DOJ Report confirms individual right to bear arms

[Fly320s]

The Attorney General's statement is nice, but in 2008 becomes irrelevant.

True. But since we have a pro-gun President, AG, Congress and Senate (at least in theory - Republican majority), maybe we can get some legislation passed or removed as appropriate.

Then in 2 years and 4 years we can reelect the good and eject the bad.

We have 4 years to make our mark. Start drafting those letters and get the phones warmed up for January.

 

[Brett Bellmore]

I'll buy that description (pro-gun) for the Republican House. It's a stretch for the Senate, as the vote on poison pill amendments to the "Lawful commerce act" proved. Bush is only pro-gun compared to the Democratic alternative. (Last I heard, he still had a list of NEW gun control laws he wanted.) And I've no idea where the new AG stands on this issue.

 

[Lone_Gunman]

Fly320s,

I think you may be sniffing too much glue if you think any gun laws will be repealed in the next four years.

How often has that actually happened?

 

[Kharn]

I believe it was US v Lopez that struck down the federal prohibition on firearms in school zones as unconstitutional.
Parts of the 1968 GCA were reversed by the 1986 FOPA.
Various laws against ccw have been reversed by the various state legislatures.
And, most recently, the AWB was allowed to expire.

Kharn

 

[Fly320s]

Fly320s,

I think you may be sniffing too much glue if you think any gun laws will be repealed in the next four years.

No glue for me, thanks. I'll stick with gold spray paint.

How often has that actually happened?

Doesn't matter. We can't win if we don't try. Or are you satisfied with the current gun laws?

 

[Lone_Gunman]

Kharn, of the points you made, only one of them qualifies as an example of federal legislators overturning previous gun laws.

 

[Kharn]

True, but there's more than one way to skin a cat.

Kharn

 

[beerslurpy]

I predict sporting purposes will fall in the next 4 years.

If we get lucky, the supremes will side with Raich over Ashcroft, which suggests a very favorable conclusion to stewart. Favorable stewart means 922(o) overturned I would expect.

Our big gains will come if we can elect a pro gun president after bush. I suspect thats when the liberal holdouts on SCOTUS will give up waiting and just retire. Right now I expect Rhenquist, O'Connor and maybe Stevens, who doesnt have any known health problems but is older than the bible. Next term, I predict maybe ginsberg and any of the three who make it through this term. I expect Souter, Thomas, Kennedy and maybe Scalia to hold on the longest as they are relatively young and healthy. This is a good picture long term, but we will need a lot more clarence thomases before we start to get some refreshing opinions written.

 

[Sam Adams]

Beerslurpy

FYI, here are the ages of the Supremes:

Rehnquist 10/1/24 80
Stevens 4/20/20 84
O’Connor 3/26/30 74
Ginsburg 3/15/33 71
Scalia 3/11/36 68
Kennedy 7/23/36 68
Souter 9/17/39 65
Breyer 8/15/38 64
Thomas 6/23/48 56

I'm not so sure that "sporting purposes" WILL fall, though it clearly SHOULD (and, in fact, should have been challenged and eliminated shortly after it was adopted). I do believe that this DOJ memo will be a big help, as it is thoroughly researched and also focussed in on one issue - Does the Second Amendment protect (as opposed to grant) an individual or collective right? (whatever the latter is, I couldn't ever understand the concept). Once that question is answered by the Supreme Court - which, I am confident, will give great weight to the research in this document - then almost the entirety of the federal gun control system will begin to unravel, one case at a time. IF we get this recognized by the Supremes, we can help the unravelling process by getting a law proposed by a friendly Congresscritter and passed to recognize the law as it should be. All of which depends on "if," the biggest word in the English language (note that there's an old Jewish saying that "if your grandmother had b@lls, she'd be your grandfather").

The next step, after IF..., is to get the 2nd applied to the states. I personally believe that the 2nd already applies, all by itself; but if it doesn't, surely the 14th Amendment does so (as anyone familiar with the debates surrounding the adoption of the Amendment knows). We'll see - but first lets get the Court to recognize the 2nd as protecting an individual right.

 

[aroshi]

I'm glad that some agencies within the government are willing and able to put forth such a statement as this!

Reading through it, I was happy to see its thoroughness. I am glad that something like this exists, but as many of you have already pointed out, it doesn't amount to a hill of beans unless it effects some change. Whether that's a SC ruling, or some other pro-individual right action within the government, who's to say?

If only we could get a lot of these people over their fear and ignorance of firearms.

 

[Brett Bellmore]

The Fifth circuit said that it was an individual right, too. But Emerson still lost his case before them. IMO, whether it's an individual right isn't going to be where the real fight is. The extent of that right, and the degree of scrutiny laws impacting it will be subject to is where the real fight will occur.

To be blunt, the Supreme court is perfectly capable of declaring that it's an individual right, and at the same time upholding just about any gun control law you might care to suggest. It's not like their pay gets docked if their rulings don't make sense.

 

[Michigander]

To be blunt, the Supreme court is perfectly capable of declaring that it's an individual right, and at the same time upholding just about any gun control law you might care to suggest.

That's exactly correct.

Hence the complete (as far as I have read) lack of attention given to the "...shall not be infringed" phrase.

I'd be willing to bet a dollar to a donut that the DoJ was specifically instructed to not touch that phrase with a ten-foot pole. Reading the DoJ document, you'd almost forget that phrase was even a part of the Amendment.

 

[beerslurpy]

Incrementalism.

Individual right is a lot easier for most people to accept since most of the country still does beleive in that viewpoint.

Unfortunatley, hoplophobes abound even in relatively pro-gun areas. Most people still want some infringements on the right. Some less than others, but thats an easier debate to have once we agree that it is a right to be protected.

 

[RealGun]

Individual right is a lot easier for most people to accept since most of the country still does beleive in that viewpoint.

Near as I can tell what "most of the country" believes is that guns for citizens are for hunting. So the question is individual right to do what? Carry a gun? No, that's a regulated privilege. Own an automatic weapon? No, that's a regulated privilege. Own a militarily competitive weapon? No, don't be silly. Why would you need that? Only the police and the military need such weapons.

 

[beerslurpy]

Yes dumbass, that lack of agreement on the utility of guns is the reason we take the approach I pointed out.

1) secure individual right
2) question restrictions on that right

 

[RealGun]

Yes dumbass,

Ah yes, the High Road.

 

[P12]

Hence the complete (as far as I have read) lack of attention given to the "...shall not be infringed" phrase.

I'd be willing to bet a dollar to a donut that the DoJ was specifically instructed to not touch that phrase with a ten-foot pole. Reading the DoJ document, you'd almost forget that phrase was even a part of the Amendment.

I disagree.

It doesn’t address it directly. It does address it under section 3 ( The “Well Regulated†Militiaâ€) in paragraph 4.

“The Second Amendment simply forbids one form of inappropriate regulation,†which would ensure a militia that was not well regulated, namely “disarming the people from whom the militia must necessarily be drawn….. The one thing the government is forbidden to do is infringe the right of the people, who are the source of the militia’s members, to keep and bear arms.â€

I’ve read about 2/3 of the document so far and while I’m not a lawyer I find it very hard to see how someone could support a regulation that would disarm me or my fellow Americans from owning and private use of any weapon currently issued to an average foot soldier.

After reading this document it subversively but strongly implies that if I were called upon to defend my town, county or state and I didn’t show up with an M16 and pistol or variants that will accept current issued battle rifle and sidearm magazine and caliber I would not be well regulated.

The above quote from the document forbids this type of regulation.

What I get out of this document is the implication that the States have been derelict in their duties to train me twice a year with my privately owned military battle rifle and handgun.

 

[RealGun]

I find it very hard to see how someone could support a regulation that would disarm me or my fellow Americans from owning and private use of any weapon currently issued to an average foot soldier.

You are on the right track, but where is it provided that police SWAT teams would always have superior firepower, and that some rifles, really indistinguishable from common military issue, would be available in real terms only to the police? Where does it say that a prohibitive tax or severe regulation does not constitute infringement. Where does it acknowledge that the concept of a police force completely short circuits the logic of the 2A, when it comes time to actually talk about whether or not to regulate firearms.

To illustrate the point, well more than a century ago the Henry repeating rifle was a virtual "assault weapon" by comparison to muskets. There was no special logic applied to make sure that only the police could have them. There were no police, certainly not as we know them today. Everyone simply made it their business to get a Henry or similar design ASAP in order to be competitive, i.e. survive. The Winchester carbine followed.

What is logically comparable in todays terms is the police and military rifle with large magazine and three modes of fire; single, three round burst, and full auto. The fact that I cannot go out and buy that rifle under ordinary circumstances is what has happened to the 2nd amendment. The legal system just makes stuff up to enable the desired result, Dred Scott and forward. The 2A is an "embarrassment".

 

[Michigander]

I disagree.

It doesn’t address it directly. It does address it under section 3 ( The “Well Regulated†Militiaâ€) in paragraph 4.

“The Second Amendment simply forbids one form of inappropriate regulation,†which would ensure a militia that was not well regulated, namely “disarming the people from whom the militia must necessarily be drawn….. The one thing the government is forbidden to do is infringe the right of the people, who are the source of the militia’s members, to keep and bear arms.â€

The quote they cited is used only as a means of demonstrating the "individual-right" view. As far as the authors of the document are (apparently) concerned, the "...forbidden to [...] infringe..." part is circumstantial to their thesis.

And I agree with RealGun's last statement as well.

 

[tyme]

The Department of State's original statement (now replaced by the "under review" notice) can be read here:
http://web.archive.org/web/20040221180510/http://usinfo.state.gov/products/pubs/rightsof/arms.htm

 

[P12]

You are on the right track, but where is it provided that police SWAT teams would always have superior firepower, and that some rifles, really indistinguishable from common military issue, would be available in real terms only to the police? Where does it say that a prohibitive tax or severe regulation does not constitute infringement. Where does it acknowledge that the concept of a police force completely short circuits the logic of the 2A, when it comes time to actually talk about whether or not to regulate firearms.

That's my point. How can we fulfill our duty to our country with the current myriad of regulations? We can't unless we are well to do and can afford the cost of the tax and the inflated prices of the arms.

And speaking of taxes. Hasn't it been decided in court that a tax on a right is an infringement? Wasn't there a case about a poll tax several years ago.

If the courts can find their way to the 2nd Ammendment being an "individual right" it would be a small step to bring suit against the excessive taxes.

Throughout the document they put a lot of emphasis on earlier states constitutions. These strongly support the thesis that we should be trained "once or twice a year" and have use of these same weapons in between exercises so to be familiar with their use.

If I can't buy an MP5 or and M16 from a local gun store at a reasonable price, how can I fulfill the spirit of the statement "security of a free state"?

 

[RealGun]

It's not the tax on an automatic weapon that bothers me so much as being a registered owner. What is it, class III? I would be on "the collection list". No, what we need is no special treatment for those rifles. You get checked out at point of sale and that's it. The "checking" part does not include exactly what it is you want to buy, just are you a felon or not or does the sheriff have a DV restraining order on you.