[url]http://www.lewrockwell.com/elkins/elkins43.html[/url]

Alright, I am TIRED of people yelling that when Ashcroft says the Second Amendment is an individual right except in cases of compelling state interests means that he'll be like BBQ Reno.  This belief is incorrect, the courts consider the term "Compelling state interest" to mean a very specific thing.  Why dont you guys try looking it up, before assuming that Ashcroft is gonna fire up the ol' BBQ grill?


A 2 minute Google search found the following article: [url]http://205.221.142.253/htmlpages/news/news7v3/fda.html[/url]
[b]Now that it is clear that students have human rights and educators must have a compelling state interest to deny their rights, that begs the question: What are the compelling state interests? Our nation's courts have been using four basic arguments in an effort to maintain a balance between individual and state interests in our public schools. These are as follows:

1. Property loss or damage
2. Legitimate educational purpose
3. Threat to health and safety
4. Serious disruption of the educational process
In other words, school rules and decisions based on these four compelling state interest arguments will, in all probability, withstand the test of today's court rulings despite the fact that they deny students their individual rights. School rules should be viewed by students and parents as guidelines for responsible behavior as opposed to restrictions. Does that mean that the rules are always perceived as fair and equal? No - Fair is not always equal, just as equal is not always fair.

[i] MVAO Newsletter, October 2000[/i] [/b]
Now I understand that it doesnt pertain directly to firearms, but it gives a good idea of what the courts consider "compelling state interests" to be.

Please read the above snippet (reading the whole article would be nice) and realize that Ashcroft says exactly what he means, he doesnt double-talk like Slick Willy.  After reading, please shut the hell up until you get some more proof than a legal term that you misinterpretted.

Kharn

SO TRUE, BUT DUCK, SOME HERE MAY ATTACK YOU FOR THE TRUTH!!!!!

AG Ashcroft is the best thing to happen for RKBA in a looong time. He's a man of principle and integrity. After reno, I'd have settled for a lot less. I can't think of anyone better than John Ashcroft for AG!

I thought the Rockwell article was pretty self explanatory.

I have to agree that there are no signs that the present administration is attempting to do away with ANY of the onerous federal gun laws passed under Klinton's watch.

That said, I'll take Ashcroft over Reno any day, and I doubt we'll be seeing any new federal gun laws passed and signed until after the next congressional elections in 2002.

Kharn is basicly correct.  The only problem here, or with what Ashcroft said, is that Jeff Elkins (the guy who wrote the Rockwell article) is basicly mouthing off without the slightest understanding of what the hell he's talking about.  He's obviously done absolutely no research,  or at the very least, doesn't understand the legalese.  "Compelling state interest" is a legal term of art.  It refers to the "strict scrutiny" standard of review and  places the highest possible burden of proof on the gov't to uphold a law which impacts a fundamental right.  There is no higher standard of constitutional review in the courts.  The 2nd has never been adjudicated to be one of the few fundamental rights, but Ashcroft is basicly saying Congress should treat it as if it was.  Even the right to free speech is judged by a lesser standard in many cases.  Ashcroft didn't lie, he's just knows constitutional law a hell of a lot better than Elkins.


(Sorry to sound so belligerent, but I'm getting tired of people accusing Ashcroft of being anti-gun, when the only thing he's guilty of is being intelligent.)

Sweep, the AG doesn't write legislation. He's in charge of enforcement of legislation. Believe me, having the US Justice Dept on record affirming the 2nd as an individual right is a HUGE step in the right direction. This should reduce the abuses of the past on the part of ATF and FBI. They know the AG won't stand for it! Rouge elements of federal LE have been sheilded by Klinton/Reno for 8 years and that's come to an end. Hooray!

First off, the 2nd has never been held to be a fundamental right.  (...and note, the term "fundamental right" is also a very specific legal term - it is not the enumerated rights in the BoR.  Fundamental rights include such rights as the right to vote, the right to privacy, and the right to travel)  Additionally, there is little (actually none that I'm aware of) law from the SCOTUS indicating the proper standard of review for the 2nd. The 1st amendment is judged by strict scrutiny in some factual situations; by intermediate scrutiny in others; and by low level (rational basis) scrutiny in yet others.  The level of scrutiny afforded an alleged constitutional violation depends on specific factors in the case. There hasn't been enough litigation on the 2nd to even know what level of scrutiny to start at - the court will determine that, however, when/if cases ever hit the SCOTUS.

Finally, regardless of what the text of the constitution says, the courts have held that there are limits to enumerated rights.  No right is absolute.  And the standard by which the gov't can legislate and regulate the logical limits of those enumerated rights is dictated by the standard of review applied by the court.  Look at the first amendment, for example.  "Congress shall make no law respecting an establishment of religion or prohibiting the fre exercise thereof..."  Guess what; you CAN be prohibited from doing lots of things even if they're part of your religion.  You can't take peyote, smoke pot, abuse your kids or engage in human sacrifice evn if it is an integral part of your religion.  "Congress shall make no law...abridging the freedom of speech or of the press..."  Guess what;  Congress CAN make laws prohibiting you from yelling "FIRE!" in a crowded theatre, calling in a bomb threat to a school, or dissemenating child pornography.

All true.  So the question becomes "What constitutes [i]compelling state interest[/i] when it comes to gun control law?  "Threat to health or safety"??  That's been the gun-grabbers mantra the whole time - if there are no guns there can be no gun crimes.  

Essentially, it takes the question away from Congress and places it in the hands of the Courts, which can be quite liberal (in all meanings of the word) in deciding what is or is not [i]compelling state interest[/i].  

I believe that the 5th Circuit Court decision on Emerson is even more critical now.  It will indicate which way the courts are leaning when it comes to the [i]compelling state interest[/i] question.

KBaker - You are right...to an extent.  Deciding what constitutes "compelling state interest" does leave the courts some room to play with.  However, the compelling state interest test is actually quite a high standard for the gov't to meet and thus have a law held valid.  Under the strict scrutiny standard, I doubt the 1994 AWB would be valid.  What would the proffered state interest be? Crime prevention?  I think the court would look at the facts presented by both sides and find that features such as bayonet lugs and flash hiders contribute so little to the state interest of preventing crime, as to do absolutely nothing to vindicate the state's alleged interest.  In general (there are always exceptions), when the court says they are applying strict scrutiny to review an alleged constitutional violation, the tacit message to the gov't is "you're about to lose."

Sweep -

I understand your point, but the 1st can be read just as strongly.  It says "Congress shall make NO law...".  It doesn't say Congress should not make a law.  It seems to be an absolute prohibition on the power of Congress to make ANY law: [i]abridging[/i] the freedom or speech, prohibiting the [i]free exercise[/i] of religion, etc.  But thre are logical limits to those rights, and Congress can make laws in those areas.

Yes, but you're making a flawed assumption - that the Courts will rule under strict Constitutional guidelines.  They're [b]supposed[/b] to, but often they do not.  

Look at the [i]Miller[/i] decision.  The lower court (correctly) threw out the charges and declared the 1934 GCA unconstitutional.  The SUPREME Court decided that the strict [b]Constitutional[/b] interpretation protected only weapons of military usefulness, and that "a shotgun having a barrel of less than 18" didn't meet the requirement, as far as they knew.  The court [b]never[/b] questioned whether Miller [b]was[/b] a member of the militia.  However, subsequent court decisions using [i]Miller[/i] have questioned whether defendants were members of the milita.  As Sanford Levinson pointed out, taking the[i]Miller[/i] decision to its logical conclusion [i]only[/i] "weapons of military usefulness" (i.e. assault rifles, etc.) are protected by the Second Amendment.  Please point out ANY decision that has used [i]Miller[/i] to make THAT particular argument.

So, [b]IF[/b] the judicial branch restricted itself to a strict Constitutional interpretation of the Bill of Rights, we'd be in great shape.  I wouldn't even mind some of the "reasonable" restrictions proposed by the gun-control groups, because I would have no fear that they would eventually be twisted to confiscate my legally-owned firearms.  But I don't trust the Courts because of the number of liberal judges who think that they can make law, and who think that the Constitution is out of date.

In short, [i]"compelling state interest"[/i] means only what the judge in question decides it means, and history proves that they are no guarantee of liberty.

what he says and what he does are 2 diffrent things people forget to remeber that. so far hes saying alot but doing little. he SAID he will get nics info to a day then deleted. ahs it happened yet. not that i have seen

I think you missed the important part of Miller.  The court did follow a strict constitutional interpretation of the 2nd, but they could not overstep their judicial authority to rule on the law.  The job of the court is to review the law, not decide on the facts.  What you have to remember about the Miller case is that Miller didn't show up (I think he had been murdered by the time the SCOTUS heard the case). Miller's attorney didn't show up.  In fact, Miller's attorney never even filed a brief or anything after the demurrer to Miller's indictment.  Basicly, no one made the argument or presented facts for Miller that sawed of shotguns were an arm with military use.  The only facts the court had to go on were those proffered by the gov't - that sawed off shotguns were only the tools of criminals.  Had Miller had someone there to point out that the US Gov't issued thousands of short barreled shotguns in WWI, he would have won the case.  Unfortunately, no one was there to argue for Miller.  Considering the govt's side went completely unrefuted, I think Miller is an extraordinary decision - even in the complete absence of anyone arguing for the point, the court found that weapons with a reasonable relationship to the preservation of the militia were protected under the 2nd amendment.

As far was whether Miller was a member of the militia, the issue never really came up because as stated, Miller wasn't there to argue it.  The court did, however, allude to numerous historical references which indicated that individuals were partof the militia and were expected to provide their own arms for militia use.

cyrax777: You missed it.  The DOJ decides how long NICS records will be kept, when Ashcroft said 1 day max, the rule became one day max, no law or act of Congress required.  The democrats recently tried to get the limit set back at 90 days by the Moran Amendment in the House and they got their ass spanked, 268-161 voted to reject it.

Kharn

Sounds like someone WAS watching that ABC poll we killed...

I think John is off screwing the pooch...he came on like gang-busters born-agin Christian highly moral ...gonna clean house...kicks in the door..and says.."is every thing ok in here...?" big laugh..."yeah John ...now shut the door and go away"."Ok guys sorry to bother you" example..Oklahoma City ...John Does #2 ad infinitum
many many eye witnesses...descriptions...hes a ghost he vanishes...Timmy Mcveigh sitting on death row..reading car magazines...unconcerned that he is gonna die..because his bro John Doe #2 takes out his handy dandy Makita cordless drill and removes Timmys liscense plate...this is for good luck he says...Timmy drives away and John Doe is seen...leaving the scene at a good pace afoot...FBI documents regarding JD#2 are disregarded when the defense brings this up...Ashcrofts makes a big scene waits a few days...and McVeigh expires on the table...he doesnt even make a speech as to why he did this terrible deed...he is quickly cremated..and like the remains of the Fed building dissapears...case closed...next...dont talk about it ...dont ask about it...grieving survivors...your got your pound of flesh now dissappear....
Meanwhile back in Washington...clinton, reno... a host of spies and traitors selling secrets to our enemy now alligned with Russis to nuke us if we aid Taiwan...and whose nukes are now accurate thanks to Loral, Motorola. Hughes (GM-yeah the car company)....go unpunished...the media being very complicit and Ashcroft and Bush who the conservatives thought were going to end this travesty of Clinton Govt doesnt even replace the Clinton commie clones...in high places...or roll back the executive orders that threaten us..that Clinton put in place...conclusion...business as usuall...and conservative gun owners have been bought off.....you get your guns..(for now) just keep the faith baby ...we are on your side...dont make waves...dont get exited...in four more years...who will be in power...guns....will be history...and Ashcroft in his failure to act as the conservative. he made himself out to be..will have certainly helped...is he complicit or just a patsy...I dont really know...but if he cant make happen what he swore to then he should just resign..at least then we would know what we can really expect...John meanwhile..is still going after gun owner crimes..and has doubled his efforts...gonna go get those domestic abuse guys...who try to hunt ...so what if their live ins lied their little asses off...and got the husband/boyfriends guns and hunting privliges revoked for life...for a misdeamenor...women rule....so Mr Justice...wheres the justice in that?..Naw John AShcroft friend to gun owners...that dog dont hunt....its a buy off to get us off the other more critical issues..and its a stall tactic cause they are coming anyway...not today ...and maybe not in the next three years...but these repubs aint gonna be in office...that long...just my opinion...an old fart...pissed off by a lot of what I see....and dont like...RANT OFF....

(Remainder snipped for brevity.)

The [i]important part[/i] of [i]Miller[/i] is that the Court made the subordinate clause "A well-regulated militia" a [b]restriction[/b] on "the right of the people to keep and bear arms".  Remember, the Supreme Court of that time had been packed by Roosevelt.  The 1934 GCA, passed as a "revenue" measure actually acted as an employment tool for all of the Treasury agents made idle by the repeal of Prohibition.  The lower court threw out the [i]Miller[/i] case almost preemptorily, and [b]he was right to[/b].  The Supreme Court wasn't going to let that stand for political reasons.  

Same condition we have today, though slighly reversed.  Currently five of the nine Supremes are "conservative", so if Emerson reaches SCOTUS, we have a reasonable chance at a decision reminiscent of [i]Brown v. Board of Education[/i]  Even better if Bush gets to replace one or more of the liberal Justices.  The Court [b]does[/b] review the law, but that review [i]will be colored by their personal political viewpoint[/i] and [b]most[/b] judges aren't strict constitutionalists.

I beg to differ with you on that point.  The court did acknowledge that a weapon protected under the 2nd had to be a weapon with a reasonable relationship to the preservation and efficiency of a well regulated militia, but any firearm, especialy those of a military nature, could fit that bill. Problem was Miller and Gutensohn (Miller's attorney) weren't there to argue that point.  

Actually, that point (that "A well regulated militia" places a limitation upon the "right of the people to keep and bear arms") was the argument proffered by the gov't in their brief.  Because Gutensohn never even bothered to file a brief in opposition or appear at the SCOTUS to argue the point, thats (the gov't) the only point of view the court had to examine.  But notice how far the court went to limit the application of that - that just about every able bodied male was a member of the militia and any weapon with a reasonable relation to the preservation of a common defense was protected under the 2nd.  Without anything more to go on in favor of the 2nd than the scantily written demurrer to the indictment, there was no question the gov't would win by default, but the court went as far as they could to limit that win without actually doing Gutensohn's work for him. Had Gutensohn even made the slightest attempt at defending this on appeal, it would have been a complete slam dunk.  The SCOTUS wasn't going to let the decision of the lower court stand, but it wasn't for political reasons - this was considered a minor decision at the time - there was little or no political gain to be had.  The court wasn't going to let the decision stand because Gutensohn was inept and made no argument whatsoever why the decision [i]should[/i] stand.

In fact, the [i]Miller[/i] opinion will probably be a major part of any brief filed by the either the Justice Department or the NRA against states like California with their anti-"assault weapon" laws.