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Anti-Gun Groups Contest Individual Right to Own Firearms
By Jim Burns
CNSNews.com Senior Staff Writer
June 18, 2002
(CNSNews.com) - U.S. Attorney General John Ashcroft and the Bush
administration have clearly stated their view that the Second
Amendment guarantees an individual right to keep and bear arms,
but that interpretation isn't stopping gun control groups from
pushing for more restrictions on firearms.
Gun control advocates cling to a 1939 U.S. Supreme Court ruling,
in which the justices said the Second Amendment protects only
those gun rights that have "some reasonable relationship to
the preservation...of a well-regulated militia."
Many believe the 1939 verdict in the U.S. v. Miller case
reinforced the individual's right to keep and bear arms, but only
those weapons commonly used in militias. The defendants in the
Miller case had attempted to transport sawed-off shotguns from
Oklahoma to Arkansas.
Others say neither the Miller ruling nor the Second Amendment
guarantee any individual right to bear arms, despite the position
recently staked out by Ashcroft and the administration.
"The Miller decision remains the law of the land and it
continues to be followed in the lower courts," said Mathew
Nosanchuk of the Violence Policy Center, a group that supports
gun control.
"If the lower courts have been misreading Miller for 63
years as the NRA and pro-gun advocates believe, the Supreme Court
has had ample opportunity to correct the error.
"Thankfully, the justices do not share Attorney General John
Ashcroft's enthusiasm for reinterpreting the Second
Amendment," Nosanchuk added.
In a letter to the National Rifle Association last year, Ashcroft
argued that the Second Amendment is indeed an individual right.
"While some have argued that the Second Amendment guarantees
only a collective right of the states to maintain militias, I
believe the amendment's plain meaning and original intent prove
otherwise," Ashcroft wrote.
Ashcroft's comments to the NRA were bolstered this spring by U.S.
Solicitor General Ted Olson, who argues the government's side in
cases before the U.S. Supreme Court.
In appellate court filings in two separate cases, Olsen wrote,
"The current position of the United States...is that the
Second Amendment more broadly protects the rights of individuals,
including persons who are not members of any militia or engage in
active military service or training, to possess their own
firearms.."
He added that firearms possession is "subject to reasonable
restrictions designed to prevent possession by unfit persons or
to restrict the possession of types of firearms that are
particularly suited to criminal misuse."
The Supreme Court refused to review the two cases where Olsen
weighed in. In both cases, individuals convicted of violated
federal gun laws asked that their convictions be overturned.
One case, Emerson vs. the United States, involved a doctor who
was charged with violating a federal law that makes it a crime
for someone to own a gun while under a domestic-violence
restraining order.
The other case was Haney vs. the United States, which involved a
man convicted of owning two machine guns in violation of the
federal law that bans machine gun ownership without appropriate
licenses.
In both cases, the administration argued that the firearm
restrictions being challenged were reasonable.
In refusing to hear the cases, the Supreme Court cited as
precedent the 1939 ruling in the United States vs. Miller case
that said the Second Amendment protects only those rights that
have "some reasonable relationship to the preservation of
efficiency of a well-regulated militia."
The Brady Campaign, formerly known as Handgun Control, Inc.,
believes the Supreme Court's rejection of the Haney and Emerson
cases represents a defeat for Second Amendment advocates.
"Every federal appeals court in the country, except two
judges on the Emerson panel, has rejected the NRA view, and has
held that the Second Amendment does not provide individuals with
a right to possess firearms absent a relationship with a state
militia," according to a statement from the Brady Campaign.
The actions of the Supreme Court, the Brady Campaign stated,
continued what it called "its unbroken string of defeats in
Second Amendment challenges to gun laws."
But the NRA believes the Supreme Court's refusal to hear Haney
and Emerson cases relieves the Bush administration from having to
further explain its position on the Second Amendment.