Bush Redeems Himself

[MKSheppard]

Linka

Bush Lawyers Target
Gun Control's Legal Rationale

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
January 7, 2005; Page A4

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.

[Aaron]

Seeing as the subject has been brought up. If the citizens of the USA are allowed unrestricted access to firearms, why should they be allowed to possess military weapons? IE: M16's and the like, what possible need would a civilian have for a military or fully automatic weapon?

I'm curious as to the logic used to justify such possession as the AWB has expired.

[Chmee]

This from the same Justice Department that drafts memoranda that torture isn't really un-American, and thinks that making little kids pledge their fealty to Jehovah in class every day isn't a problem?

Give 'em points for consistency, they think the Constitution is more flexible than Gumby on Prozac.

[MKSheppard]

Give 'em points for consistency, they think the Constitution is more flexible than Gumby on Prozac.

Actually...considering that the most liberal court in the US did this:

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 and you live in the 9th Circuit's
zone)

Stewart Info
Stewart Ruling

[Chmee]

Give 'em points for consistency, they think the Constitution is more flexible than Gumby on Prozac.

Actually...considering that the most liberal court in the US did this:

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 and you live in the 9th Circuit's
zone)

Stewart Info
Ashcroft must have to take special anti-seizure medications to be able to mention a Ninth Circuit ruling without going into violent spasms ... usually their rulings are the work of The Debbil at the annointed one's Justice office.
Stewart Ruling

[Petrosjko]

Seeing as the subject has been brought up. If the citizens of the USA are allowed unrestricted access to firearms, why should they be allowed to possess military weapons? IE: M16's and the like, what possible need would a civilian have for a military or fully automatic weapon?

I'm curious as to the logic used to justify such possession as the AWB has expired.

AWB had nothing to do with automatic weapons, Corp. It banned semiautomatic lookalikes with a requisite list of features, as well as magazines with a capacity in excess of ten rounds, except for police use.

Since all that had to be done to evade the weapons end of the ban was to change the features around (remove the bayonet lug, for example) and there were tons of preban mags already in circulation that were not banned, it was a useless piece of legislation.

As for the justification for owning such weapons, when discussing the fundamental rights encoded in the constitution, the onus is upon the state to prove why such rights must be restricted, not upon citizens to prove why they should be able to exercise it.

[BlkbrryTheGreat]

Seeing as the subject has been brought up. If the citizens of the USA are allowed unrestricted access to firearms, why should they be allowed to possess military weapons? IE: M16's and the like, what possible need would a civilian have for a military or fully automatic weapon?

Jefferson always was the right to own firearms as a final check upon the possibility of a tyrannical state.

[Alyeska]

Seeing as the subject has been brought up. If the citizens of the USA are allowed unrestricted access to firearms, why should they be allowed to possess military weapons? IE: M16's and the like, what possible need would a civilian have for a military or fully automatic weapon?

I'm curious as to the logic used to justify such possession as the AWB has expired.

Your looking at it the wrong way. You have to justify banning something from the general public and prove that there is a significant danger. I don't have to justify to you why I want to buy something. I just have to be safe with it.

FYI, the AWB has nothing to do with military type weaponry. Those have been under regulation since the 1930s and some jackass in the Senate snuck a rider on a bill in 86' that stated no new automatic weapons may be purchased after 1986.

[Edi]

Seeing as the subject has been brought up. If the citizens of the USA are allowed unrestricted access to firearms, why should they be allowed to possess military weapons? IE: M16's and the like, what possible need would a civilian have for a military or fully automatic weapon?

Jefferson always was the right to own firearms as a final check upon the possibility of a tyrannical state.

Without touching on the issue of the right itself, by the time you need to take the gun out of the rack to actually individually defend what your country stands for, it's too late already, because it would mean the military already agrees with the illegal orders it's been given, and

Code: Select all

Fully Equipped Professional Military >>>>>> Uncoordinated Individuals with Man-portable Weapons.

Remember, the face of warfare has changed significantly since the day the 2nd was written.

Edi

[Petrosjko]

Jefferson always was the right to own firearms as a final check upon the possibility of a tyrannical state.

Without touching on the issue of the right itself, by the time you need to take the gun out of the rack to actually individually defend what your country stands for, it's too late already, because it would mean the military already agrees with the illegal orders it's been given, and

Code: Select all

Fully Equipped Professional Military >>>>>> Uncoordinated Individuals with Man-portable Weapons.

Remember, the face of warfare has changed significantly since the day the 2nd was written.

Edi[/quote]

Okay, let's follow that argument for a moment. Let's say that the US Gov went batshit insane and started executing citizens in the street. Let's say that the whole military is cool with this, as well as the reserves and national guard.

Leaving exclusively private armed citizens as the only means of resistance.

Okay, now taking the assumption that it's a lost cause...

Which I disgree with given that there are over a hundred million gun owners in this country vs. less than a million troops...

But we'll go ahead and say 'Yup, it's hopeless.'

So what then? Stand by and let it be done, or go down fighting? Let tyranny prevail, or at least make a statement even if it gets you killed?

At least you can die with your boots on.

[CaptainChewbacca]

Let me know when I can have this:



Then I'll know we've won.

[Glocksman]

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.

Umm...

He's the one with the blatantly political agenda here.

Noted scholars like Sanford Levinson, Akhil Amar, and even Laurence Tribe all state that the second is a individual right and not a state right.

Tribe and others also believe that the second does not preclude 'reasonable restrictions' on the right much like the first doesn't preclude restrictions on the right of free speech like libel and obscenity laws.
The debate is over just what are 'reasonable restrictions'.


That's not what Post is saying. What he's saying is that the 'individual right' interpretation is wrong. He's full of shit.

There is a huge body of scholarship on the issue and the great majority of it favors the individual rights stance adopted by the Justice Department.

[MKSheppard]

Remember, the face of warfare has changed significantly since the day the 2nd was written.

Every Swedish Family has a phamplet that says "TOTAL WAR- TOTAL DEFENSE" and opens thusly:

"Sweden wants to defend itself, can defend itself, and will defend itself...
We will never give up! Any announcement that resistance will cease is false."

Basically, Sweden would fight to the last man, the last bullet, and even the
last rock if the need arose.

[Petrosjko]

Umm...

He's the one with the blatantly political agenda here.

Noted scholars like Sanford Levinson, Akhil Amar, and even Laurence Tribe all state that the second is a individual right and not a state right.

Tribe and others also believe that the second does not preclude 'reasonable restrictions' on the right much like the first doesn't preclude restrictions on the right of free speech like libel and obscenity laws.
The debate is over just what are 'reasonable restrictions'.


That's not what Post is saying. What he's saying is that the 'individual right' interpretation is wrong. He's full of shit.

There is a huge body of scholarship on the issue and the great majority of it favors the individual rights stance adopted by the Justice Department.

Standard bullshit. It is funny that they choose a minority viewpoint to lambaste the idea.

It's disgusting how this is turning out. I don't trust the current SCOTUS to handle it, after the hash they made out of dealing with the Campaign Finance Reform business, but I'm not looking forward to Bush's appointments taking care of other business.

[Petrosjko]

Let me know when I can have this:

(Snip image)
Then I'll know we've won.

Ye flippin' gods, Chewie, what the fuck is that thing?

[Glocksman]

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.

Hell, just diagram the 2nd and you'll see that the 'well-regulated milita' bit is in no way a limitation on the body of the sentence.

Neil Schuman asked Roy Copperud to break it down.

After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the follow analysis (into which I have inserted my questions for the sake of clarity):

[Copperud:] "The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

"In reply to your numbered questions: [Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

[Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

[Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

[Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

[Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

[Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

[Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"

[Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

[Schulman:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."

[Copperud:] "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.'

[Schulman:] "As a 'scientific control' on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.'

"My questions for the usage analysis of this sentence would be,

"(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

"(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?"

[Copperud:] "(1) Your 'scientific control' sentence precisely parallels the amendment in grammatical structure.

"(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation."

[CaptainChewbacca]

Let me know when I can have this:

(Snip image)
Then I'll know we've won.

Ye flippin' gods, Chewie, what the fuck is that thing?

Some call it "The Equalizer", some call it "The Wrist-breaker". I call it my "Small Gun".

[Predator]

Why not nuclear weapons?

[mauldooku]

Which I disgree with given that there are over a hundred million gun owners in this country vs. less than a million troops...

But we'll go ahead and say 'Yup, it's hopeless.'

So what then? Stand by and let it be done, or go down fighting? Let tyranny prevail, or at least make a statement even if it gets you killed?

At least you can die with your boots on.

Do you honestly think that all 100 million gun owners would rise up in a coordinated, mass-revolt against the military? That's ridiculous. True, you'll get some people who'd actively resist the government, but how many people would forsake their family, job, career, and life to fight in a resistance movement? Considering that any marginally competent oppressive government would simply label any resistance action as 'Terrorism', (thus winning over the vast majority of the populance), you're not going to have near the numbers necessary to stand a chance. And what do you do against the military's artillery, armor, Navy, and Airforce?

[mauldooku]

Why not nuclear weapons?

Obvious public safety issue there

[Petrosjko]

Do you honestly think that all 100 million gun owners would rise up in a coordinated, mass-revolt against the military? That's ridiculous. True, you'll get some people who'd actively resist the government, but how many people would forsake their family, job, career, and life to fight in a resistance movement? Considering that any marginally competent oppressive government would simply label any resistance action as 'Terrorism', (thus winning over the vast majority of the populance), you're not going to have near the numbers necessary to stand a chance. And what do you do against the military's artillery, armor, Navy, and Airforce?

I never said that they would. But when you've got a hundred million, fifteen percent gives a massive numerical advantage. It doesn't have to be coordinated.

Armor, artillery, air force and so on are very nice when they have massed targets to hit. But what are you going to do when you have rebellious elements in LA? Bomb the city? Great job, create more recruits.

And as I posited, we're talking about seriously ugly government oppression that would bring this sort of thing on, such as 'executing people in the streets.'

That was just an illustration of the numbers. More realistically, there'd be no such thing because there would be massive problems with the regular military, not to mention the reservists and the National Guard.

[Ma Deuce]

Some call it "The Equalizer", some call it "The Wrist-breaker". I call it my "Small Gun".

Holy Crap! what caliber is that that thing?

[mauldooku]

Do you honestly think that all 100 million gun owners would rise up in a coordinated, mass-revolt against the military? That's ridiculous. True, you'll get some people who'd actively resist the government, but how many people would forsake their family, job, career, and life to fight in a resistance movement? Considering that any marginally competent oppressive government would simply label any resistance action as 'Terrorism', (thus winning over the vast majority of the populance), you're not going to have near the numbers necessary to stand a chance. And what do you do against the military's artillery, armor, Navy, and Airforce?

I never said that they would. But when you've got a hundred million, fifteen percent gives a massive numerical advantage. It doesn't have to be coordinated.

Yes, but how will you manage to pull off 15 million recruits into this resistance force? The number is still astronomically high.

Armor, artillery, air force and so on are very nice when they have massed targets to hit. But what are you going to do when you have rebellious elements in LA? Bomb the city? Great job, create more recruits.

Point, but again: You're not going to have enough people to hold a city, those you do have aren't going to be well-trained, aren't going to be well-coordinated and they aren't going to be well-equipped. Besides, if you can never hope to defeat an actual army, what realistic way do you have to topple a national government?

And as I posited, we're talking about seriously ugly government oppression that would bring this sort of thing on, such as 'executing people in the streets.'

This depends on the extent of the oppression and how obvious they are about it. What if they're executing (what they claim to be) serial murderers in the streets as (what they claim to be) a deterrence tactic?

Smart oppresive governments act slowly and carefully. Rights don't instantly vaporize; they take away the little things first and then proceed to the bigger ones. Your scenario might work if everyone in the local, state, and national governments became National Socialist supporters, but that's pretty far-fetched.

That was just an illustration of the numbers. More realistically, there'd be no such thing because there would be massive problems with the regular military, not to mention the reservists and the National Guard.

Agreed, but all of this depends on the nature of the oppressive government. If for whatever reason a brutally efficent but also passably intelligent oppressive regime comes to power, I see no hope for the 'common-man rebellion' to accomplish anything.

[Petrosjko]

Yes, but how will you manage to pull off 15 million recruits into this resistance force? The number is still astronomically high.

Pulled it straight out of my ass. But remember, we are talking Red States here.

Point, but again: You're not going to have enough people to hold a city, those you do have aren't going to be well-trained, aren't going to be well-coordinated and they aren't going to be well-equipped. Besides, if you can never hope to defeat an actual army, what realistic way do you have to topple a national government?

It's guerilla warfare. You don't have to hold the city. You make them shoot it up in a very loud and displeasing to the local populace fashion. Going Fallujah on LA will not go over very well.

This depends on the extent of the oppression and how obvious they are about it. What if they're executing (what they claim to be) serial murderers in the streets as (what they claim to be) a deterrence tactic?

Smart oppresive governments act slowly and carefully. Rights don't instantly vaporize; they take away the little things first and then proceed to the bigger ones. Your scenario might work if everyone in the local, state, and national governments became National Socialist supporters, but that's pretty far-fetched.

There were a significant number of goofballs dressing up in BDUs and joining militias after the passage of the Brady bill and the AWB. One of the virtues of the American populace is that they don't trust the government entirely.

Agreed, but all of this depends on the nature of the oppressive government. If for whatever reason a brutally efficent but also passably intelligent oppressive regime comes to power, I see no hope for the 'common-man rebellion' to accomplish anything.

Yeah, a passably intelligent government could get away with a lot. But who was the last intelligent president we had? Gotta go back a few decades. Our current system doesn't promote intelligence to the top. It promotes con artists. And the sad thing is that most senators and congressmen are even stupider.

I wasn't advancing a 'war of civvys vs. the government' in this argument, my point really was that if there was no other recourse and the government was so far gone that it was intolerable, it's better to take a stand than just go along.

[Patrick Degan]

I hate to have to break it to the "resist to the last man" crowd here, but no rebellion against a national government can succeed unless a significant portion of the military defects to the rebels, or at the least stands down in barracks and refuses to obey any orders directed against civilians. Ceauceascu in Romania wound up before a firing squad because this condition was fulfilled. The students in Tienanmen Square got rolled over by tanks because they counted on that happening but it didn't.

As long as any government has the strength and determination to maintain itself in power, and commands the loyalty of its armed forces to back its power, any rebellion against it fails and quite bloodily. That is the reality, and it is not negated no matter how much Second Amendment or Millitia Movement rhetoric you care to spew.

And just to underline the point, there are at least eleven states which can tell you how the last attempt at rebellion in this country went.