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Posted: 8/12/2001 6:48:26 AM EDT
http://web.star-telegram.com/content/fortworth/2001/08/09/columnist/1955936178.htm?template=articleTemplateID.htm Thursday, August 9, 2001 As flak flies on the federal level, gun owners should watch the states Whee,doggies, look at the folks at the Violence Policy Center squirm. The nation has an attorney general who dares to say publicly what he believes -- that the Second Amendment addresses an individual's right to keep and bear arms -- and the anti-gun rights people go into a 4-foot hover. Mathew Nosanchuk, a former Justice Department official in the Clinton administration who is now working in VPC's litigation office, was spitting venom last month over John Ashcroft's reading of the Second Amendment as "unequivocally" protecting the rights of individuals. How dare Ashcroft not mention United States vs. Miller, the 1939 Supreme Court decision that Nosanchuk contends says the Constitution guarantees militias, not individuals, the right to bear arms? Nosanchuk would have been an unhappy camper indeed if Ashcroft `had' brought up Miller. The attorney general would have looked at the entire decision and not just those phrases that the anti-gunners like to focus on. This case has been twisted by gun haters for the past 60 years as the definitive ruling that establishes the Second Amendment as a collective, not individual, right. A little history: Jack Miller was indicted for unlawfully transporting a short-barreled shotgun from Oklahoma to Arkansas in violation of the National Firearms Act of 1934. At the original trial, Miller's attorney filed a motion to dismiss, claiming that the portion of the firearms act under which Miller had been charged violated the Second Amendment. The trial judge agreed, and charges against Miller were dismissed. Miller promptly vanished. The United States filed an appeal directly to the Supreme Court. When the case was argued, no one was there representing Miller, so the justices only heard the government's side of the case. The Supremes never said the lower court decision was wrong. What they did was send the case back to the trial courts to answer whether a short-barreled shotgun is the type of firearm that was useful for the militia. The court did not question the individual right to keep and bear arms as asserted in Miller's original trial. If the court believed that the Second Amendment guaranteed only a right of the states, the justices would have dismissed his claim for lack of standing. In fact, the court said in Miller that the physically capable adult males who were called upon to act together as a militia for the common defense of the country are expected to supply their own firearms. How can they do that if they don't have an individual right to own them in the first place? In the 1886 Supreme Court decision known as Presser vs. Illinois, the court said: "The Second Amendment declares that it shall not be infringed, but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government."
Link Posted: 8/12/2001 6:49:08 AM EDT
Everybody gets their knickers in a knot over what the Second Amendment means or doesn't mean, when in truth they need to be taking the rights fight to the statehouse. Regardless of what a modern Supreme Court might decide on the Second Amendment, without question state governments have the authority to regulate firearms within their boundaries. God bless Texas because we have a state constitution that guarantees the individual's right to keep and bear arms. Article I, Section 23: "Right to Bear Arms -- Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime." "The Legislature shall have the power . . ." That's why this country has so many dad-burned different gun laws. That's why in Texas you can carry a concealed handgun with a permit, but you can't in Missouri. That's why in California you have to register certain "assault-type weapons," but in Texas you don't. But you know what? That provision of the state constitution isn't immutable -- just as the Second Amendment didn't show up in Philadelphia in the summer of 1789 chiseled on a stone tablet. It is, along with every other provision outlined in a political document, a political right granted by the people. Which means that "the people," if they have the collective willpower to do so, can take that right away. While keeping one eye on Congress, gun-rights advocates would be smart to keep the other -- and both ears -- turned to what is being proposed on the state level. Jill "J.R." Labbe is a `Star-Telegram senior editorial writer. (817) 390-7599 jrlabbe@star-telegram.com
Link Posted: 8/12/2001 7:21:35 AM EDT
That's some good info.
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