WASHINGTON (AP) -- The Supreme Court said Monday it will not hear two cases that would have offered a test of the Bush administration's newly articulated position that the Constitution protects an individual's right to own guns.

Without comment, the court turned down two men convicted of violating federal gun laws. The men had argued that the laws are unconstitutional because the Second Amendment gives Americans the right to "keep and bear arms."

The cases marked the first time that the Bush administration had told the Supreme Court that it has reversed a decades-old policy on the Second Amendment. Until now, the government has said the amendment protects a collective, not an individual, right to gun ownership.

The distinction is important, because gun laws necessarily restrict individual rights.


The administration also said its new position does not undermine federal gun laws, because the Second Amendment right is still subject to "reasonable restrictions."

Using that rationale, the administration urged the high court not to accept the appeals of Timothy Joe Emerson and John Lee Haney. Both were properly convicted of violating laws the administration considers reasonable limitations of the gun right, Solicitor General Theodore Olson said.

The Second Amendment reads, "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 interpreted that in 1939 as a protection of militia rights, not of individual ones. Decades of Justice Department policy rested on that interpretation, which preceded most federal laws regulating who may own what type of gun.

"The current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms," Olson wrote in footnotes attached to filings in the Emerson and Haney cases.

That right, however, is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse," Olson wrote last month.

Olson, the administration's top Supreme Court lawyer, was reflecting a view that Attorney General John Ashcroft had voiced last year in a letter to the National Rifle Association.

"The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear arms," Ashcroft wrote then.

At the time Ashcroft wrote the letter, it was unclear whether he was expressing his personal view or stating a new policy position for the government.

That question was mostly answered last November, when he sent a letter to federal prosecutors praising an appeals court decision that found "the Second Amendment does protect individual rights" but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."

That opinion by the 5th U.S. Circuit Court of Appeals went on to reject arguments from Emerson, a Texas physician, that a 1994 federal gun law was unconstitutional. The law was intended to deny guns to people under judicial restraining orders.

"In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment," Ashcroft told prosecutors.

The appeals put the Justice Department in an awkward position. Although the government won both cases in lower courts using the old interpretation of the Second Amendment, Ashcroft had switched gears by the time the appeals reached the high court.

The cases are Emerson v. United States, 01-8780 and Haney v. United States, 01-8272.


Fresh off CNN's web site.

Supreme Court chickened out.

Because this Administration has done more than any other to protect the second ammendment, could it be that they didn't think this could be won with the Court's current makeup? I hope this is their position and after some conservative appointments to the Court this can be tried again. I'm trying to be optimistic and not believe this is a case of smiling in your face while stabbing you in the back.

First of all, the Administration does not control which cases the SCOTUS decides to hear or not.  I would hope that SCOTUS would righteously refuse to hear any argument or reasoning at all regarding whether they hear a case or not, outside of the courtroom or in public legal briefs.  SCOTUS is supposed to be our legal stake in the ground to ensure that the Constitution, not the current administration, social fads, etc. guide our lawmaking and judicial processes.

That said, SCOTUS is currently divided 5/4 between conservative judges and liberal judges with some conservative and liberal judges being more moderate than others. Gun control is far from a cut and dried issue.  Many folks in America who are otherwise conservative, believe in gun control of one sort or other simply because guns scare them personally. It is probably fair to say that probably one of the conservative justices thinks the restraining order thing is of greater importance than a rigid policy of non-infringement on individual gun ownership and carriage.  

I'm not saying that decision is right, but knowing the number of restraining orders that are violently violated and the numbers of women who end up in emergency rooms or morgues because of RO violations, I'm not certain I'd be able to effectively argue that people dangerous enough to have RO's filed against them SHOULDN'T be temporarily stripped of their 2nd Amendment rights. (I am not saying I couldn't argue it logically and correctly...I could...I'm just saying that I doubt I could argue it effectively (overwhelming emotions with logic and reason)).  Moreover I think that at the same time a person is awarded an RO they should also be granted a CCW and a fee waiver for a armed self-defense course, and maybe long term loan or low-cost rental of a .38 special or older service handgun if the person cannot afford a firearm for themself.  (Obviously if the restrainee is dangerous enough to warrant an RO, then a CCW is also warranted.)

Likewise I strongly feel that the recent trend toward automatically granting RO's in nearly all divorce cases is ridiculous. Cause should be shown and a pattern of aggressive (if not actually violent) behavior should be demonstrated.   IN the case of Emerson I don't believe such violence or aggression was ever substantiated.  In fact, in the Emerson case, it was the wife who violated the restraining order buffer, forced a confrontation and got aggressive.  If a more rigid and realistic standard were used in granting RO's Emerson never would have come up.

Drat.  Emerson was one of our best chances in a long time, particularly because he himself had not actually been convicted of a crime of violence.

Now we will have to contend with all the Second Amendment appeals of gangbangers and muggers convicted for carrying guns.

According to the article (shaky at best?) it sounded like some back door political wrangling was done so the Court wouldn't hear the case. That was my point. Certainly, the Judiciary is a separate branch and shouldn't be told by the Executive which cases to hear.

Furthermore....

The court may have actually decided that the case was adequately decided already at the Circuit Court level. At least sufficiently that granting it cert in the narrowly divided SCOTUS would just cause a lot of controversy without arriving at a significantly different finding.


Now,

If conservatives would stop moaning about how GWB isn't being conservative enough despite a legislature divided on the narrowest of margins and a senate that is divided against conservatives, and realize that he's got to win the senate over to a conservative majority in order to push through conservative federal justices and programs, then we might actually stand a chance of one day having a SCOTUS that is conservative enough to hear a case like Emerson and decide it the way the Constitution and BOR would intend.  BUT, if conservatives continue to fail to see beyond their end of the nose and the short term moves that GWB needs to make to win Republican seats in the legislature, and continue to vote for fringe candidates "to make a point,"  we won't ever see it happen.  The liberal democrats will continue to control which appointees see the light of day, which bills go up for the Presidents signature or not and what compromises he is forced to make to get anything done at all.

Let me say it again.  It is CRITICAL that the Republicans regain control over the Senate so that we can get some conservative judges appointed to federal benches.  It is critical that the republicans regain control of the seante so they can steer the bills being heard in more conservative directions instead of having to fight and compromise for everything.

If the seante is regained, we'll get to see GWB's conservative colors in action, otherwise we'll see more years of compromise and less than satisfactory, but politically acceptable legislation and appointees.

Rats. I was hoping we could stuff it to the Brady Bunch without any ambiguity.

Oh, well. The findings of the lower court are still pretty darn' powerful, thank you very much. I'll take victories wherever I can find them.

The court receives briefs from both the appellant and the government arguing why the case should, or should not, be heard by the court.  These are basically opening arguments and there is nothing "back door" about them. Both sides have an equal opportunity to sway the court to grant or refuse cert.  Emerson's side failed to make their case.

Doesn't this mean that we can fall back on the 5th Circuit Court's ruling?  I know it kinda sucked because they let the charges against Emerson.  

I wish it would go to the SCOTUS, this case or another, so they can FINALLY say that the 2nd protects the rights of INDIVIDUALS.  

Too many ambiguous cases in the past...

Icemanat95, I'm absolutely certain that Asscroft's request to the Supremes that they NOT hear these cases had absolutely nothing to do with their refusal to hear them.  After all, surely they wouldn't give any weight to the Attorney General of the U.S. -- I'm sure that the Supreme Court only looked at the briefs and made their decision based on the merits of the cases.

Yes, indeed, we need more strong pro-gun Republicrats like Asscroft to Protect Our Rights and Stand Up For Gun Owners.  That way, maybe we won't lose too many rights over the next few decades -- five-round magazines are surely enough for anyone, and who really needs a semiautomatic assault weapon anyway?

You should be commended for your strong support of the rights of gun owners and the Republicrat Party.

First off, I'm sure that whatever Ashcroft may have had to say would have an effect, but the SCOTUS doesn't work for Ashcroft.  If they told Ashcroft to take a flying leap there is NOTHING he could do about it.  Ashcroft works for the Executive Branch, SCOTUS IS the Judicial Branch.  Bush has not appointed a single member of SCOTUS and SCOTUS is only narrowly divided in favor of conservative issues so I can't see a single reason why SCOTUS would feel beholden to obey the wishes of Ashcroft or even Bush himself. It also does not require a majority opinion of the SCOTUS to grant cert I believe it takes only 4 justices out of 9 for the court to take the case, so more than one of the conservative justices must have thought things stood pretty well for the time being.

As to conspiracy theories, just as Hillary's "vast right wing conspiracy" was all wet, so too the thought that the left wing could have a huge conspiracy to do whatever.  Government just ain't that organized and they can't keep their mouths closed long enough for a conspiracy to remain secret.

As to standing on the second amendment principle...How many of us live our lives without ever making a compromise?  How many of us can buy whatever guns we want, whenever we want them, go shooting whenever we want to, go on vacation whenever we want to, say whatever we want to our bosses and neighbors, etc.?  Not a single one of us I suspect.  The guy who does is living alone in a cabin someplace, unemployed, poaching game for food, unmarried, no kids, etc.

In the real world people have to make compromises to address all the various needs, desires, values, etc not only of themselves, but of those that closely impact their lives.  So instead of having 40 guns in my gun collection and driving exactly the truck I want, living on my own private 200 acre preserve in North Central New Hampshire spending my days either shooting on my private range or building furniture in my own private tricked out woodshop, I have a handful of well chosen guns, drive a truck I can live with and which was cheap, and will likely wind up on a much smaller private preserve in Northern Massachusetts close enough to where I and my wife work so that we can afford the house, put some money away for retirement and send the kids to college.  I have to make compromises.

Continued

Continuing

Being president is pretty much the same way except instead of caring for the interests of a family he has to care for the varying and often widely divergent interests of a nation of 276 MILLION people.  To help him he has a pile of representatives of the people many of whom would like to sit in his seat or at least see him go home at the earliest possible opportunity so they can put someone who thinks more like they do in his seat. His neighbors are far more of a problem than the guy next door who bitches when your dog barks at 4 am...they are other nations, some of whom have nuclear weapons or the ability to seriously impact the inflow of resources you need.   So a president and his staff doesn't just have to deal with a few compromises, but thousands of compromises.  Trading off something here to get something else done there, standing on this principle here, but knowing that in so doing he may lose ten thousand votes on another issue that is also important, but maybe not as important.

I will guarantee you that if Harry Browne or whoever the libertarian candidate the next time is, gets elected to the Presidency, he will become ineffective and probably be impeached and convicted within a matter of months or he will end up pissing you and others off because he is making too many compromises.

BTW, nowhere in that article does it state that Ashcroft asked the court not to take the case.

It ain't the way I or anyone else would like it to be, but it is the real world.

I'm not at all surprised that SCOTUS denied cert. in both these cases.  Both decisions were IIRC unanimous ones in which the Government "won."  This was also why, despite the Justice Dept. reversal on the "individual rights" position, Solicitor General Olsen's briefs asked SCOTUS not to hear them.  

But sooner or later, SCOTUS is going to have a case they can't dodge.  And as others have said, I hope it's after the conservatives get another seat on the bench.

Man, I hope so too. It could be a long time coming though...

Gee, someone sure is into rationalizing that actions of the republicans. After all, gun control from democrats = unconstitutional, but the exact same gun control from the republicans = a reasonable compromise.

HAHA!

Wake up. The 2nd Amendment has been infringed to such a point now due to DECADES OF APPEASEMENT and gradualism. There never were any compromises made- look up the definition of the word.

The only conspiracy theory I have heard here is that the republicans sincerely want to get rid of gun control.

Doesn't matter whether the article mentioned it or not.  The article also didn't mention Bush's avowed support for the "assault weapon ban".  Ashcroft did in fact ask the court not to bother hearing the appeals, on the same day he announced that his personal opinion is that the Second Amendment applies to individuals.

Too bad his personal opinion doesn't amount to a hill of beans once he's out of office in two and a half more years.  Or six and a half, whichever.  Either way, it's a stick the Republicans can hold over you -- they WANT you hogtied and helpless.

But I'll grant that you probably didn't notice that since you were too busy leading a pro-Republican rally.  Couldn't hear the announcement's fine print over the cheering, I guess.

That's all well and good if you live in the jurisdiction of the 5th circuit--but outside of that, the majority of the federal court system believes in a collective right to bear arms, regardless of what the DOJ says--and isn't that grand?

You fail to understand the way the SC works. They put a lot of weight on what the Solicitor General says. If he doesn't want it heard, it most likely doesn't get heard, and visa versa. This is why they call the SG the 10th Justice.

Well,  ONE of you fails to, anyway...

I hope you are not insinuating that it is I who doesn't understand, because they you would be completely wrong.

Yes you are wrong and will continue to be wrong until you start towing the party line.

That's "toeing" the line.  Baaaaaaaaah.

Its not nearly as potent as US v Emerson, but US v Bean looks to be a nice case.  

Basically, its about the ATF refusing to restore the rights of citizens who have had felony convictions, because Congress has marked their budget to not be used for that purpose. Bean was an FFL, in Texas for a gunshow, and he and his buddies decided to go to Mexico for dinner.  They didnt clean his Suburban well enough, and left a case of shotgun shells in the back, which the Mexican border patrol found.  Possession of even a single round of ammo is a felony in Mexico, so Bean went to the slammer for a couple months in Mexico, then he was transfered to a US prison, where he was freed about a month later.  Because he was an FFL, he obviously wants his gun owning rights back, so he petitioned the ATF to start the process and they refused (as they had no budget for it), so he sued in Federal court and has worked his way to the Supreme Court.

I believe he will win the case for a few reasons:
1. What he did was not a crime in the US (possessing ammunition)
2. The situation was not intentional (unlike Haney, where he walked into a police station and declared his crime), the SC likes such cases.
3. He doesnt bring up the Second Amendment by name, he is just suing the ATF to get his rights back (he only mentions his gun owning rights, not his Second Amendment rights, from what I have seen)
4. The Mexican judicial system isnt world-renown for being careful about the rights of the accused, so his conviction is on shaky ground.

Kharn

I am not "insinuating" it, I am flat out saying it.  And I am completely right.

Years and years before our grandfathers were born it was decided by the highest court in the land that the court itself, because of the nature of "We the People," had no right to decide on the Constitutionality of a law. It is simple logic, would you give the opposing team the authority to make and judge the rules while leaving yourself with no say?
The court in question here, commonly known as the Supreme Court, is not the court that our Founding Fathers envisioned. It is a court of judicial review that makes decisions on the basis of due process and not the Constitutionality of the law. (See the Slaughter House cases and Marbury v Madison.)
It was decided by the court that only the people had the right to decide on the Constitutionality of a law and thus jury nullification was derived. Jury's, along with their verdict, gave the reasons as to why they came to their decision.
Because of the current makeup and corruption in the judicial system and the tainting of lawyers we no longer have the opportunity to do this.
For years now we have allowed the Constitution to be corrupted by this court system and the politicians who make the laws. If common sense were to prevail and the average juror and voter had any idea what his duties were the issue of gun control might long ago have been laid to rest. Instead we wax-on aimlessly as to why our rights are being flushed down the drain.
Next time you have the opportunity to serve on a jury do so and make your fellow jurors aware of what their obligation is to freedom.

Yep! It is "The People" who are supposed to judge both the facts, and the law (or the Constitutionality therof). As freemen (and women), "We The People" are supposed to be the real power in our nation.

raf, your interpretation is incorrect. When the judge charges the jury he informs them that they must convict or acquit based on the law that they have been given. Therefore, the juror has only one option and that is to make his determination based on the content of the law and not on whether that law meets Constitutional muster. So, regardless of the law itself the judge has told the juror that he or she must convict on that basis.
If the individual juror does not like the defendant it matters not if this juror understands the concept of jury nulification. One of the reasons we have a jury of 12 is to overcome such prejudices. The law is there for this prejudiced juror to convict on so his personal opinion is not the issue but it does matter if there are other jurors who have the knowledge and good sense to note that something is unjust.
A personal question to you, raf, is why you rail against jury nullification? Whenever I read someones doubt of an issue that is clearly in the best interest of the people my ears perk up and I wonder.

[zombie]DO NOT QUESTION REPUBLICAN ACTIONS[/zombie]

lol

ok i got one

[blindyfollow partylines]