THE BIG STORY
Two Supreme Court briefs have just
made history. U.S.
Solicitor General THEODORE B. OLSON asserted that the Second Amendment protects an individual right.
The Justice Department’s long-standing
position has been that the Second Amendment only protects a collective right of states to organize militias.
“Solicitor General TED OLSON took
the correct position by advising the Supreme Court that the Second Amendment protects the rights of individuals to possess their private firearms, regardless whether they are in
a militia,” said DAVE LaCOURSE, public affairs director for the Second Amendment Foundation (SAF).
The key case that OLSON briefed
to the Supreme Court was U.S.
v. Emerson,
which challenges the constitutionality of a federal law that prohibits gun ownership by citizens under civil divorce
court restraining orders, even if they have not been convicted of a crime.
A Texas district court judge ruled the law violated the Second Amendment rights of Dr. TIMOTHY JOE
EMERSON, who has since been acquitted
of all charges in state court. SAF was the driving force behind resolving this case favorably.
The Clinton administration Justice
Department appealed to the Fifth Circuit Court in New Orleans, which last year reversed and remanded Emerson’s
case back to the Texas court, while at the same time affirming
District Judge SAM CUMMINGS’ ruling that the Second Amendment is an individual right.
OLSON’s position as Solicitor General
requires him to defend federal laws when they are challenged in the courts. He asked the Supreme Court to refuse
to hear the firearms-related cases of U.S. v. Emerson and U.S. v. Haney.
However, OLSON argued that the laws under review are constitutional, based on the administration’s view that
the Second
Amendment allows
“reasonable restrictions
designed to prevent possession [of firearms] by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.”
OLSON’s brief also stated that
Department of Justice (DOJ) will continue to defend “all existing federal firearms laws,” and that the DOJ “has
a solemn obligation both to enforce federal laws and to respect the constitutional rights guaranteed to Americans.”
The Libertarian Party called the position “politically schizophrenic,” because it says that individuals have a right to own a gun while pledging to enforce laws that infringe on that right.
Predictably, anti-gun advocates
weren’t so analytical. They went ballistic.
MICHAEL BARNES, president of the
group formerly known as Handgun Control Inc., said that an “extreme ideology on guns has now become government
policy.”
Anti-gun Senator CHARLES SCHUMER (D-NY) fumed at the reversal.
The Los Angeles times quoted unnamed “scholars
and gun control advocates” as calling the change a “‘radical’ shift in position” that “alarmed” them.
The “radical” and “extreme” Justice
Department, though, turns out to be in good company. Supreme Court Justice JOSEPH STORY, the most respected early
19th-century justice - except perhaps for the great JOHN MARSHALL - also took the view that the right belongs to “the citizens,”
not the states.
Same for Michigan Supreme Court
Justice THOMAS COOLEY, the leading constitutional-law commentator of the late 1800s. He said the right belongs
to “the people,” like it says in the amendment.
The Citizens Committee for the Right to Keep and Bear Arms (CCRKBA),
a prominent gun rights
group, applauded OLSON and Attorney General JOHN ASHCROFT for reversing “forty years of constitutional illiteracy.”
CCRKBA Executive Director JOE WALDRON
said, “For over forty years, anti-gun Attorneys General, along with some federal courts that blindly accepted -
apparently without reading - a popular, if erroneous, interpretation of the 1939 Miller decision, have practiced
what amounts to constitutional illiteracy.”
“No one questioned the individual-right
interpretation of the Second Amendment in the first 150 years of our national existence,” WALDRON continued. “In
the DRED SCOTT decision, Chief Justice ROGER BROOKE TANEY noted that if SCOTT were considered a ‘citizen,’ he would
also have a right to bear arms.”
WALDRON blasted anti-gun groups for clinging to the “collective
rights” interpretation, and criticized media reports that portray the Second Amendment as “granting” a right to
bear arms.
The Bill of Rights doesn’t “grant”
anything,
WALDRON emphasized. “The Bill of Rights affirms that certain individual rights exist and must be protected from
government infringement,” said WALDRON. “The fact that the Framers specifically included the right to bear arms in our Bill of Rights is proof they held this individual right in high regard and wanted it protected.
“Anti-gunners want to perpetuate a myth that rights are
granted by the Constitution, and thus may be subjected to political whim. The Justice Department’s announcement should
moot that argument.”
EUGENE VOLOKH, professor of constitutional
law at UCLA, went into detail about the Miller decision and what it really means about the right to bear arms. “The 1939 U.S. v. Miller decision did
say that the right extends only to arms that are related to the militia. But it also specifically stressed that
‘militia’
meant ‘all males physically capable of acting in concert for the common defense,’ and that ordinarily ‘these men were expected to appear bearing arms supplied by themselves.’
“So the Ashcroft Justice Department
may be going against the views of past Justice Departments, and of most federal courts of appeals, which have indeed
endorsed the states’-rights view of the Second Amendment. But it’s returning to a much broader consensus: the view,
adopted throughout most of the nation’s history, that the ‘right of the people to keep and bear arms’ is as individual
a right as ‘the
right of the people to be secure...against unreasonable searches and seizures’ or ‘the right of the people peaceably to assemble, and to petition the government for a redress
of grievances.’”
Astonishingly, even some big-city
newspapers editorialized in
favor of
the ASHCROFT position, including the Philadelphia Inquirer. “Ashcroft deserves credit for trying to reestablish
a logical base for America’s gun laws,” wrote the newspaper.
“The anti-gun lobby loves the theory
that the right to keep and bear arms is not an individual right, as are all the others mentioned in the bill of
rights. In a tortuous revision of history, they claim the amendment applies to the collective rights of state governments.”
ASHCROFT’s position, said the Inquirer,
“restores the government position to its original status before 1939.”
We’ll
see how it works out in the Supreme Court.
GARY WANTS TO REINSTATE
ITS ANTI-GUN LAWSUIT
The City of Gary has asked the
Indiana Court of Appeals to
revive its lawsuit against gun makers. Gary’s lawsuit was thrown out last year by a Lake County judge who
dismissed it as unconstitutional.
Gary is one of 32 cities, counties
and states nationwide to sue gun makers, accusing the industry of lax distribution methods that make it easy for
criminals to obtain guns.
The accusations are transparent harassment techniques brought
by ideological attorneys, according to
critics of the lawsuits. “I find it a form of legalized extortion,” said MIKE HILTON, owner of Pop’s Guns in Indianapolis.
“If I lived in that town, I’d be upset as a taxpayer that they’re wasting my money on this.”
NEW YORK ATTORNEY GENERAL WANTS
ANTI-GUN LAWSUIT REINSTATED, TOO
ELIOT L. SPITZER, arguing his first
case since being elected New York attorney general in 1998, recently urged a panel of appellate judges to reinstate a novel lawsuit against
the firearms industry.
The state’s suit alleging that
gun manufacturers and wholesalers are liable for contributing to a public nuisance was thrown out of court by Manhattan Supreme Court Justice LOUIS B. YORK.
YORK ruled that the connection between the industry
and crime was tenuous.
Approving the
nuisance theory, said YORK, would have the unwanted effect of preventing legal businesses “from engaging in activities...that
they are permitted to engage in by law.”
SPITZER argued to the panel on
grounds that the connection was not remote, and that a court should hear the case. His arguments were not given a warm welcome by a panel that repeatedly asked him sharp questions. The panel took the case under
submission without issuing a ruling.
NEW HAVEN JUDGE GIVES SPLIT RULING
ON GUN CASE
New Haven, Connecticut Superior
Court Judge LUBBIE HARPER Jr. recently ruled that owner-operator taxi drivers are permitted to carry guns in the cab without obtaining a state
pistol permit.
But he also refused to dismiss
a permit
charge
against a local cabbie who shot and killed a fare who put a scissors blade to his throat and tried to rob him.
Defendant cab driver JOHN LUTTERS
was not
charged in the killing,
which was ruled as justified, but was charged with carrying
a pistol without a permit last year.
The judge ruled that the cab, although
mobile, was a place of business and that LUTTERS had an ownership interest in the cab, thus giving him the right to carry the pistol without
a permit to protect his property.
Judge HARPER denied a motion to
dismiss by LUTTERS’ attorney, saying prosecutors hadn’t had the opportunity to present evidence that LUTTERS carried
the gun outside the cab at any point the day of the killing.
DISABLED MAN CHALLENGES CHICAGO’S
GUN LAW
CHRISTOPHER MORLEY of Park Forest,
Illinois, has
filed a lawsuit against the City of Chicago arguing the city’s ban on handguns prevents him from defending himself against muggers.
MORLEY, 34, alleges that he is an easy target for attack while he travels to his job at
a graphics arts firm on Chicago’s West Side. The suit says he walks with the assistance of a cane and has been the victim of four crimes, including assault, stalking and menacing, near his office.
MORLEY’s
complaint alleges that Chicago’s ban on handguns violates the Illinois and U.S. Constitutions, which protects the
right to keep and bear arms and legally conceal and carry them for self-protection.
CANADA’S
REGISTRATION DEADLINE LOOMS
The Canadian Firearms Centre is
sending out reminder letters to hundreds of thousands of gun owners who have yet to register their firearms - about one-third of all gun license holders.
Holdouts who fail to register by
January 1, 2003 face five
years in jail
and seizure
of guns.
But many thousands of angry gun owners apparently intend to flout the law, which they consider pointless. Registering guns, they feel, will not curb gun use by criminals.
GERMAN
GUN MAKERS FACE TOUGH TIMES
Tougher gun laws in the wake of
the recent Erfurt school killings could mean the end for some of the 1,200 registered gun dealers in Germany.
Although overall economic stagnation
is one reason firearms manufacturers sell an ever smaller portion of their production in Germany, there is uncertainty
among the 1.5 million sport shooters and 400,000 hunters about the impact of the new laws.
About 100,000 jobs of firearms industry suppliers and tradesmen are at stake in the downturn of the German
gun market.
Ironically, the 5,000 people employed
by the gunmakers themselves are probably secure, since production for export is more than 80 percent of their output.
Thus, a decline in domestic sales would have a minimal effect on their jobs.
CHINESE
VILLAGERS MAKE GUNS FOR PROFIT AND PROTECTION
Communist China has virtually banned
gun ownership, but the
country is awash in firearms. Last year, police seized 1.34 million guns and solved more than 100,000 criminal cases involving
guns and explosives.
Guns come to Chinese citizens many
ways: from smugglers who bring them in from Hong Kong,Vietnam and Myanmar, rogue military factories, and small
village farmers where neigboring communities are feuding.
For example, last year people in
Lower Yuan Family Village in Jiangxi province found themselves faced with violence from the next village. Instead
of calling the police, who are frequently corrupt, they pooled $5,000 and worked from their homes to manufacture about 40 shotguns and more than
100 hand grenades.
When the neighboring bullies got
wind of the weapons, they backed off. But soon afterward, police confiscated the weapons cache and jailed the ringleaders
of the little gun co-op.
Yuan Shenggen, a 75-year-old farmer
said the
government seized their guns because “they were afraid we would turn against them.”
GHANA
TRAWLS FOR FIREARMS
The Ghanian Government has called
a two-week
amnesty for people in possession of unlicensed weapons to surrender them to the police.
MALIK ALHASSAN, the Interior Minister,
said that rewards might even be offered to those who would lead the police to uncover arms caches.
The amnesty followed a spate of
violent armed robberies in the capital city, Accra. The serial murders of 30 women in Accra also spurred the move.
STUDY
FINDS BRAZIL 2nd IN VIOLENT DEATHS
The rate of violent deaths in Brazil is second only to Colombia and getting worse, according to a new UNESCO study that said nearly 30 percent of the young
Brazilians who died in 2000 were shot to death.
The study compared recent figures
from 60 countries. It said that in Colombia, violence accounted for 60 deaths among every 100,000 residents, while
Brazil registered 26.3 violent deaths per 100,000 and Russia had 23.
Violence in Colombia is linked
to the decades-long civil war, while in Brazil it is mostly related to urban crime. Brazil’s government has submitted
a bill to sharply limit
the sale and possession of firearms.
LAWSUIT
PREEMPTION BILL GATHERS MOMENTUM
Bills in the House and Senate seek
to block politically-motivated lawsuits that attempt to hold law-abiding gun makers liable for the criminal misuse
of their products.
Thirteen Senators have signed their
name to S. 2268, introduced by U.S. Senators LARRY CRAIG (R-ID) and ZELL MILLER (D-GA).
The House companion bill, H.R.
2037, already has more than the required 218 votes to pass (227) and has gone through subcommittee markup.
Rep. CHRIS JOHN (D-LA), who introduced
the House bill with Rep. CLIFF STEARNS (R-FL), said these reckless lawsuits threaten billion of dollars in commerce.
If these baseless lawsuits are allowed to continue, every industry in America could be attacked in a similarly
baseless way, Rep. JOHN said.
NATIONAL
GUN LOBBYIST ENDORSES REPEAL OF D.C. GUN BAN
JOHN MICHAEL SNYDER, public affairs
director of the Citizens Committee for the Right to Keep and Bear Arms, has put his full suport behind a bill to
repeal the law that virtually bans handguns in the District of Columbia.
The bill, H.R. 4642, was introduced
in Congress by Rep. BRIAN D. KERNS (R-IN), would repeal the Firearms Control Registration Act of 1975. The bill
has been referred to the House Committee on Government Reform.
SNYDER said the D.C. gun law “makes
it legally impossible for a law-abiding private citizen to bring into or purcahse a handgun in the District.”
Even though neighboring Virginia
allows people to carry a concealed firearm, SNYDER asked, “what good does that do you in Washington, D.C., where
you really need one?”
ODD
COUPLE PUSHES FOR NICS REFORM
U.S. Representatives JOHN DINGELL
(D-MI) and CAROLYN McCARTHY (D-NY), two Democrats who usually have opposing views on guns, recently agreed with
each other enough to jointly introduce a gun bill, H.R. 4757.
A bill with CAROLYN McCARTHY’s
name on it is usually bad news for gun owners, but not this time.
This bill, called “Our Lady of
Peace Act” for a church in McCARTHY’s district where a mentally ill man killed a priest and parishioner during
Mass last March, would
take positive corrective steps to improve the ailing National Instant Check System (NICS). H.R. 4757 seeks to improve
the operation of NICS by pressuring all 50 states to ensure NICS has instant access to the records of individuals
who are prohibited from possessing a firearm.
The legislation does not address
larger issues that have separated McCARTHY and DINGELL, such as requiring background checks of up to 3 days at
gun shows.
McCAIN AND LIEBERMAN SEEK GUN DEBATE