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Site Notices
Posted: 8/1/2001 8:11:26 PM EDT
The Washington Post Wednesday, August 1, 2001; Page A16 Mr. Ashcroft and the NRA Editorial ATTORNEY GENERAL John Ashcroft, in a recent letter to the National Rifle Association, stated that the "text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." The amendment, in his view, protects this individual right "just as the First and Fourth Amendments secure individual rights of speech and security respectively." Mr. Ashcroft's remarkable statement has delighted the NRA, which put his face on the cover of the July issue of its America's 1st Freedom magazine. According to the Wall Street Journal, the attorney general's view is now being formalized by the department's Office of Legal Counsel as the official position of the executive branch. Never mind that it reverses the long-standing position of the Justice Department, which has a duty to enforce and defend myriad federal gun laws that might be struck down were courts to accept too broad a conception of the Second Amendment. Never mind either that it conflicts with just about all 20th century case law on the meaning of the amendment, which 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 Supreme Court has not recently -- or clearly -- pronounced on the subject of guns, but its 1939 decision in U.S. v. Miller states that the amendment was adopted "with obvious purpose" of protecting the ability of states to organize militias and "must be interpreted and applied with that end in view." Federal courts of appeals have been more explicit. "It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution," wrote the 3rd Circuit Court of Appeals in 1973. Added the 4th Circuit a year later, "The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms." In recent years some scholars have argued that the individual rights view of the amendment -- Mr. Ashcroft's view -- is historically accurate. The Founders, they contend, regarded an armed citizenry as a bulwark against potential tyranny and intended the amendment to protect household guns. This wave of scholarship is working its way into cases: A federal district court in Texas threw out a gun charge in 1999 on Second Amendment grounds -- a case now before the 5th Circuit Court of Appeals.
Link Posted: 8/1/2001 8:12:09 PM EDT
Yet the demise of militias in American society is not the only changed circumstance that makes a purist conception of the Second Amendment unsustainable today. Eighteenth-century firearms had far less offensive capability than assault weapons and modern handguns. If the people's right to bear arms includes these weapons, why does it not also include howitzers or, for that matter, helicopter gunships? There must be some type of weapon so dangerous that its proliferation can legitimately be blocked even among law-abiding citizens. Mr. Ashcroft himself acknowledges, albeit in a footnote to his NRA letter, that Congress can enact laws restricting gun ownership "for compelling state interests." This concession may allow the attorney general to stick to his vow to defend and enforce existing laws. But Mr. Ashcroft's embrace of the individual-rights view of the amendment can serve only to inject uncertainty into an area of law that has long been settled. http://www.washingtonpost.com/wp-dyn/articles/A14307-2001Jul31.html
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