Bush lawyers to defend individuals right to bear arms..

[ruger270man]

http://online.wsj.com/public/article...free%5Ffeature

Bush Lawyers Target
Gun Control's Legal Rationale

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
January 7, 2005; Page A4

Readying for a constitutional showdown over gun control, the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms.

The memorandum, requested by Attorney General John Ashcroft, was completed in August but made public only last month, when the Justice Department's Office of Legal Counsel posted on its Web site several opinions setting forth positions on various legal issues. Reaching deep into English legal history and the practice of the British colonies prior to the American Revolution, the memorandum represents the administration's latest legal salvo to overturn judicial interpretations that have prevailed since the Supreme Court last spoke on the Second Amendment, in 1939. Although scholars long have noted the ambiguity of the 27-word amendment, courts generally have interpreted the right to "keep and bear arms" as applying not to individuals but rather to the "well-regulated militia" maintained by each state.

Reversing previous Justice Department policy, Mr. Ashcroft has declared that the Second Amendment confers a broad right of gun ownership, comparable with the First Amendment's grant of freedom of speech and religion. In November 2001, he sent federal prosecutors a memorandum endorsing a rare federal-court opinion, issued the previous month by the Fifth U.S. Circuit Court of Appeals in New Orleans, that found an individual has the right to gun ownership. President Bush adopted that view as well, saying that "the Constitution gives people a personal right to bear arms," and doesn't merely protect "the rights of state militias," in an interview published days before last year's election in National Rifle Association magazines.

The new Justice Department memorandum acknowledges that "the question of who possess the right secured by the Second Amendment remains open and unsettled in the courts and among scholars," but goes on to declare that "extensive reasons" support seeing it as an individual right, while there is "no persuasive basis" for taking another view. The Supreme Court's 1939 opinion, upholding a federal law requiring registration of sawed-off shotguns, found that the amendment didn't guarantee "the right to keep and bear such an instrument," because it had no "reasonable relationship to the preservation or efficiency of a well-regulated militia." The court didn't go further to say what firearms rights the Constitution did guarantee, but federal courts subsequently have dismissed challenges to gun-control laws on Second Amendment grounds.

In 2001, the Fifth Circuit upheld a federal law limiting firearms possession by people under judicial restraining orders, but took the occasion to opine that the Second Amendment did confer a general individual right that wasn't implicated by the federal statute. A year later, the Ninth Circuit, based in San Francisco, explicitly found to the contrary, upholding a California law restricting assault weapons in part because "the Second Amendment does not confer an individual right to own or possess arms." Both courts issued lengthy opinions to justify their constitutional views, but the Supreme Court declined to hear appeals from either decision, leaving both on the books in their respective circuits. The Justice Department's new memorandum anticipates that the high court may soon accept a case to resolve the split.

The Second Amendment states that "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 memo's authors, Justice Department lawyers Steven Bradbury, Howard Nielson Jr. and C. Kevin Marshall, dissect the amendment's language, arguing that under 18th century legal conventions, the clause concerning "a well-regulated militia" was "prefatory language" without binding force. "Thus, the amendment's declaratory preface could not overcome the unambiguously individual 'right of the people to keep and bear arms' conferred by the operative text," they write.

They write that the drafters of the amendment envisioned a militia consisting of "all able-bodied white men" in a state, and suggest that they would be expected to keep arms not only if called up by the government but also on their own initiative, perhaps to fight rulers who threatened their liberties.

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.

[1952Sniper]

Lord, I hope this is true, and that I've been wrong about Bush with respect to the 2nd Amendment.

[SouthernMoss]

Thanks for the heads up, ruger270man. Let's hope it makes a difference!

[rosierita]

thanks for the article! this is good news!!

[Carl S]

It is very good news. But I am concerned about any 2nd Amendment case going before SCOTUS. After they ruled against the 1st Amendment in the McCain-Finegold Act case, who knows how they will decide a 2nd Amendment case.

[BlueTic]

I agree with Carl - But - I could care less about another opinion after they butchered the 1st. Unfortunately I am in the 9th district (WA) and they just boiled my Texas raised blood - their decision should have been appealed to the supreme, as most of their liberal views are suspect!!!

[geezler]

I will have to take a "wait and see attitude" on this one! Too many times in the past our hopes have been driven up just to be dashed against the rocks.

[pickenup]

I will "wait and see" also.

Click HERE for some interesting reading on what the Supreme Courts have said about the “second.”

A few “opinions”…..

A person can only lose a right upon conviction of a crime if a person had the right before conviction. Hence, if an individual can lose his right “to bear arms,” he must possess such a right.

a person carrying a gun for personal protection could be said to be bearing arms. If individuals can “bear arms,” then the right to “bear arms” must belong to individuals.

By implication therefore, if “the people” whose right to arms is protected by the Second Amendment are American people, then “the right of the people” in the Second Amendment does not mean “the right of the states.”

[TRAP55]

It's about time somebody made this challenge, we know the N.R.A. never will! Maybe the Supremes should rule against the 2nd, that might be the match to light the fire to show them what the real intention of the 2nd was for!

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.

Excuse me Mr. Post, what exactly is the political agenda of the party that wants to disarm it's citizens?
Oh yeah, I remember, the same one Hitler had when he disarmed the Jews, or Stalin when he disarmed the Russian people! Mr. Post was obviously asleep in history class( or had a liberal prof.) since he doesn't know why America and Switzerland have never had a full force invasion. THE CITIZENS ARE ARMED! Those who ignore history are doomed to repeat it!

[Marlin]

What do you expect coming out of New Haven/Yale, the fine city that has had a Socialist Mayor over time more years than most cities in the USSR?????

Yale and Harvard are both a different universe; equally as left as Berkley, or more, only not as nutty.....

[bigt7mm]

Guess we'll see...

Although,I wouldn't get my hopes too far up.

[1952Sniper]

Originally Posted by Carl S

It is very good news. But I am concerned about any 2nd Amendment case going before SCOTUS. After they ruled against the 1st Amendment in the McCain-Finegold Act case, who knows how they will decide a 2nd Amendment case.

Well, we certainly know what will happen if they don't rule. We'll continue to see more and more gun control legislation passed until our rights are gone.

At least if the SCOTUS rules against us, we'll know where we stand, and we'll know whether it's time to start shooting.

[Eagle Guns]

Good News,Thanks