Gunning Down The 2nd Amendment (Major Hurl!) More Bias from CBS News

CBS) In his latest Against the Grain commentary, CBSNews.com's Dick Meyer draws a bead on the Second 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.”

Most Americans think that the Second Amendment of the Constitution provides individual citizens the right to have guns. (Which is not to say that most Americans believe that there should be a right to keep arms.)

Very, very few judges, prosecutors or government lawyers over the past 60 years (at least)have officially taken the position that an individual right to own guns exists. The normal, reigning judicial view, the one that is essentially settled law, is that the right to bear arms pertains only to the right of states form collective defenses or "well regulated militias." This is not a controversial area of the law. No gun control laws have been declared unconstitutional by courts because they violated an individual rights to bear arms.

In politics, gun control advocates believe there is only a collective right to bear arms. Gun control opponents believe citizens have a right to keep arms every bit as profound as the rights of free speech, free assembly and free worship. These are matters of civic religion.

Modern scholars and constitutional lawyers are divided on the 200 year-old question of whether the Second Amendment provides an "individual" or "collective" right, and there is no shortage of vehemence on both sides.

The NRA has bankrolled the production warehouse full of individual right scholarship -- and propaganda. However, some very independent and liberal scholars have reexamined the debate, which has really been an academic non-issue for a century, and came out on the individual rights side. It's like the nature vs. nurture debate: there ain't gonna be a winner.

Attorney General John Ashcroft, entrusted with collective security for the world's most powerful country, wants to settle the question once and for all, in a way that would eventually make it easier for individuals to have guns. Alien scientists and foreign anthropologists would be fairly mystified by this anti-Darwinian state of affairs.

Ashcroft has always believed in the individual right to have guns. His Justice Department, in an extreme break from what judges and presidents have done for decades, is trying to establish that view of the Second Amendment as the law of the land in order to eventually rein in federal, state and local gun control laws.

In footnotes to court briefing filed this week, Ashcroft’s solicitor general flatly asserted that, "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." (Remember, attorneys general don’t make law; judges and Congress do.)

This was expected. Last May, the new attorney general declared his position not in a legal brief, not in congressional testimony, but in a letter to an interest group, the National Rifle Association. In November, Ashcroft reiterated his view in a memo to U.S. attorneys across the country.

Now another round has been fired. And there are a few federal judges shooting at the same target. Second Amendment law has moved like a glacier for more than a century. The Supreme Court last dealt with the issue directly in 1939 when it clearly backed they collective, no-individual right position. Now that glacier is under a sun lamp and it’s melting fast.

So the time for pussy footing around is over. It’s time to repeal the Second Amendment. Bag it.

What the founders intended is unknowable. Objective truth about the meaning of the Second Amendment does not exist. Practical consensus about its meaning will not endure. The concept of "well regulated militia" is an anachronism in the 21st century.

So let’s get rid of it and address the life and death issues of gun control directly, away from the shadows and phantoms of civic theology. We do just that with other extremely dangerous mechanical devices that individuals use -- cars, boats, airplanes.

At least one key player in this battle thinks tinkering with the Constitution is no big deal -- John Ashcroft. During his six years in the Senate, he sponsored seven constitutional amendments -- a ban on abortion, a ban of flag burning, for a line-item veto, mandated balanced-budgets, super-majorities for tax increases, term limits and an amendment to make it easier to amend the Constitution.

Dick Meyer, a veteran political and investigative producer for CBS News, is Editorial Director of CBSNews.com based in Washington.

This collective rights nonsense has been so thoroughly debunked that it's not worth the bandwidth to repeat all of the specifics. (Go to Clayton Cramer's page, Instapundit or The Volokh Conspiracy for no end of evidence against this stupid view.) It simply isn't true. The handful of courts that have voiced this opinion are an anomoly in American jurisprudence. The Individual Right view as expressed by the Ashcroft Justice Department is the prevailing view of modern legal scholarship.

The author contradicts himself when he claims that the collective rights view is the proper interpretation of the 2nd Amendment, but then calls for its repeal. If that view were correct, then repealling the Amendment would be unnecessary as no gun control law on the books violates that interpretation. He obviously accepts the individual right argument himself if he feels that the Amendment must be repealed to further the cause of gun control.

"The Supreme Court last dealt with the issue directly in 1939 when it clearly backed they collective, no-individual right position."

This, too, is an outright lie. The US Supreme Court did no such thing and the lying S of a B knows it.

When a Supreme Court decision is published, it is accompanied by a syllabus which is written by court staff--not by the justices themselves and which is supposed to give the gist of a decision but carries no legal weight. Unfortunately, the published syllabus for U.S. v. Miller does not accurately reflect certain key aspects of the decision, and seems to have been cited in some cases where it disagrees with what the actual decision says.

Contrary to what many people have been led to believe, neither Miller nor his co-defendant Layton were ever convicted of carrying a short-barreled shotgun. The Supreme Court did not uphold their conviction because there was no conviction to uphold. All the Court did was allow the government to bring its case when the government claimed that it could show that a sawed-off shotgun is not a suitable militia weapon. Had the government not plea-bargained away the charges for Frank Layton it would have had to have proved the impossible. Instead, however, the government declared victory and went home.

It's interesting that the government 'won' its case against Miller and Layton while plea-bargaining for nothing beyond time served. Of course, most of us would think that an odd form of 'winning'.

Where does this right come from?

The Second Amendment does not "grant" the right to keep and bear arms, but rather protects it from unsurpation. The right has deep roots in English common law and is related to the common law of self-defense. The battles of Lexington and Concord in 1775 represented a firm stand taken by the colonists against confiscation of their arms by British soldiers. 49 colonists died in those battles, so this obviously was not a trivial matter to them.

Why is it part of the Bill of Rights?

When the Bill of Rights was adopted in 1791, the infringement by a strong government upon their right to bear arms was fresh in the minds of our Founders, so they explicitly prohibited their new federal government from repeating this travesty. Or so they thought....
In recent decades, this right has been as much under attack as it was in 1775. Though no "redcoated" federal troops march through our towns (yet!), overzealous presidents and misguided members of Congress have sought to accomplish the same objective, step-by-step. And thanks to courts sympathetic to their crusade, the erosion of our rights is proceeding.

Why is gun ownership a key to freedom?

The freedom of the individual, the peace of the community, and the independence of the state all depend upon a substantial portion of the adult population having firearms. It is a hallmark of society in a constitutional republic that citizens have rights and responsibilities. Ownership of a well-maintained firearm is not only a right, it is a responsibility.

Responsibility? For what purpose?

Again, looking at the common law for guidance, the family, as a basic unit of society, has the "primary" responsibilty for certain functions, including its material support, the religious and practical education of its members, and "self protection". Since everyone must sleep or leave home on occasion, people have delegated others, primarily their local police, to supplement their own self-protection. But this does not relieve the head of the household from protecting his own family, nor does it excuse him from assisting his neighbors- when necessary- in the protection of the community at large.
But the Founders had more critical issues in mind when writing the Second Amendment. Richard Henry Lee said: "To preserve liberty, it is essential that the whole body of the people always possess arms." Lee knew that possession of arms by the people provides a roadblock to government officials intoxicated by power, a force to repel invaders, and protection from civil turmoil and anarchy.

Those who say that the 2nd Amendment pertains not to the people- but only to the National Guard- ignore the fact that the other nine amendments in the Bill of Rights are not so limited. Besides, the Bill of Rights does not grant rights- it prohibits government from intruding upon them.
"Gun rights" and all other rights go hand in hand. One cannot defend just one right. A government powerful enough to curtail one right can deny all others!

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