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Posted: 1/7/2005 11:19:53 AM EDT

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.



We'll see where this goes, but it looks good. I guess the last time the Scotus got together to debate the 2A was back in 1939.

Readying for a Constitutional Showdown
Link Posted: 1/7/2005 11:23:33 AM EDT
can someone post this? it's not loading up for me.
Link Posted: 1/7/2005 11:26:00 AM EDT
Here you go

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.

Write to Jess Bravin at jess.bravin@wsj.com

Link Posted: 1/7/2005 11:28:07 AM EDT
Hey, that ain't too shabby.  This could be a very very important battle.
Link Posted: 1/7/2005 11:28:08 AM EDT

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.


No duhr!
Link Posted: 1/7/2005 11:29:33 AM EDT
Yeah, but Bush said he would sign the assault weapon ban if it reached his desk.
Link Posted: 1/7/2005 11:31:30 AM EDT
does this mean free machine guns for everyone?
Link Posted: 1/7/2005 11:32:30 AM EDT
"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."

Very nice!
Link Posted: 1/7/2005 11:32:44 AM EDT

Originally Posted By Q3131A:
Yeah, but Bush said he would sign the assault weapon ban if it reached his desk.



Yep. There's no difference between Bush and Kerry. None at all.

Link Posted: 1/7/2005 11:34:27 AM EDT
So we can expect him to kill the 86 MG ban than, to fuly restore our individual RKBA?

Hey I can dream can't I?
Link Posted: 1/7/2005 11:35:58 AM EDT
Hopefully Bush wil get to appoint 4 Constitutionalist judges to the Supreme Court before one of the cases is taken up.  
Link Posted: 1/7/2005 11:38:11 AM EDT

Originally Posted By nwmanitou:

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.



We'll see where this goes, but it looks good. I guess the last time the Scotus got together to debate the 2A was back in 1939.

Readying for a Constitutional Showdown



This manner of presenting the issue points out how easily it can be presented in a negative light.  Adding in the word "grants"  obscures the real wording that merely "guarantees" the right to keep and bear arms.  It doesn't say the government has to sell us M-16's or grenades, which is where you KNOW the term "unrestricted access" points.  The Constitution doesn't guarantee our right to own a computer but government seems to have little concern for limiting them or in fact nearly any other item up to a 707 like John Travolta's.



Link Posted: 1/7/2005 11:38:33 AM EDT

Originally Posted By Tactical_Jew:
does this mean free machine guns for everyone?



Hmmm, cost does infringe on my ability to keep and bear arms.
So charging $$$ for guns should be unconstitutional
Link Posted: 1/7/2005 11:40:07 AM EDT
All I can say is....

"SCHWIIIIINNNGGGGG!!!!!!!!"

(waiting for cyanide and the Bush haters to rain on the parade)
Link Posted: 1/7/2005 11:41:56 AM EDT

Originally Posted By PrivateJoker:

Originally Posted By Tactical_Jew:
does this mean free machine guns for everyone?



Hmmm, cost does infringe on my ability to keep and bear arms.
So charging $$$ for guns should be unconstitutional



Yes, and one day after the .gov forces gun makers to provide their arms for free, they will all shut their doors.
Link Posted: 1/7/2005 11:42:36 AM EDT
That's excellent!

I'm shocked it's run under the liberal radar so far though... I haven't heard anything about it on American Socialist Radio NPR so far.
Link Posted: 1/7/2005 11:44:33 AM EDT

Originally Posted By SamColt:
"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."

Very nice!



writ.corporate.findlaw.com/dorf/20030205.html

Something about "prefatory language".  Recent case patents.
Link Posted: 1/7/2005 11:46:01 AM EDT

Originally Posted By photoman:
So we can expect him to kill the 86 MG ban than, to fuly restore our individual RKBA?

Hey I can dream can't I?



I doubt it. This is a long term fight. Bush isn't about to expend all of his political capital just to cater to gun owners--particularly the small fringe interested in MGs.

Bush did let the '94 ban die, now it looks like he is going to put in a solid constitutional argument for the Second. Add in some good judges to the courts, and he's done quite a bit for us.
Link Posted: 1/7/2005 11:46:25 AM EDT
[Last Edit: 1/7/2005 11:46:56 AM EDT by Max_Mike]

Originally Posted By nightstalker:

Originally Posted By nwmanitou:

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.



We'll see where this goes, but it looks good. I guess the last time the Scotus got together to debate the 2A was back in 1939.

Readying for a Constitutional Showdown



This manner of presenting the issue points out how easily it can be presented in a negative light.  Adding in the word "grants"  obscures the real wording that merely "guarantees" the right to keep and bear arms.  It doesn't say the government has to sell us M-16's or grenades, which is where you KNOW the term "unrestricted access" points.  The Constitution doesn't guarantee our right to own a computer but government seems to have little concern for limiting them or in fact nearly any other item up to a 707 like John Travolta's.




That is an argument about a difference in wording with no difference in end result or meaning.

If the Constitution “Grants” something it de-facto "guarantees" that right until changed by Constitutional Amendment.

BUT…

It is already settled law the Government can regulate firearms if the Courts concur with the Bush Administration position on the 2nd Amendment that will not change established and settled law

A win on these grounds would none the less be a great victory for gun rights even considering the above.
Link Posted: 1/7/2005 11:46:26 AM EDT
Very refreshing, to say the least  & mega kudos to John Ashcroft! Nice parting gift to us "gun nuts"!!!

Question is, of what practical value is this memo? Will this be the Govt.'s stated position in all upcoming court cases? Is this a signal that the NRA/GOA, etc. should launch serious legal challenges against various gun control "laws"?

In other words, is this just lip service or is it a real turning point in the battle to protect & restore our RKBA???

Link Posted: 1/7/2005 11:49:09 AM EDT
[Last Edit: 1/7/2005 11:53:16 AM EDT by JohnTheTexican]
You can read the DOJ memorandum here.  They're careful to pussyfoot around and avoid saying anything about existing laws, but all in all it's a nice refutation of the collective right and quasi-collective right theories.  

Link Posted: 1/7/2005 11:52:50 AM EDT
Ashcroft may have rattled a few of the Christ haters, but he was the best .gov official for RKBA in at least the last 100 years.
Link Posted: 1/7/2005 11:53:06 AM EDT

Originally Posted By Tactical_Jew:
does this mean free machine guns for everyone?




w00t!!!!!!w00t!!!!!!
Link Posted: 1/7/2005 11:55:17 AM EDT
Thank You God...

For ye that had little faith...

Just



Semper Fi
Shooter
Link Posted: 1/7/2005 11:55:33 AM EDT

Originally Posted By Q3131A:
Yeah, but Bush said he would sign the assault weapon ban if it reached his desk.



People think everything Bush says is literal.  He knew damn well no politician would commit sepku by reauthorizing the AWB and choice words were just a hushpuppy for the gun grabbers.
Link Posted: 1/7/2005 11:57:31 AM EDT
[Last Edit: 1/7/2005 11:58:16 AM EDT by JohnTheTexican]

Originally Posted By jmzd4:

Originally Posted By Tactical_Jew:
does this mean free machine guns for everyone?




w00t!!!!!!w00t!!!!!!



I wouldn't get too excited about this.  It's a step in the right direction to be sure, but remember that the Fifth Circuit didn't have any trouble in Emerson in adopting an individual right approach and still upholding Emerson's chickenshit conviction.
Link Posted: 1/7/2005 11:58:09 AM EDT
Today is really important.  Today the SCOTUS decides whether or not to grant the write of certiorari to Stewart ...

announcement to be posted Monday at 10:00 EST (I think)
Link Posted: 1/7/2005 12:00:58 PM EDT
Blame me, I voted for Bush.
Link Posted: 1/7/2005 12:01:49 PM EDT

Originally Posted By garandman:
All I can say is....

"SCHWIIIIINNNGGGGG!!!!!!!!"

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?

no hopes up yet for sure.

chris
Link Posted: 1/7/2005 12:03:54 PM EDT
This could overrule CA, NYC, Wash DC, Virginia, etc. laws, no?
Link Posted: 1/7/2005 12:06:54 PM EDT

Originally Posted By virginia22:

Originally Posted By garandman:

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?

no hopes up yet for sure.

chris



Funny - I say "Bush haters" and YOU chirp up.  

The Bush admin killed the AWB and now is moving in directions we haven't seen since 1778 re: gun rights.

Yet y'all still hate him
Link Posted: 1/7/2005 12:06:57 PM EDT
OMG!!!    How long 'til DUh has their panties in a bunch?  this should be great to watch.  If the election results weren't good enough now this!  
Link Posted: 1/7/2005 12:07:54 PM EDT

Originally Posted By leelaw:
This could overrule CA, NYC, Wash DC, Virginia, etc. laws, no?



DC, NYC yes, because they are blanket.

CA, NJ, and MD, where they pick on certain types of guns and ammo, that is a entirely different matter.
Link Posted: 1/7/2005 12:09:04 PM EDT

Originally Posted By leelaw:
This could overrule CA, NYC, Wash DC, Virginia, etc. laws, no?



Absolutly it could if they're going to the root of the matter which is the Constitution itself.
Link Posted: 1/7/2005 12:09:55 PM EDT
Quick- we need an ARFCOMmer to run for president. Using the full resources of the people who come here regularly, we could get anyone suited to the task a political career with good chances at the presidency. Our solid bloc of votes would lend tremendous support to his being elected.

Then, as soon as he's in office... executive orders dissolving all gun bans ever.
Link Posted: 1/7/2005 12:11:23 PM EDT

Originally Posted By jblachly:
Today is really important.  Today the SCOTUS decides whether or not to grant the write of certiorari to Stewart ...

announcement to be posted Monday at 10:00 EST (I think)


Not today. www.supremecourtus.gov/orders/courtorders/010705pzr.pdf
Link Posted: 1/7/2005 12:20:43 PM EDT

Originally Posted By green-grizzly:

Originally Posted By jblachly:
Today is really important.  Today the SCOTUS decides whether or not to grant the write of certiorari to Stewart ...

announcement to be posted Monday at 10:00 EST (I think)


Not today. www.supremecourtus.gov/orders/courtorders/010705pzr.pdf



I didn't see Stewart mentioned . . . but what is Stewart, anyway?
Link Posted: 1/7/2005 12:32:37 PM EDT
[Last Edit: 1/7/2005 12:34:00 PM EDT by Cincinnatus]

Originally Posted By virginia22:

Originally Posted By garandman:
All I can say is....

"SCHWIIIIINNNGGGGG!!!!!!!!"

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?



Force of habit?

Reflex?

Don't know what else to do?


Because you hate him, and that emotion tends to block out reason.


(Funny how when the call went out for "Bush haters, you responded...)
Link Posted: 1/7/2005 12:38:59 PM EDT
[Last Edit: 1/7/2005 12:43:56 PM EDT by PAEBR332]

Originally Posted By DonS:

Originally Posted By green-grizzly:

Originally Posted By jblachly:
Today is really important.  Today the SCOTUS decides whether or not to grant the write of certiorari to Stewart ...

announcement to be posted Monday at 10:00 EST (I think)


Not today. www.supremecourtus.gov/orders/courtorders/010705pzr.pdf



I didn't see Stewart mentioned . . . but what is Stewart, anyway?



United States v. Stewart. A Ninth Circuit opinion that ruled the 1986 Machinegun Ban, as currently written, is an unconstitutional extension of Congress' Commerce Clause powers.

In other words, as long as you build your own, and do not sell them, MGs are AOK (if allowed under your state law).

Stewart info.
Stewart Ruling
Link Posted: 1/7/2005 12:42:23 PM EDT
I voted for Bush!

And,,,,,,,




­






I'm not sorry!
Link Posted: 1/7/2005 12:44:28 PM EDT
Awesome that the Bush administration is doing this. Didn't think I'd see the day.
Link Posted: 1/7/2005 12:46:32 PM EDT

Originally Posted By Cincinnatus:

Originally Posted By virginia22:

Originally Posted By garandman:
All I can say is....

"SCHWIIIIINNNGGGGG!!!!!!!!"

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?



Force of habit?

Reflex?

Don't know what else to do?


Because you hate him, and that emotion tends to block out reason.


(Funny how when the call went out for "Bush haters, you responded...)



Being as I disagree with most of what bush has done. to you and others, that's exactly what I am. of course, unlike some(most) in here, I see some good on both sides (reps/dems), as well as bad.

no party line towing here cin, how about you? snicker

hope it works out for us. no hopes up yet.

Chris
Link Posted: 1/7/2005 12:47:31 PM EDT

Originally Posted By garandman:

Originally Posted By virginia22:

Originally Posted By garandman:

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?

no hopes up yet for sure.

chris



Funny - I say "Bush haters" and YOU chirp up.  

The Bush admin killed the AWB and now is moving in directions we haven't seen since 1778 re: gun rights.

Yet y'all still hate him



I'm not a one issue voter garand, how about you?

Chris
Link Posted: 1/7/2005 12:49:23 PM EDT
OK, then when is DOJ going to start suing CA, NJ, MA, Chicago, Morton Grove, Washington, DC, New York City, etc, to strike down their unconstitutional gun laws?  I'm waiting.
Link Posted: 1/7/2005 12:50:06 PM EDT
[Last Edit: 1/7/2005 12:51:48 PM EDT by Cincinnatus]

Originally Posted By virginia22:

Originally Posted By Cincinnatus:

Originally Posted By virginia22:

Originally Posted By garandman:
All I can say is....

"SCHWIIIIINNNGGGGG!!!!!!!!"

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?



Force of habit?

Reflex?

Don't know what else to do?


Because you hate him, and that emotion tends to block out reason.


(Funny how when the call went out for "Bush haters, you responded...)



Being as I disagree with most of what bush has done. to you and others, that's exactly what I am.

To you as well.
You weren't called by name.

But you came...

of course, unlike some(most) in here, I see some good on both sides (reps/dems), as well as bad.

no party line towing here cin, how about you? snicker


You just don't hear us when we say bad things about the Bush policies on:

Immigration
Tariffs
Farm Bill
Prescrition Drugs

We criticize, yet you don't hear.
It ruins the monolithic image, that you so prefer.
That's OK.


So, what are your favorite Democrat proposals  ?
Link Posted: 1/7/2005 12:53:30 PM EDT

Originally Posted By Q3131A:
Yeah, but Bush said he would sign the assault weapon ban if it reached his desk.



IIRC, didn't you start that wives tale?
Link Posted: 1/7/2005 12:55:31 PM EDT

Originally Posted By quijanos:

Originally Posted By Q3131A:
Yeah, but Bush said he would sign the assault weapon ban if it reached his desk.



IIRC, didn't you start that wives tale?



1) It's not a wive's tale. Bush said it, but the emphasis was always on the IF it reaches my desk.

2) Q3131A is being sarcastic.
Link Posted: 1/7/2005 1:00:13 PM EDT

Originally Posted By Q3131A:
Yeah, but Bush said he would sign the assault weapon ban if it reached his desk.



Yeah, but Bush knew that it wouldn't reach his desk, so he was straddling the fence to get votes from the soccer moms.  I don't agree with it, but that's how I see it.
Link Posted: 1/7/2005 1:01:07 PM EDT
Oh Please Yes!!!
Oh Please Yes!!!
Oh Please Yes!!!

About Time.
Link Posted: 1/7/2005 1:02:19 PM EDT
[Last Edit: 1/7/2005 1:05:21 PM EDT by garandman]

Originally Posted By virginia22:
Being as I disagree with most of what bush has done. to you and others, that's exactly what I am.
Chris



I have LOTS of beefs with Bush as well.

Yet I don't hate the man. Bush is about the politics of the possible.  I can have the AWB dead, gun rights expanding, taxes being cut, with a few other unpalatables OR I can have wholesale Marxism. THERE IS NO THIRD CHOICE.


You may not like hearing this truth, but you hate him.



Link Posted: 1/7/2005 1:03:11 PM EDT

Originally Posted By Cincinnatus:

Originally Posted By virginia22:

Originally Posted By Cincinnatus:

Originally Posted By virginia22:

Originally Posted By garandman:
All I can say is....

"SCHWIIIIINNNGGGGG!!!!!!!!"

(waiting for cyanide and the Bush haters to rain on the parade)



hope it goes through, why would we bitch?



Force of habit?

Reflex?

Don't know what else to do?


Because you hate him, and that emotion tends to block out reason.


(Funny how when the call went out for "Bush haters, you responded...)



Being as I disagree with most of what bush has done. to you and others, that's exactly what I am.

To you as well.
You weren't called by name.

But you came...

of course, unlike some(most) in here, I see some good on both sides (reps/dems), as well as bad.

no party line towing here cin, how about you? snicker


You just don't hear us when we say bad things about the Bush policies on:

Immigrationonly one I've heard y'all bitch about
Tariffs
Farm Bill
Prescrition Drugs

We criticize, yet you don't hear.
It ruins the monolithic image, that you so prefer.
That's OK.


So, what are your favorite Democrat proposals  ?

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