Bush Lawyers Target Gun Control's Legal Rationale (WSt.Journal)

[skippythwndrdog]

http://online.wsj.com/public/article/0,,SB110505856950619585,00.html?mod=todays%5Ffree%5Ffeature


This is bizarre, I'm actually agreeing whole heartedly with the bush administration on something. It must mean the apocalypse is near. I think some apocalypso music is in order. On edit: Could this be payback for gun owners?

[Sandpiper]

1. Typical gun nut legal reasoning

Ignore the first half of the amendment, only pay attention to the second.

[jody]

2. The Bush position is unnecessary because SCOTUS had two perfect

cases on the 2nd Amendment and refused to hear them.

The petition for Writ of Certiorari in U.S. v. Emerson, 99-10331 (5th Cir. 2001) was denied by SCOTUS on 10 June 02.

The petition for Writ of Certiorari in Silveira v. Lockyer, 01-15098 (9th Cir. 2002) was denied by SCOTUS on 1 Dec 03.

One conjecture however is that SCOTUS was waiting for more judges who would support an individual RKBA interpretation to avoid a 5-4 decision.

[vpigrad]

3. You misread it!

> I'm actually agreeing whole heartedly with the bush administration

WTF! You misread it. It stated that, " grants individuals nearly unrestricted access to firearms." That's obviously not true and it is morally wrong. Those of us that believe in safety rather than violence are fighting him on his ridiculous and dangerous stand.

[jody]

4. I believe the thread author read it correct. Many DU members support

the right of every law abiding citizen to keep and bear arms to use in exercising their inalienable right to defend self and property. I believe the most recent poll of DU members found that over 60% supported that position.

[Spinzonner]

5. Self-select and non-random polls

are worse than useless in reflecting public opinion at large.

You really ought to know - or at least acknowledge since you probably know - that fact.

[jody]

8. I should have said over 60% of the respondents support RKBA.

Have a nice day.
:hi:

[Lefty48197]

22. Oh heck let's just let "respondants" speak for us

.

[jody]

23. Touché re spelling of "respondants".

:hi:

[skippythwndrdog]

6. Read it perfectly.

That is my position.

[benEzra]

15. We sure as heck don't have "nearly unrestricted access"

to firearms in THIS country. At least not those of us who obey Federal firearms laws. That was the reporter's spin on it, but obviously the reporter is not familiar with Federal firearms law...

Not only are automatic weapons, burst-mode weapons, disguised firearms, short-barreled rifles, short-barreled shotguns, handguns with shoulder stocks, sound-suppressed firearms, firearms over .50 caliber (except shotguns), explosives, ordnance, etc. etc. heavily restricted by the National Firearms Act of 1934, but there is a whole boatload of arcane Federal regulations that you have to comply with as a gun owner in order not to accidentally become a Federal felon...

http://www.atf.gov/firearms/faq/index.htm

If we rephrased the statement to say that LAW-ABIDING citizens with NO CRIMINAL RECORD have RELATIVELY unrestricted access to CIVILIAN type firearms, it would be accurate...as far as Federal law. But states can and do add their own laws, some of which are pretty draconian...

FWIW, here is an interesting article on the rather surprising consensus that has developed in academia on the issue:

Under Fire: The New Consensus on the Second Amendment (45 Emory L.J. 1139-1259, 1996)

[Jack_DeLeon]

24. I dont see anything wrong with...

"nearly unrestricted access to firearms" for any lawabiding individual.

I believe that is exactly what the 2nd amendment supports, and think that if anything is morally wrong its the fact that many people want to restrict our rights.

[Wickerman]

7. So, I am confident we won't hear a peep from all the RKBA crowd

who crowed about state rights and local control all week long, right? Uh, sure Wickerman, why do you even think it woudl b different? :shrug:

[jody]

9. I don't understand your point. Please clarify. n/t

[Wickerman]

10. We have had a number of folks post this week saying gun rights should

be decided by individual states. Each state can best decide how to deal with its gun laws.

Once again Bush is attempting to re-write law at the Federal level. Funny thing to do when the goon ran in 2000 as a states' rights boy.

[jody]

11. State rights position taken by Tribe in his book on constitutional law.

The link to USA Today is broken for "New view on arms rights angers liberals", the source of the quote below.

QUOTE
WASHINGTON - Publication of the first volume of a revised edition of a legal treatise would not ordinarily make news.

But even before it began arriving at law schools last week, Laurence Tribe's 'American Constitutional Law' was causing a stir.

Tribe , a Harvard law professor who is probably the most influential living American constitutional scholar, says he has already gotten hate mail about his new interpretation of the right to bear arms contained in the Second Amendment.

Relegated to a footnote in the first edition of the book in 1978, the right to bear arms earns Tribe's respect in the latest version.

Tribe , well-known as a liberal scholar, concludes that the right to bear arms was conceived as an important political right that should not be dismissed as ''wholly irrelevant.' ' Rather, Tribe thinks the Second Amendment assures that ''the federal government may not disarm individual citizens without some unusually strong justification.' '

Tribe posits that it includes an individual right, ''admittedly of uncertain scope,' ' to ''possess and use firearms in the defense of themselves and their homes.' '
UNQUOTE

[Wickerman]

12. And at Yale

Robert Post, a constitutional-law professor at Yale Law School, said the new memorandum disregarded legal scholarship that conflicted with the administration's gun-rights views. "This is a Justice Department with a blatantly political agenda which sees its task as translating right-wing ideology into proposed constitutional law," he said.

from the above link.

I fear Bush at all other levels, this doesn't make me real happy, either.

[jody]

14. But the 5th circuit in U.S. v. Emerson, held it was an individual right.

I don't believe SCOTUS will accept a 2nd Amendment case unless it is assured of a 7-2 decision supporting an individual RKBA.
:shrug:

[benEzra]

16. Senator Kerry said that the 2ndA protects an individual right

does that make him a "right wing idealogue"?

As I have mentioned in another thread, gun prohibition is not the traditional Democratic stance on firearms, and mostly dates to the late 1980's/early 1990's.

[aikoaiko]

18. seems consistent to me...

If the DOJ is successfull at defining the Second Amendment as an individual right and this leads to less federal gun control, then individual states are more free to decide as they see fit with regard to their citizens owning firearms.

Or, I get what you're implying now, you're saying that states might not be able to inact their own gun control laws because any restriction would be a violatin of their US constituional right.

I don;t know how it would play out. I would assume states would see be able to do reasonable regulations.

[Wickerman]

19. I read it as the 2nd option

and am certain that Ashcroft intended it to restrict state rights. Nothing more to go on than his past record, of course.

[aikoaiko]

20. aight.

:)

[skippythwndrdog]

21. Thinking about it some more...

Wouldn't the states be unable to regulate due to the 14th Amendment? If it were to be determined that the Federal laws were unconstitutional, wouldn't the state laws be unconstitutional also due to the 14th Amendment?

[benEzra]

17. The individual rights interpretation is not inconsistent...

with leaving it up to the states, in the current political climate. Saying that one believes that the 2ndA refers to a right of the people, rather than a right of a government-affiliated body, doesn't mean that from a pragmatic standpoint the state's rights position isn't the only workable solution to the issue at the moment...

[hansberrym]

13. The WSJ headline is misleading

The DOJ does not attempt to determine the scope of the right, only whether the right protected is individual or collective in nature.


Nor does the DOJ's conclusion that the second amendment protects an individual right undercut the legal reasoning for gun control. In the many cases reviewed in the DOJ report, there are examples in which an individual right is found by the court, but the court also says that only the possession of certain weapons is protected (for example the ownership of concealable weapons is generally thought not to be protected by the RKBA) and that the government can make laws for the public safety on how arms may be carried, but may not completely ban the carrying of arms.

Anyone living in a state with an individual right to bear amendment knows well that there are plenty of laws on the books regulating what types of weapons may be kept and how they might be carried. These laws are upheld by the state courts as consistent with the individual RKBA in the state constitutions. Thus there is no reason to believe that reasonable gun control would be undermined if the Supreme COurt were to rule for on individual RKBA.

The individual right to bear arms does not undercut gun control anymore than the freedom of the press undercuts the legal justification for the punishment of counterfeiting.


What might truly be undermined is the "slippery slope" arguement that sometimes is used to shoot down even reasonable gun control measures.
If the threat of large scale confiscation were removed, more progress might actually be achieved on the issue.




(Quote from the DOJ report)
Conclusion
For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.
(end quote)