Ashcroft Finding May Provoke Challenges to Federal Gun Laws

David S. Cloud

FrontPageMagazine.com | July 12, 2001
URL: [url]http://www.frontpagemag.com/guestcolumnists/cloud07-12-01.htm[/url]

IN A MOVE THAT COULD produce more challenges of federal gun-control laws, the Bush administration is drafting a legal finding that asserts individuals have a constitutional right to possess firearms.

Since the middle of the past century, almost all federal courts and the Justice Department under most administrations asserted that the Second Amendment only conferred a collective right to own guns through militias, not an individual right. As a result, restrictions on gun ownership have generally not been deemed to raise Second Amendment concerns.

But Attorney General John Ashcroft declared in a May 17 letter to the National Rifle Association his belief that the Second Amendment protects individuals' gun rights. The opinion, being prepared by the Justice Department's Office of Legal Counsel, would make that interpretation official U.S. policy.

Mr. Ashcroft’s letter to the NRA, which invokes several federal court decisions from the 19th century, "was not a personal view. The Office of Legal Counsel was consulted," said a U.S. official. He added that the new interpretation signaled a change from the aggressive gun-control policies of the Clinton administration.

How far-reaching an effect this has on federal gun-control statutes depends on how aggressive the Bush administration is in pressing its interpretation. A U.S. official involved said the "substantive effect will be zero" because the Justice Department will keep defending existing laws in court that restrict gun ownership by, among others, felons, the mentally incompetent and those convicted of domestic violence. U.S. officials cite a 1999 case in which U.S. District Judge Sam Cummings in Lubbock, Texas, threw out charges against a doctor who brandished a handgun in violation of a restraining order obtained by his estranged wife, citing the Second Amendment. The Clinton Justice Department appealed to the Fifth Circuit Court of Appeals, which hasn't ruled yet, [b][size=3]but Bush administration officials say they don't intend to reverse the U.S. position in the case.[/b][/size=3]

But the new interpretation could embolden the NRA and other gun-control foes to challenge existing gun restrictions in court on Second Amendment grounds. That could force the Bush administration to choose between defending those laws and offending the administration's allies. "I would argue that there are some" existing gun-control laws that aren't consistent with the Second Amendment, NRA lobbyist James Baker said, "and we would certainly make that case at some point."
---------

A Question of Interpretation

"In light of the constitutional history, it must be considered as settled that there is no personal constitutional right, under the Second Amendment, to own or to use a gun."
-- Justice Department Office of Legal Counsel, 1973
"Just as the First and Fourth Amendments secure individual rights of speech and security respectively, the Second Amendment protects the individual right to keep and bear arms."

-- Attorney General John Ashcroft, 2001

'cont.



-------
Gun-control advocates said the new interpretation is likely to result in fresh challenges to Clinton-era laws such as a ban on certain types of assault weapons and the so-called Brady law, which requires a computerized background check on firearms purchasers. The NRA has challenged these statutes on other constitutional grounds.

"The NRA can now say that any restriction on a so-called law-abiding gun owner's ability to immediately get a firearm would be an infringement on their Second Amendment rights," said Mathew Nosanchuk, litigation director at the Violence Policy Center and a former Justice Department lawyer. "Under its new interpretation, the Justice Department would be forced to decide how vigorously to defend this kind of attack."

The Second Amendment says: "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."

Carl Bogus, a professor at Roger Williams School of Law in Rhode Island who specializes in the Second Amendment, said its lack of application to individuals "couldn't be more settled as a matter of constitutional law." But he acknowledged that a growing body of scholars, mostly conservatives, have called for re-examining the issue. Two Supreme Court justices, Antonin Scalia and Clarence Thomas, have indicated support for revisiting the issue, he said.



David S. Cloud is a staff reporter of the Wall Street Journal.

YEEHAAA! This is the best news out of all the good news all week!!!!

I, and a whole lot of other people, were worried that Ashcroft WASNT going to continue the Emerson prosecution.  If the lower court ruling is upheld ITS PERMINENT and cant be undone by the Dems if they retake the White House in 04'![bounce]

They will continue the prosecution but will probably throw the case to ensure they will loose, then get to appeal to the Supreme Court![beer]

Geez dont everyon write in at once...[:|]

I was thinking the same thing...

Won't this enable NRA lawyers (among others) to challenge all sorts of laws based on the interpretation of the 2nd--like the assault weapon ban? Might this make the term "preban" a thing of the past?

Probably not, the Brady Bill sunsets by itself, remember, I dont think anyone will waste money fighting a case on a law that is going to be moot in three years, and under which it appears no one has ever been prosecuted.

On the other hand, there are many state laws that are now vulnerable, also states could be forced soon to accept out of state carry permits.

Here is a Great take on it:

[url]https://www.keepandbeararms.com/newsarchives/XcNewsPlus.asp?cmd=view&articleid=1698[/url]

You made a mistake copying it in it looks like. I cant get it to work.

i think the term carry permit will be a thing of the past course i could be living in a pipe dream. also its the 1994 omnibus crime bill that sunsets brady is perminent unless it gets overturned or they vote and say its expired.

here this will work next time cut off the http
[url]www.keepandbeararms.com/newsarchives/XcNewsPlus.asp?cmd=view&articleid=1698

What kind of drugs are these people smoking?  Of course if everything is hunky dory they are out of a job, so naturally one of the most conservative men in America is a socialist moll.

Damn assholes like them give every gun owner a bad name.

[url]https://www.keepandbeararms.com/newsarchives/XcNewsPlus.asp?cmd=view&articleid=1698[/url]

Is this Mel Young guy as dumb as he sounds.  If the Feds do not continue the appeal, we loose our best chance in a long time to get a clear and unambiguous ruling from the Supreme Court on what the 2nd Amendment means.

Far from bulling anyone its a godsend for us.

Of course they are going to enforce the existing firearms laws, thats how we can get them into court and overturned.

The only other route is to get another amendment to the Constituion passed, and do you know how long that will take?

He bitches about sheeple, he is the leader of the flock!

Damn, I would just really like to see things go "our way" for a while. I will do what I can to help, and pray to whoever will listen.

Tyler

Wow, what attention this is getting[rolleyes]

[size=4]Wait a minute, wait a minute! That guy Emerson [u]brandished[/u] his weapon?[/size=4]
I thought he had pawned his weapons and went back to redeem them during the period of time when there was an outstanding 'family violence'
or 'domestic violence' restraining order in effect!

If he brandished a weapon, the facts in our case are not only unsavory, but anti-gun in the extreme!

I don't recall anything about brandishing being mentioned in the past.

Eric The(WeNeedABetterCaseToAppeal,IfTrue)Hun[>]:)]

In addition to the Federal charges, Emerson was charged under State law for "brandishing" and other offenses.  He was acquitted on all counts in State court.  We don't need a better case.  This one is the one - After a detailed analysis of the true meaning of the Second Amendment, Cummings' decision said, basically, that the State (Federal Government) overstepped its bounds by making a law that prohibits an individual from exercising his Constitutional right to keep and bear arms without first proving that that individual had done something wrong.  In so many words, "that's prior restraint - a no-no".

I was one of those who was worried about the DoJ dropping the Emerson appeal.  I'm quite glad they are not.  I do hope it goes all the way to the Supremes.  That decision will tell me whether or not I still live in a Constitutional Republic, or a Politically Correct Democracy.  Whether or not it really is time to feed the hogs.

The guy who wrote that article was a obvious anti-gunner.  He excluded the part about Emerson being cleared on all state charges.  He got a fellow anti-gun "expert" to state that "that the matter couldn't be more settled as a matter of constitutional law". Which is BS as pointed out in the "Embarrassing Second Amendment" and other works.  The overwhelming opinion of Constitutional scholars is that the Second is a individual right, and that the Miller decision never settled this issue.

The reality is tha this wife accused him of brandishing the gun after the RO was issued.  The Lautenberg law removes RKBA if you have an RO issued against you.  So Emerson was arrested for that and Judge Cummings threw the case out because you can't lose a right based on what is essentially an administrative action.

What a groovy day.  I just got a warm fuzzy.

[8P]

yeah but the lautenberg law is unconstutinal its ex post facto. u havent done anything other then get a RO aginet u so they yank your rights
and a RO isnt as hard to gte as most people beleive

What do you mean?  This guy is taking a "no (anti) gun law is constitutional stance and since Ashcroft has said he will support all (anti) gun laws: the author of the article is questioning Ashcroft's intentions.  

Well for one thing, he doesnt know that "compelling state interests" is the [i]narrowist[/i] latitude.  It is the same standard that the First Amenedment is subject to.  It means that they can deny RKBA to felons and can say people cant carry firearms on a plane, becuase of the danger that the mere [i]discharge[/i] of a firearm poses to the rest of the passengers. That sort of thing.

The other is that he is linking Ashcroft to a scheme to disarm the entire US, which is patently absurd.  His actions in the last week are an attempt to protect the RKBA, and even to roll back existing gun laws, especally those of the Clinton era.  And I have already pointed out the importance of getting the Emerson case to the Supreme Court, which could not happen if he just dropped the appeal.  Of course they intend to continue appeals in the courts, Ashcroft wants the laws overturned too.

Besides, what does he want Ashcroft to do, just ignore the law?  That may be the way the Clinton Administration delt with laws it didnt like, but it is not the way a honest government works.

I'm pleasantly surprised that no one has bad-mouthed Bush for going forward with Clinton's case. Bush is doing the right thing.

Both HCI and the Brady Bunch are trying to pressure both Bush and Ashcroft into dropping the case. They feel the risks are too great for them at this time.

However, Bush feels that he can support the pro-2nd people by pushing this case to SCOTUS without public fallout from HCI and Brady. After all, he can say that he supported it. Bush's plan depends upon us pro-2nd being smart and not losing our cool.

We should hear something soon from the 5th circuit. This should be a message to the three judges that it is not being dropped and to release their judgment.

Stay tuned, the month of August is going to be interesting. I still predict that those in PRK will be able to dig up their black rifles and have a shoot-fest in celebration in the future.

I think this guys last name says it all.

HCI isnt the only group that wants Bush to drop this.

There are people here that think that this is just a ruse prior to a UN take over and the establishment of a socialist regime[rolleyes]

Just take a look.
[url]http://www.ar15.com/forums/topic.html?id=37447#lastPost[/url]

No Problemo amigo.[):)]
BTT

Let me know when the Brady Law is null and void.  Only then will I slow down my preparations for an eventual conflict.