that mean?
Note that Ashcroft did not say "protection of innocent people against violent criminals."
In theory, when evaluating a law that seems to infringe on a fundamental right,
judges are supposed to examine whether the law in question is narrowly tailored to advance a truly "compelling state interest."
Great injustice may be permitted, but only in a great cause.
For example, during World War II, the Supreme Court ruled that internment of Japanese-Americans
was allowable because of a "compelling state interest"
-- the preservation of the nation in wartime.
It was a decision that seems outrageous to most of us now,
but was widely supported amid the tension of the war.
Other laws, that don't affect fundamental rights,
are tested for whether they "reasonably" advance a "legitimate" state objective.
As we see every day, there's virtually nothing the government doesn't consider its own "legitimate" objective
-- such things as:
Forcing us to wear seatbelts
Regulating how we can landscape our own properties
Deciding whom we can hire to fix our roof
Determining what substances we can put into our own bodies and
Determining exactly what our children must be taught.
Where the courts will draw the line on the Second Amendment remains to be seen;
for most of the last century, judges have treated the individual right
to own firearms as if it simply didn't exist.
Only in the last few years have we seen even minimally favorable decisions (in the Emerson case).
Given today's climate of government supremacy,
there is still no adamant principle to prevent courts from deciding
that the state has a "compelling interest" in "preventing an epidemic of gun violence,"
"protecting children" against firearms,
tracking all citizens who own firearms (for "public safety"),
requiring firearms to be locked up in a secure storage facility, etc., etc.,etc.
One thing we know for certain:
It's clear (as the accompanying article shows), that both "right-" and "left-wing" politicians
consider any restriction on firearms ownership to be compelling and in their interest.
______________________________________________________
In another portion of his statement to the NRA, Ashcroft gave, as an example of "compelling state interests,"
the authority to forbid convicted felons from owning firearms.
But again, government mission creep makes even this reasonable- sounding authority far more dangerous than it appears.
When felons were first forbidden to own firearms, a person usually had to commit terrible, violent criminal deeds to become a felon.
Now you can make an error on EPA or IRS paperwork and be forbidden forever to own firearms --
without the slightest suspicion that you are a threat to anyone.
Indeed, when reporter David Holthouse examined every prosecution made under Colorado's Project Exile
(a forerunner to the Bush administration's Project Safe Neighborhoods),
he discovered that 154 of the 191 "gun criminals" targeted had no violent criminal records at all
and two were merely illegal aliens (a civil offense) with no criminal record of any sort.2
The Clinton administration was ruthless about passing laws, but lax about enforcing them.
It takes a law-and-order Republican administration --
enthusiastically backed by organizations like the National Rifle Association
-- to carry out the Democrats' dirty work.
This is what Margaret Thatcher described at the "ratcheting process,"
in which a "left-wing" government pushes through policies that were previously intolerable to the people,
and a "right-wing" government then enforces policies it once ardently opposed
after those policies have become business-as-usual.
It hardly matters whether the ratcheting loss of Second-Amendment rights
is a deliberate plot or merely the product of the prevailing political mindset
that "government should do whatever it thinks necessary, regardless of the Constitution."
The result is the continuing loss of liberty
--and in the case of Project Safe Neighborhoods, vastly increased danger of punishment for gun owners.
Americans for Gun Safety also says it supports the individual-rights position on the Second Amendment.
This group, which appeared suddenly on the scene about two years ago,
initially positioned itself as an "educational group."
It said it had no political agenda.
It said (we paraphrase): "Let's face the fact that Americans have an absolute right to keep and bear arms;
let's simply make gun ownership safer."
But from its beginnings, AGS (founded by Andrew McKelvey, multimillionaire founder of Monster.com)
threw millions into political campaigns to "end the gun- show loophole"
-- politician-speak for having the federal government regulate and track all private sales of firearms.
AGS helped pass state laws in Oregon and Colorado to achieve that goal.
And AGS and Sen. John McCain, another ardent gun prohibitionist,
have been as thick as thieves in a so-far unsuccessful attempt to impose Brady tracking,
government databases, and waiting periods
(which still exist despite the alleged "instant-check system") on private firearms sales nationwide.
AGS no longer pretends to be merely an "educational" group.
While showing happy gun hobbyists as a background image on its Web site,
its entire aim is to discourage gun ownership by making it more difficult to purchase firearms,
and to hand the government the name of every person in the nation who ever legally purchases a gun.
(Criminals will still buy untraced firearms while their law-abiding brethren submit to government scrutiny.)
All the while, the proponents of waiting periods, citizen-tracking, unsafe "safety" measures,
and arbitrary restrictions on the manufacture and ownership of firearms sanctimoniously claim
they believe wholeheartedly in the individual right to keep and bear arms.
Just like John Ashcroft.
Just like Bush administration Solicitor General Theodore Olson.
Just like Charles Schumer.
As Sarah Brady always claimed, all they want is "a few reasonable restrictions."
From Ashcroft to Schumer, they devoutly respect our individual right to keep and bear arms,
except for a few harmless little limitations like:
Not allowing us to buy inexpensive handguns ("Saturday-night specials")
Not allowing us to buy handguns with high-capacity magazines
Not allowing us to buy short-barreled shotguns
Not allowing us to buy semi-automatic rifles with a military appearance
Not allowing us to buy fully automatic firearms --
or being able to buy them only at exorbitant prices and
after paying exorbitant taxes to the government
Forbidding us to own guns if we're one of the millions of non-violent felons
Forbidding us to own guns if we've ever (even decades ago)
been convicted of a large group of misdemeanors
Forbidding us to buy guns if the FBI's "instant-check" system is down
Forbidding us to buy guns if we won't give a social security number
Forbidding us to defend ourselves with firearms on airplanes,
in courthouses, and hundreds of other public places
Forbidding trained schoolteachers, principals, or parents
from defending school children against Columbine-style rampages
Forcing us to keep our guns locked away or disabled in our homes
so we can't use them against a violent attacker
Forcing us to beg government permission and submit to fingerprinting
and criminal background checks to carry a handgun
(IF they allow us to carry one at all)
Wanting us to tremble before 700 special prosecutors whose sole mission
is to arrest and jail people like us.
It doesn't matter what they say either.
The individual rights position is now referred to by legal scholars as "the standard model."
Virtually no serious scholar now gives credence to the "state's rights" or "militia rights" position
from which opponents of gun ownership claimed their authority for so many years.
Are we better off because the individual-rights interpretation now prevails?
We should be, because the change represents a tremendous philosophical shift in the direction of honesty and liberty.
To whatever extent courts in the future may use that interpretation to throw out outrageous anti-gun laws
and the convictions based on them, we will be better off.
But we are not better off as long as politicians and lobbyists succeed in cynically using the individual-rights position
to pursue their old, familiar goals of limiting firearms ownership and punishing firearms owners for harmless,
technical violations of obscure laws. And those are the straits we're in now.
If we are foolish enough to keep paying attention to what they say, rather than what they do,
their cynical misuse of our trust and the English language will have no limit.
And neither will the injustice they can impose.
In his famous, and widely cheered, letter to the National Rifle Association,
But what, in this day of omnipresent government, does that mean?
Note that Ashcroft did not say "protection of innocent people against violent criminals."
In theory, when evaluating a law that seems to infringe on a fundamental right,
judges are supposed to examine whether the law in question is narrowly tailored to advance a truly "compelling state interest."
Great injustice may be permitted, but only in a great cause.
For example, during World War II, the Supreme Court ruled that internment of Japanese-Americans
was allowable because of a "compelling state interest" -- the preservation of the nation in wartime.
It was a decision that seems outrageous to most of us now,
but was widely supported amid the tension of the war.
Other laws, that don't affect fundamental rights,
are tested for whether they "reasonably" advance a "legitimate" state objective.
As we see every day, there's virtually nothing the government doesn't consider its own "legitimate" objective
-- such things as:
Forcing us to wear seatbelts
Regulating how we can landscape our own properties
Deciding whom we can hire to fix our roof
Determining what substances we can put into our own bodies and
Determining exactly what our children must be taught.
Where the courts will draw the line on the Second Amendment remains to be seen;
for most of the last century, judges have treated the individual right to own firearms as if it simply didn't exist.
Only in the last few years have we seen even minimally favorable decisions (in the Emerson case).
Given today's climate of government supremacy,
there is still no adamant principle
to prevent courts from deciding that the state
has a "compelling interest" in "preventing an epidemic of gun violence,"
"protecting children" against firearms, tracking all citizens who own firearms (for "public safety"),
requiring firearms to be locked up in a secure storage facility, etc., etc.,etc.
One thing we know for certain:
It's clear (as the accompanying article shows), that both "right-" and "left-wing" politicians
consider any restriction on firearms ownership to be compelling and in their interest.
In another portion of his statement to the NRA, Ashcroft gave, as an example of "compelling state interests,"
the authority to forbid convicted felons from owning firearms.
But again, government mission creep makes even this reasonable-sounding authority
far more dangerous than it appears.
When felons were first forbidden to own firearms, a person usually had to commit terrible,
violent criminal deeds to become a felon.
Now you can make an error on EPA or IRS paperwork and be forbidden forever to own firearms --
without the slightest suspicion that you are a threat to anyone.
Indeed, when reporter David Holthouse examined every prosecution made under Colorado's Project Exile
(a forerunner to the Bush administration's Project Safe Neighborhoods),
he discovered that 154 of the 191 "gun criminals" targeted had no violent criminal records at all
and two were merely illegal aliens (a civil offense) with no criminal record of any sort.
__________________________________________________________________________________________________________________Footnotes
1. Examples are from a Cato Institute study,
"There Goes the Neighborhood: The Bush-Ashcroft Plan to 'Help' Localities Fight Gun Crime," by Gene Healy, issued May 28, 2002
(http://www.cato.org/pubs/pas/pa-440es.html),
and from "More Injustice on the Way" a June 12, 2002 column by Paul Craig Roberts
(http://www.newsmax.com/commentarchive.shtml?
a=2002/6/11/203057)
2. Cato, pg. 10.
© 2002 Aaron Zelman. Permission is granted to distribute this article in its entirety,
so long as full copyright information and full contact information is given for JPFO.
Published by:
Jews For The Preservation of Firearms Ownership, Inc. P.O. Box 270143 Hartford, WI 53027
Phone (262) 673-9745 Fax: (262) 673-9746 http://www.jpfo.org
--------------------------------------------------------------------------------
read The State vs. the People: The Rise of the American Police State,
by Claire Wolfe and Aaron Zelman.
(http://www.jpfo.org/tsvtp.htm)
Second-Amendment Setup: What They Say Isn't What You Get © 2002 JPFO < webmaster@jpfo.org >
In 1791, there wasn't a single civilian prison in any of the states. People who violated the law were punished by flogging, spending some time in the stocks or a fine. Violent criminals were hanged.
So, as written, the 2nd Amendment protects the rights of prisoners currently incarcerated to have weapons while in Federal prison. Which is fitting, since most of them have weapons anyway.
This should have been changed when the Federal prison system was introduced. If we are going to completely abandon flogging as a punishment (and only Delaware still has flogging on the books as a punishment) then we need an a new amendment to allow for all free citizens to keep and bear arms.
As a bonus, this will quickly demonstrate to the public exactly what the prison system is, state-sponsored slavery for those people who run afoul of one of the 80,000 Federal laws on the books.
Of course, the quick fix is to make all crimes punishible by death. Then allow criminals to temporarily give up their right to bear arms while they are incarcerated.
No confusion. A "felon" is (presumably) a person tried and convicted of a felony. Hence, he's in prison.
Otherwise, he's paid his debt to society and all that, so why are you slapping this label on him? If we let a "felon" out of prison then (presumably) he's no longer a danger to society, so there's no problem restoring his rights. Tell me where I go wrong in this thinking.
BTW, to those who say that 2nd Amendment rights may not be infringed in any case, I like to ask about convicts, those actually in prison.
Thus missing the point. Of course the rights of convicts may be infringed, else we wouldn't even be able to lock 'em up in the first place! Even the most diehard gun-rights absolutist excludes convicts from his consideration, and you know it. The worst a person who says "shall not be infringed in any case" is guilty of is (slightly) sloppy use of language. But you catch 'em on it, congratulations.
... just as the First Amendment does not prohibit [government from legislating against] shouting 'fire' in a crowded movie theater.
Yes! I can falsely shout fire in a crowded movie theater. However, I would expect that I would be prosecuted for causing a disturbance, malicious mischief, or, should someone become injured as a result, reckless endangerment perhaps. In a free society, I would NOT expect to have to show ID (assuming I'm an adult), register with the BMC (Bureau of Moviegoers Control), have my background checked to see if I have ever shouted 'Fire!' in a theater before, wait thirty minutes for any road rage to subside, or wear duct tape over my mouth before being allowed to purchase a ticket.
I didn't say "no more crimes" - no one can guarantee that any group of people can commit "no" crimes whatsoever. But you are partially right that implicit in my argument is that, surely, we wouldn't let people out of jail unless they were no longer a serious threat to society. Surely we'd have long enough sentences, and a wise enough parole policy, to prevent this.
Of course, if we don't, then all bets are off. But what that means is that we ought to increase sentences and alter policy in order to keep dangerous convicts in prison. It doesn't mean that we should sigh and throw up our hands and say "well, they're out. Let's create two classes of citizenry, then." I disagree with the latter approach.
Perhaps a solution to this could be the restoration of rights after a probationary period following release.
Still smells funny to me. Are they free or aren't they? Why are we letting these people out of jail in the first place if we can't trust them with their rights? You keep missing the obvious solution: keep dangerous people in prison where they belong.
One might ask at that point, even the ones that say you cannot operate an open air, high powered rifle range on your 1/4 acre suburban homesite? You mean the ones that say you cannot coop your local park as a skeet range on the weekends?
I don't know if there are laws specifically forbidding this, but assuming that they are, at best they seem redundant. Aren't there already laws against reckless endangerment, about how public lands can be used, and the like?
In fact I agree with the substance of what you say about absolutist arguments, but "not absolutist" can mean different things to different people. I'd prefer to say that yes, you're right, "shall not be infringed, ever" is wrong - but: the only exceptions to it are obvious, trivial ones (don't hand guns to convicts), and they do not affect the core truth of the statement.
The other exceptions you mention are not even infringements of "gun rights" per se, because (in a broader sense) they represent a depraved indifference to the lives of others and are a reckless endangerment to society and all that. And no one has the "right" to recklessly endanger others in the first place, so the argument is a red herring.
You have a good analogy, but if you examine it logically, your argument supports my argument, it doesn't break it down.
Look at it like this:
The second amendment applies to all citizens everywhere and prohibits government from taking your weapons. The fact that prisons came along later does not mean that you can make an exception and take weapons away from prisoners.
The first amendment applies to all citizens everywhere and prohibits government from censoring the press. The fact that electronic press came along later does not meant that you can make an exception and censor electronic media.
The fact that electronic media is safe from government censorship simply proves the point. So, why one and not the other?
The constitutional amendments prohibit government interference in our lives. It doesn't matter what methods we use in our lives, it still prohibits government from interfering. The government can add things to the list of guaranteed freedoms, but it cannot take away any freedoms without amending the constitution.
If our lives change sufficiently that the guarantees in the constitution interfere with life, then either we abandon the changes or we amend the constitution.
We don't look the other way and pretend the impasse doesn't exist.
A good amendment to allow the prison system to disarm prisoners would read something like this:
Congress shall have the authority to restrict the keeping and bearing of arms to persons while they are being held awaiting trial or, upon conviction, while they are incarcerated. This amendment shall not be construed to deprive any free citizen of his right to keep and bear arms.
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