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."

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 [email protected]

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