Pardon me if this has been brought up before, but Ashcrofts announcement that the Second Amendment protects an individual right to arms has overshadowed the fact that he has urged the Supreme Court [i]not[/i] to hear either of the Second Amendment cases up for appeal.

If he truly believed the Second Amendment protected an individual right, wouldn't he [i]want[/i] SCOTUS to finally define just what the Second Amendment protected?  Isn't this court the most likely one in recent history to declare that the right is an individual one, and that "weapons of military usefulness" and "in common use at the time" are protected?

Of course, if SCOTUS hears Emerson and declares that the Second Amendment does protect that right it won't mean much.  After [i]U.S. v. Cruikshank[/i] and [i]Presser v. Illinois[/i] the Second Amendment remains the only "fundamental right" not protected against State infringement under the "priviledges and immunities" OR "due process" clauses of the 14th Amendment.  [i]Emerson[/i] concerns a [i]Federal[/i] statute, not a State one.  SCOTUS can't use it for incorporation anyway.

Damn, I'm pissed.

Actually, part of both Emerson and Haney involve 4th, 5th and 14th amendment issues of "due process".  If SCOTUS were to affirm the 2nd as an individual right, that could be used to force inclusion, because it then becomes a "fundamental" (originating from the Constitution) right, and therefore binding on the States through the 14th amendment.  The SCOTUS already decided, though, that "concealed carry" did not bear a reasonable relationship to a well-regulated militia, and therefore was subject to State law... so "open carry" becomes the law of the land, but not concealed.

Oh well...

Hmm.  I disagree on a couple of points.  

First (I'm not up to speed on [i]Haney[/i] so I'm limited to [i]Emerson here[/i]) because the statute in question in [i]Emerson[/i] is a FEDERAL one, a decision concerning "due process" would not automatically make the "individual rights" understanding be binding on the states.  In order to do that, SCOTUS would have to overturn a STATE law on 14th Amendment grounds.  If I'm wrong, please explain why.

Second, the States are free to give [i]GREATER[/i] freedoms than the Federal government, but not [i]less[/i], so State concealed-carry laws would not be in conflict with an individual rights interpretation of the Second Amendment.  However, the Federal government, if it so desired, could make concealed-carry illegal nationwide - and make it stick.  (That which is not prohibited is allowed.)  

However, I would like to say that I do understand that Ashcroft is doing his job.  The U.S. "won" the [i]Emerson[/i] and [i]Haney[/i] decisions, and it isn't the job of the Justice Department to want to see those decisions overturned no matter who is in the AG's chair.

I fully expect SCOTUS to dodge the question again anyway, regardless of the position of the Justice Department.

Funny, but the anti-gun talking heads I just saw on PBS think that Ascroft is getting the Supreme Court to repeal all gun control laws in the country...

Interesting how opinions on the same statement seem to diverge, everyone in the gun control movement thinks that this is going to be their end- and every one who supports the right to bear arms ALSO thinks that this is going to destroy their cause...

How very odd...

Perhaps I should have said, "will give impetus to a future challenge on 14th amendment grounds".

I assume you've read the petition for cert.  I don't know how to create the link, but the URL is:  http://www.saf.org/pub/rkba/Legal/EmersonSupremeCourt.htm

I'm specifically thinking of the section (and the phrase "by State or by Congress") that reads:

It has long been the case that when a fundamental right has been trod upon by legislative enactment, either by a State or by Congress, the federal judiciary will subject such an enactment to strict scrutiny, allowing the statute to stand only if: (1) it is narrowly tailored, and (2) serves a compelling governmental interest. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (First Amendment); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (First Amendment); United States v. Fox, 248 F.3d 394 (5th Cir. 2001) (First Amendment); Estiverne v. La. State Bar Ass’n, 863 F.2d 371 (5th Cir. 1989) (First Amendment); Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (Fifth Amendment); Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (Fifth and Fourteenth Amendments); United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (Fifth Amendment); Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Fifth and Fourteenth Amendments); Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Fourteenth Amendment). A right is considered to be fundamental when its source, either direct or indirect, is the Constitution. Plyler v. Doe, 457 U.S. 202, 217 n. 15, 102 S.Ct. 2382, 2395 n. 15, 72 L.Ed.2d 786 (1982); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1296-1297, 36 L.Ed.2d 16 (1978). A fundamental right has also been characterized as one "deeply rooted in this Nation’s history and tradition." Moore, 431 U.S. at 503, 97 S.Ct. at 1937.[8] As noted supra, "there is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples, 511 U.S. at 610, 114 S.Ct. at 1799.

It seems to me that most of those cites are 5th and 14th amendment related.  But then again, I'm not a lawyer (and don't want to be one).

What I meant by the "concealed carry" problem isn't the States that permit it... but rather, that States like mine (IL) are still free to prohibit it, even if "keep and bear" means "keep and bear".

If you read the article closely they say that they don't want the Supreme Court to test their new stance NOW.  That doesn't mean they don't want it ever tested.

I tend to agree.  Do you want the current Supreme Court to hear it or would you rather a Supreme Court with two justices replaced by GW Bush appointees to hear it?  With the current court it would be a close call, similar to how the election went.  I'd rather wait for the new Bush appointed justices.

When are those Justices supposed to retire?  Of course unless Bush takes back the Senate it will be a huge battle to get anyone approved.

That isn't what I saw.

Oh?  And when will there be another test case available??  If the SC refuses to hear [i]Emerson[/i], they won't get to re-decide on it in a year, or two, or five, or ten, or ever.  It's over, done with, good-bye, piss off!

Will Bush's appointees (assuming he gets to make any appointments) still be on the court by then?  What if the only one to retire is O'Connor?  We'll still be stuck with Clinton's appointees for decades, and they're the worst (along with Souter) -- all of the "bad" ones are young.

What makes you think Bush II will bother to appoint any pro-gun-rights Justices to begin with?  Neither Reagan and Bush I cared about the issue at all.

The SC has been sidestepping/ignoring this issue for far too long.  It's about damn time that they ruled, and [i]Emerson[/i] is a reasonably good shot at it.