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Shot Full of Holes
Deconstructing John Ashcroft's Second
Amendment
Ashcroft Deconstructed
- Attorney
General Ashcroft: "While I cannot comment on any pending litigation..."
- Ashcroft Deconstructed:
This is easier said than done. It is an open secret that the unnamed
litigation on the Second Amendment in question is United States
v. Emerson, which now has been pending before the United States
Court of Appeals for the Fifth Circuit in New Orleans for more than
a year. In Emerson, a federal judge in Texas, Sam R. Cummings,
flouted more than a century of Supreme Court precedent to find that
the defendant, under an active domestic violence restraining order
that prevented him from possessing firearms, had his Second Amendment
rights violated. In a textbook example of judicial overreaching, Cummings
held that the prohibition on possession of firearms by persons under
domestic violence restraining orders violated the Second Amendment
and the due process clause of the Fifth Amendment.16
Emerson squarely conflicts with established case law. In briefs
filed in the Emerson appeal, the Department of Justice pointed
out that every federal court of appeals has subscribed to the interpretation
that the Second Amendment only protects firearm possession that is
reasonably related to the maintenance of a militia.17 The Justice Department's
brief is unequivocal:
Emerson's
challenge to the longstanding interpretation of the Second Amendment
wholly fails to counter the weight of Supreme Court precedent
and historical facts. He fails to provide any coherent argument
as to how the Second Amendment, with its introductory militia
clause, grants the right to bear arms completely untethered from
militia service. He completely ignores the historical context
against which the Amendment was drafted, which shows not only
that the Amendment was aimed at protecting the states against
the federal government, but that it grew out of a long history
of gun control. And, most importantly, he fails to come to grips
with United States v. Miller, 307 U.S. 174 (1939), the
case now recognized by every circuit as providing the definitive
interpretation of the Second Amendment.18
Furthermore,
the very same court of appeals that is reviewing the Emerson
decision rejected the claim that the Second Amendment secures an
individual right to bear arms in Kostmayer v. Department of Treasury19,
an unpublished decision issued more than a week after the trial
judge's decision in Emerson. Other courts deciding cases
since Emerson have been markedly critical of the trial judge's
Second Amendment holding, and have refused to follow it.20
-
Attorney
General Ashcroft: "[T]he text and the original intent of
the Second Amendment clearly protect the right of individuals to
keep and bear firearms."
- Ashcroft
Deconstructed: Not according to the United States Supreme Court
which, for almost 200 years, has been recognized as having the last
word as to what the Constitution means.21 Despite the primacy of the
Supreme Court's decisions on matters of constitutional interpretation,
Attorney General Ashcroft neglects any mention of the Court's 1939
ruling in United States v. Miller22 in his letter. This decision,
which has never been reversed or narrowed, is the controlling legal
authority on the Second Amendment. In upholding the constitutionality
of the National Firearms Act of 1934—the most restrictive piece of
federal gun control legislation ever enacted—the Court stated:
The Constitution
as originally adopted granted to the Congress power—"To provide
for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions; To provide for organizing,
arming, and disciplining, the Militia, and for governing such
Part of them as may be employed in the Service of the United States,
reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline
prescribed by Congress." With obvious purpose to assure the
continuation and render possible the effectiveness of such forces
the declaration and guarantee of the Second Amendment were made.
It must be interpreted and applied with that end in view.23
The Court's
analysis tracks both clauses of the Second Amendment, which reads,
"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." Thus, the right which the Second Amendment secures
is the right to bear arms in connection with service in a state-regulated
military organization. Miller holds that such a right is
not legitimately transformed into a right of any individual to acquire
and possess weapons.24 The right on the part of the people to arm
themselves in connection with organizing for the common defense,
under State control, is a far cry from a right to deregulated firearm
possession for personal defense or other use. In the days before
the existence of a national standing army, local militias provided
for the common defense of communities, and the Second Amendment
guaranteed militias the right to organize and arm themselves to
protect their individual states. The amendment was designed as a
limitation on Congress' power over the militia as provided for by
Article I, Section 8, of the Constitution. In the view of the Framers,
Congress' power over the militia, if left unchecked, had the potential
to emasculate the militia.
While the opinions of individuals not inside the court system—including
the U.S. Attorney General—as to what may or may not be constitutional
are often interesting, they are nonetheless purely academic. The
Supreme Court alone has the final, official word on what the language
of the Constitution actually means and how it should be applied.
In Miller, the Supreme Court reconciled restrictive gun control
legislation with the language and principles of the Constitution,
and the decision remains in force. Thus, if the Supreme Court has
declared that the Second Amendment is only to be interpreted in
light of its purpose to maintain the militia, anyone applying that
amendment, especially the Attorney General of the United States—who
is an officer of the Court and the nation's chief law enforcement
officer—must confine his interpretation of the constitutional text
in his official capacity to one that is consistent with the Court's
unambiguous reading of the provision.
Nor does the passage of time in any way diminish the continuing
force of the Miller decision. On the contrary, the fact that
the decision has not been weakened only makes it more unlikely that
the Supreme Court would alter the understanding of the Second Amendment
it describes in Miller. In Planned Parenthood of Southeastern
Pennsylvania v. Casey25, the Court, invoking the writings of renowned
jurist Justice Benjamin Cardozo, offered a comprehensive rationale
for its unwillingness to overturn past decisions:
The
obligation to follow precedent begins with necessity, and a contrary
necessity marks its outer limit. With Cardozo, we recognize that
no judicial system could do society's work if it eyed each issue
afresh in every case that raised it. See B. Cardozo, The Nature
of the Judicial Process 149 (1921). Indeed, the very concept
of the rule of law underlying our own Constitution requires such
continuity over time that a respect for precedent is, by definition,
indispensable.26
In order to provide
continuity in the legal system, the Court will not overturn its past
decisions unless the changing legal landscape renders them flatly
unworkable. Since the opinion in Miller is entirely consistent
with the language of the Second Amendment, and there are no Supreme
Court opinions which undermine its holding, there is no legal justification
for the Court to change its interpretation of the Second Amendment
and no basis for Attorney General Ashcroft to conclude that the Second
Amendment means something entirely different.
- Attorney General
Ashcroft: "While some have argued that the Second Amendment
guarantees only a ‘collective' right of the States to maintain militias..."
- Ashcroft Deconstructed:
The amorphous "some" cited by the Attorney General includes the Supreme
Court of the United States and every federal appeals court, which
have held uniformly that the Second Amendment does not confer an individual
right to bear arms independent of the right to be armed as part of
a well-regulated militia. In addition, "some" also includes Attorney
General Ashcroft's own Justice Department lawyers in Emerson,
the previous Solicitor General, some of the most eminent scholars
in the country, including Pulitzer Prize-winning historians Jack Rakove
and Garry Wills, and a host of constitutional law scholars and historians.27
Most recently, 11 leading legal and historical scholars, including
Professor Rakove, a preeminent constitutional historian at Stanford
University, offered their views on the Second Amendment in a special
symposium published in the Chicago-Kent Law Review28.
- Attorney General
Ashcroft: "Like the First and Fourth Amendments, the Second
Amendment protects the rights of ‘the people,' according to the Supreme
Court's decision in United States v. Verdugo-Urquidez."
- Ashcroft
Deconstructed: United States v. Verdugo-Urquidez29 does not
turn on an interpretation of the Second Amendment. In fact, the decision
barely mentions it. Verdugo-Urquidez dealt with non-U.S. citizens
who claimed that the Fourth Amendment protected them from unreasonable
search and seizure. The Supreme Court disagreed, holding that non-U.S.
citizens were not "people" within the meaning of the Fourth Amendment.
After identifying various places in the Constitution where the word
"people" appears, including the Second Amendment, the Court concludes
that "people" does not include non-citizens:
While this
textual exegesis is by no means conclusive, it suggests that "the
people" protected by the Fourth Amendment, and by the First and
Second Amendments, and to whom rights and powers are reserved
in the Ninth and Tenth Amendments, refers to a class of persons
who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part
of that community.30
Attorney General
Ashcroft seeks to graft a more expansive interpretation onto this
abbreviated discussion. He argues that because "people" appears
in the First, Second, and Fourth Amendments, the word must operate
the same way in each provision so as to confer an individual right
of comparable dimension. However, this neglects the Court's reference
to two other amendments that use the word people, the Ninth and
Tenth Amendments, neither of which protects an expansive individual
right. In the end, Verdugo-Urquidez answers the question,
"who are the people?," not "what are the rights of the people?"
To claim that Verdugo-Urquidez says anything about whether
the Second Amendment protects either the right of the "people" to
bear arms in military service under state regulation or an individual
right of the "people" to bear arms independent of the militia completely
misrepresents the limited scope of the Court's decision.
-
Attorney
General Ashcroft: "This view of the text comports with the
all but unanimous understanding of the Founding Fathers...."
- Ashcroft
Deconstructed: Attorney General Ashcroft identifies four sources
as evidence of the "all but unanimous" position regarding the right
to keep and bear arms that he ascribes to the Founding Fathers. However,
this conclusion rests upon an extremely creative and liberal reading
of the writings that he cites. Also, it is mystifying how Attorney
General Ashcroft can claim that these statements, even if they did
support his assertions in substance (which they do not), reflect the
understanding of the Founders regarding the Second Amendment. Not
one of the statements he cites was made in connection with the
debates over the ratification of the Bill of Rights and the Second
Amendment in 1791. Rather, every single statement was made at least
two years earlier—and in one case at least 15 years earlier—in connection
with either the ratification debate on the Federal Constitution or
a state constitution.
Ashcroft cites Federalist 46, written by James Madison, which
discusses the relative powers of the federal and state governments,
not individual rights. It addresses the subject of an armed citizenry
only in conjunction with the possible need to protect the political
power of the states from the reach of the federal government. Federalist
46 states:
Let a regular
army, fully equal to the resources of the country be formed; and
let it be entirely at the devotion of the Federal Government;
still it would not be going too far to say, that the State Governments
with the people on their side would be able to repel the danger.
The highest number to which, according to the best computation,
a standing army can be carried in any country, does not exceed
one hundredth part of the whole number of souls, or one twenty-fifth
part of the number able to bear arms. This proportion would not
yield in the United States an army of more than twenty-five or
thirty thousand men. To these would be opposed a militia amounting
to near half a million citizens with arms in their hands, officered
by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing
their affections and confidence. It may well be doubted whether
a militia thus circumstanced could ever be conquered by such a
proportion of regular troops. Those who are best acquainted with
the late successful resistance of this country against the British
arms will be most inclined to deny the possibility of it. Besides
the advantage of being armed, which the Americans possess over
the people of almost every other nation, the existence of subordinate
governments to which the people are attached, and by which the
militia officers are appointed, forms a barrier against enterprizes
of ambition, more insurmountable than any which a simple government
of any form can admit of.31
According to
Madison, the people are to be armed so that they can form a state-regulated
militia in order to defend the political powers enjoyed by the state.
Federalist 46 is completely silent on whether the people
should have the right to own weapons for individual self-protection,
whether they should be able to conceal weapons on their person,
or even whether they should be permitted to store them in their
homes.
The essay continues, stating that the right to bear arms exists
in relation to service in a militia that is formed to represent
the will of local governments. According to Federalist 46:
Notwithstanding
the military establishments in the several kingdoms in Europe,
which are carried as far as the public resources will bear, the
governments are afraid to trust the people with arms. And it is
not certain that with this aid alone, they would not be able to
shake off their yokes. But were the people to possess the additional
advantages of local governments chosen by themselves, who could
collect the national will, and direct the national force; and
of officers appointed out of the militia, it may be affirmed with
the greatest assurance, that the throne of every tyranny in Europe
would be speedily overturned, in spite of the legions which surround
it.32
Arming and training
the people to defend their government through a disciplined militia
cannot be accomplished solely by a militia that is unconnected to
any local government entity. Nowhere does this essay discuss arming
people for individual self-defense: Madison limits his remarks to
the discussion of arming people so that they may defend the governments
of their respective states.
Attorney General Ashcroft also cites Federalist 29, which
was penned by Alexander Hamilton. Like Federalist 46, this
essay does not discuss the right to bear arms for individual self-protection.
Instead, Federalist 29 offers a justification for the existence
and regulation of state militias, as provided for in the Constitution.
Federalist 29 is wholly an argument regarding the necessity
and feasibility of disciplining the militia to become a useful military
force. The general argument of Federalist 29 is summarized
by Hamilton:
It requires
no skill in the science of war to discern that uniformity in the
organization and discipline of the militia would be attended with
the most beneficial effects, whenever they were called into the
service for the public defense. It would enable them to discharge
the duties of the camp and of the field with mutual intelligence
and concert; an advantage of peculiar moment in the operations
of the army: And it would fit them much sooner to acquire the
degree of proficiency in military functions, which would be essential
to their usefulness. This desirable uniformity can only be accomplished
by confiding the regulation of the militia to the direction of
the national authority. It is therefore with the most evident
propriety that the plan of the Convention proposes to empower
the union "to provide for organizing, arming and disciplining
the militia, and for governing such part of them as may be employed
in the service of the United States, reserving to the states
respectively the appointment of the officers and the authority
of training the militia according to the discipline prescribed
by Congress."33
Thus, the right
of a citizen to be part of the militia carries with it substantial
responsibility. In order to bear arms in the militia, a citizen
must submit to rigorous military training and discipline, as required
by Congress. Hamilton does suggest in Federalist 29 that
the militia should be formed from the general population, which
would extend his earlier reasoning to mean that large parts of the
population should undergo strict training in military tactics. Federalist
29's vision of the bearing of arms arose wholly within the context
of militia membership, carrying with it responsibilities and restrictions.
If anything, this essay highlights the importance of the first clause
of the Second Amendment—which is often omitted by proponents of
the individual-rights view—making it determinative in understanding
the overall meaning and purpose of the provision. To cite Federalist
29 as support for the proposition that the Founding Fathers
endorsed an individual right to bear arms demonstrates a wholesale
misinterpretation and distortion of the document.
After misrepresenting Madison and Hamilton, Attorney General Ashcroft
proceeds to quote a line from Thomas Jefferson: "No freeman shall
ever be debarred the use of arms."34 Unlike The Federalist Papers,
which were written following the drafting of the Constitution in
1787 to support the document's ratification, Jefferson's statement
was written during consideration of the proposed constitution for
the Commonwealth of Virginia. It was not written in connection with
the U.S. Constitution and Bill of Rights. Moreover, Jefferson unveiled
it as early as 1776, 15 years before the ratification of
the Bill of Rights.35
Jefferson's seemingly broad statement suggests that the Framers
knew how to describe the right to bear arms in more expansive terms
if they had wanted to. They did not choose to. The Federalist
Papers reinforce the view that the contemporaneous thinking
around the Constitution envisioned a collective right to bear arms
that was related exclusively to the maintenance of state militias
as permitted by Congress, and that the Second Amendment is the product
of that thinking.
In Ashcroft's final reference to the supposed unanimity of the Founders,
he quotes George Mason at Virginia's U.S. Constitution ratification
convention in 1788 as stating:
I ask,
sir, what is the militia? It is the whole people....To disarm
the people is the best and most effectual way to enslave them.36
This quote is
misleading on many levels. First, while the quote appears to have
been derived from comments that Mason made at the Virginia ratification
convention, the words that Attorney General Ashcroft attributes
to him do not in fact represent a direct quotation. Ashcroft misquotes
Mason, presumably in order to make Mason's words more suited to
the Attorney General's ends. Also, by employing ellipses to denote
omitted text, Attorney General Ashcroft leads the reader to mistakenly
believe that he is quoting the relevant parts of a single discussion.
In fact, the quote is cobbled together from two different days
of the Virginia convention's debate on the Federal Constitution.
Even more misleading, the statement making up the second half of
the quote ("to disarm the people...") was actually made two days
before the statement making up the first half of the quote
("...what is the militia?...").
Moreover, as the Virginia debates appear in Jonathan Elliott's 1836
compendium, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution, the ellipses replace more
than 40 pages of debate! To string these two disparate comments
together with nothing more than ellipses, after having reversed
the order in which they appeared, creates the impression that Mason
was stating something completely different from what he actually
said. In order to understand what Mason was actually saying, these
two separate statements must be examined individually and in their
respective places in the ratification debate.
The context of the first half of the quote Attorney General Ashcroft
attributes to Mason at the Virginia ratification debates offers
considerable insight into how Mason might have understood a guarantee
like the one embodied in the Second Amendment. Mason made the statement
in connection with the Virginia Convention's debate over the provision
in the federal Constitution authorizing Congress to place limitations
on state militias. Mason stated:
I ask, Who
are the militia? They consist now of the whole people, except
a few public officers. But I cannot say who will be the militia
of the future day. If that paper on the table gets no alteration,
the militia of the future day may not consist of all classes,
high and low, and rich and poor; but they may be confined to the
lower and middle classes of the people, granting exclusion to
the higher classes of the people.37
Mason did identify
the militia with the whole body of the people, but he saw that the
ratification of the Constitution could change the composition of
the militia. Though he does not explicitly mention at this point
why he believes that the Constitution will have this effect, there
can be little doubt that his cause for concern is the militia clauses
in Article 1, Section 8, of the U.S. Constitution, which give Congress
the power "to provide for organizing, arming and disciplining the
militia." Mason apparently feared that the powers granted to Congress
in Article 1, Section 8, would result in the transformation of the
formerly universal militia into a body comprised of people from
only certain segments of society. Despite his understanding of the
militia as comprising all classes, Mason recognized that the Constitution
gives Congress the ability to change the composition of that body,
as established by Article I, Section 8. Nothing in Mason's statement
suggests that he believed that the Second Amendment overrules Article
I, Section 8. Moreover, Attorney General Ashcroft quotes from a
discussion that has nothing to do with an individual right to bear
arms, and the first half of the quote the Attorney General attributes
to Mason simply reaffirms that the Constitution grants Congress
the power to define the composition of the militia.
Attorney General Ashcroft derives the second half of the quote that
he attributes to Mason from comments Mason made two days before
he uttered the first half of the quote. Here, Mason approached the
militia question from a slightly different perspective. Mason stated:
An instance
within the memory of some of this house will show us how our militia
may be destroyed. Forty years ago, when the resolution of enslaving
America was formed in Great Britain, the British Parliament was
advised by an artful man, who was governor of Pennsylvania, to
disarm the people; that it was the best and most effectual way
to enslave them; but that they should not do it openly, but
weaken them, and let them sink gradually, by totally disusing
and neglecting the militia. [Here Mr. Mason quoted sundry passages
to this effect.] This was a most iniquitous project. Why should
we not provide against the danger of having our militia, our real
and natural armed strength, destroyed? The general government
ought, at the same time, to have some such power. But we need
not give them power to abolish our militia. If they neglect to
arm them, and prescribe proper discipline, they will be of no
use....I wish that, in case the general government should neglect
to arm and discipline the militia, there should be an express
declaration that the state governments might arm and discipline
them.38
Again, Attorney
General Ashcroft misquotes Mason. Mason was expressing a concern
about the regulation of the militia, suggesting that if Congress
abdicated its responsibility to arm and discipline the militia,
states should be able to do so to ensure that the militia continues
to exist. Instead of examining the militia from the vantage point
of the people who comprise it, Mason here discussed the manner in
which the militia should be provided with arms and disciplined.
And, contrary to the manner in which Attorney General Ashcroft attempts
to characterize this statement, Mason took the position that a national
government should have the power to disarm the people, so long as
that effort does not inhibit the ability of the people to effectively
form up as the militia. He referred elsewhere in his statement to
the unarmed populace that is not part of the militia39, which shows
that he understood the general population will be unarmed, while
the militia will be armed.
Thus, the actual texts that Attorney General Ashcroft cites fail
to support his claim that the Founding Fathers had an "all but unanimous"
view mirroring his own. In addition, there are other texts that
further undermine his claim. For example, in contrast with documents
cited by Ashcroft, Hamilton addressed private possession of arms
in a report on how duties should be calculated for firearms:
There appears
to be an improvidence, in leaving these essential instruments
of national defence to the casual speculations of individual adventure;
a resource which can less be relied upon, in this case than in
most others; the articles in question not being objects of ordinary
and indispensable private consumption or use.40
Such language
from Hamilton, downplaying the importance of privately held arms,
fails to appear in Attorney General Ashcroft's letter. Instead,
the Attorney General quotes language regarding armed militias out
of context while declining to acknowledge statements by the Founding
Fathers that would refute his views.
-
Attorney
General Ashcroft: "In early decisions, the United States
Supreme Court routinely indicated that the right protected by the
Second Amendment applied to individuals."
- Ashcroft
Deconstructed: Not one of the cases cited by the Attorney General
establishes that the Second Amendment protects an individual right
of the kind he advocates—i.e., the possession of guns absent
any connection to a state militia.
The first case cited by Attorney General Ashcroft, Logan v. United
States41, defines the scope of a federal prisoner's constitutional
right to be protected from physical violence while in the custody
of the United States Marshal. In fact, the page Attorney General Ashcroft
cites is not actually a page from the Court's opinion. It is a page
from the lengthy summary that appears before the beginning of the
Court's opinion in Logan, and it contains no discussion of
the Second Amendment. It is quite possible that the Attorney General
intended to cite to text appearing 10 pages later, where the Court
referred to a discussion of the first two amendments in an earlier
case:
1st. It was
held that the First Amendment of the Constitution, by which it
was ordained that Congress should make no law abridging the right
of the people peaceably to assemble and to petition the government
for a redress of grievances, did not grant to the people the right
peaceably to assemble for lawful purposes, but recognized that
right as already existing, and did not guarantee its continuance
except as against acts of Congress; and therefore the general
right was not a right secured by the Constitution of the United
States. But the court added: "The right of the people peaceably
to assemble for the purposes of petitioning Congress for a redress
of grievances, or for anything else connected with the powers
or the duties of the national government, is an attribute of the
national citizenship, and, as such, under the protection of, and
guaranteed by, the United States. The very idea of a government,
republican in form, implies a right on the part of its citizens
to meet peaceably for consultation in respect to public affairs
and to petition for a redress of grievances. If it had been alleged
in these counts that the object of the defendants was to prevent
a meeting for such a purpose, the case would have been within
the statute, and within the scope of the sovereignty of the United
States."
2d. It was held that the Second Amendment of the Constitution,
declaring that "the right of the people to keep and bear arms
shall not be infringed," was equally limited in its scope.42
The extent of
this case's treatment of the Second Amendment is limited to a restatement
of the latter portion of that amendment's text, as part of a series
of examples of cases interpreting various provisions in the Bill
of Rights that constrain government action in some fashion. At the
same time, however, the federal government does not have an affirmative
obligation to enforce these constitutional provisions unless additional
authority exists for it to do so. Logan notes that this limitation
applies to the Second Amendment and does not otherwise define the
scope of the amendment, other than to state that the right "was
equally limited in its scope."43
The next case Attorney General Ashcroft cites, Miller v. Texas44—not
to be confused with United States v. Miller—does address
the Second Amendment, but not in a way that supports Ashcroft's
view. In that case, the defendant unsuccessfully challenged a law
that prohibited persons from carrying weapons. The Court rejected
the Second Amendment challenge on the grounds that the provision
does not apply against the states through the Fourteenth Amendment:
Without, however,
expressing a decided opinion upon the invalidity of the writ as
it now stands, we think there is no Federal question properly
presented by the record in this case, and that the writ of error
must be dismissed upon that ground. The record exhibits nothing
of what took place in the court of original jurisdiction, and
begins with the assignment of errors in the Court of Criminal
Appeals. In this assignment no claim was made of any ruling of
the court below adverse to any constitutional right claimed by
the defendant, nor does any such appear in the opinion of the
court, which deals only with certain alleged errors relating to
the impanelling of the jury, the denial of a continuance, the
admission of certain testimony, and certain exceptions taken to
the charge of the court. In his motion for a rehearing, however,
defendant claimed that the law of the State of Texas forbidding
the carrying of weapons and authorizing the arrest without warrant
of any person violating such law, under which certain questions
arose upon the trial of the case, was in conflict with the Second
and Fourth Amendments to the Constitution of the United States,
one of which provides that the right of the people to keep and
bear arms shall not be infringed, and the other of which protects
the people against unreasonable searches and seizures. We have
examined the record in vain, however, to find where the defendant
was denied the benefit of any of these provisions....45
The Court only
discussed the language of the Second Amendment to show how it may
be constitutionally limited and to demonstrate how a prohibition
on firearm possession outside the home would be constitutional.
Attorney General Ashcroft also relies on Robertson v. Baldwin46,
a decision which reaffirms Miller v. Texas. In Robertson,
several sailors, having been convicted of a crime, were sent back
to their ship and forced to work against their will. The sailors
claimed their rights under the Fifth and Thirteenth Amendments were
infringed. The opinion refers to the Second Amendment to make the
point that there are limitations on the scope of the rights secured
by the Bill of Rights:
The law is
perfectly well settled that the first ten amendments to the Constitution,
commonly known as the Bill of Rights, were not intended to lay
down any novel principles of government, but simply embody certain
guarantees and immunities which we had inherited from our English
ancestors, and which had from time immemorial been subject to
certain well-recognized exceptions arising from the necessity
of the case. In incorporating these principles into the fundamental
law there was no intention of disregarding the exceptions, which
continued to be recognized as if they had been formally expressed.
Thus...the right of the people to keep and bear arms (art.
2) is not infringed by laws prohibiting the carrying of concealed
weapons.47
As in Logan,
the Court discusses the Second Amendment without specifying what
the right actually is, beyond a recitation of a portion of the amendment's
language. And as in Miller v. Texas, the Court points out
how the right secured by the Second Amendment constitutionally may
be limited. This case is useful primarily in the support that it
lends to gun control legislation, and does not elucidate
the nature of the actual right which the Second Amendment secures.
The final case cited by Attorney General Ashcroft is Maxwell
v. Dow48. As in Miller v. Texas, the Court refused to apply
the Second Amendment against the states through the Fourteenth Amendment:
In Presser
v. Illinois, 116 U.S. 252 [1886], it was held that the Second
Amendment to the Constitution, in regard to the right of the people
to bear arms, is a limitation only on the power of Congress and
the National Government, and not of the States. It was therein
said, however, that as all citizens capable of bearing arms constitute
the reserved military force of the National Government, the States
could not prohibit the people from keeping and bearing arms, so
as to deprive the United States of their rightful resource for
maintaining the public security, and disable the people from performing
their duty to the General Government.49
Maxwell,
which dealt primarily with the right to a trial by jury, interpreted
the right to bear arms with the end of maintaining an effective
military. Since citizens have a duty to protect their government,
the right to keep and bear arms should not be infringed so as to
limit their ability to fulfill that duty. As in the other cases,
Maxwell does not provide any support for Attorney General
Ashcroft's claim that the Supreme Court recognized a private right
to bear arms independent of service in a militia. The right which
this opinion discusses as constitutionally protected is the same
one which United States v. Miller and The Federalist Papers
indicate, and nothing more—namely, the limited right to keep and
bear arms in a militia in the service of the government.
-
Attorney
General Ashcroft: "Justice Story embraced the same view in
his influential Commentaries on the Constitution."
- Ashcroft
Deconstructed: Attorney General Ashcroft is correct to his detriment.
Justice Story did embrace a view identical to the Supreme Court
in the string of 19th century cases Ashcroft cites. However, as with
the prior cases, it is not the view that the Attorney General credits
to him. On the contrary, in his commentary on the Second Amendment,
Justice Story interprets the right that the amendment protects as
tied to militia service. Justice Story wrote:
§1890. The
importance of this article will scarcely be doubted by any persons,
who have duly reflected upon the subject. The militia is the natural
defense of a free country against sudden foreign invasions, domestic
insurrections, and domestic usurpations of power by rulers. It
is against sound policy for a free people to keep up large military
establishments and standing armies in time of peace, both from
the enormous expenses, with which they are attended, and the facile
means, which they afford ambitious and unprincipled rulers, to
subvert the government, or trample upon the rights of the people.
The right of the citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of a republic; since
it offers a strong moral check against the usurpation and arbitrary
power of rulers; and will generally, even if these are successful
in the first instance, enable the people to resist and triumph
over them. And yet, though this truth would seem so clear, and
the importance of a well regulated militia would
seem so undeniable, it cannot be disguised, that among the American
people there is a growing indifference to any system of militia
discipline, and a strong disposition from a sense of burthens,
to be rid of all regulations. How it is practicable to keep the
people duly armed without some organization, it is difficult
to see. There is certainly no small danger, that indifference
may lead to disgust, and disgust to contempt; and thus gradually
undermine all the protection intended by this clause of our national
bill of rights.50
Echoing the
discussions in the cases Attorney General Ashcroft cites, Story
explained that the right to keep and bear arms exists in the context
of militia service, and if the militia is to be effective, such
service must entail discipline and training. To arm the people independent
of any organization in the militia and without regard to maintaining
discipline would, wrote Story, actually undermine the very protection
that the Second Amendment affords. Story did not describe an individual
right to keep and bear arms that is independent of military organizations,
and to suggest otherwise reads far more into Story's commentary
than its language can possibly support.
-
Attorney
General Ashcroft: This view of the Second Amendment "was
adopted by United States Attorney General Homer Cummings...."
- Ashcroft
Deconstructed: Even compared to other misleading components of
the Ashcroft letter, this misrepresentation of the views of former
Attorney General Homer Cummings stands out. Ashcroft cites Cummings'
testimony before the House of Representatives, claiming that he expressed
a position in support of an expansive individual right to bear arms
in testimony before Congress. Nothing could be further from the truth.
Cummings never indicated his support for a broad view of the Second
Amendment in his testimony. He appeared before the House Ways and
Means Committee in 1934 in support of the National Firearms Act (NFA)—without
question the most restrictive piece of federal gun control legislation
ever passed. The NFA imposes severe restrictions on the possession
of fully automatic machine guns—the then-freely available weapon of
choice for gangsters such as Al Capone and John Dillinger. It imposed
a significant tax on the acquisition of machine guns and other "gangster
weapons" and established stringent sales and possession requirements,
including registration, photographing, fingerprinting, and local police
approval.51 Not only that, Cummings testified in support of an earlier,
more expansive version of the NFA—proposed by the Justice Department—that
also swept handguns under its requirements. Recognizing the bill's
severity, Cummings told the Committee: "Frankness compels me to say
right at the outset that it is a drastic bill."52 The NRA, over the
objections of the Justice Department, succeeded in stripping handguns
from the final version of the bill.53
When Attorney General Cummings testified in support of the NFA, he
did answer questions about the constitutionality of the legislation.
However, they were not the questions or answers that Attorney General
Ashcroft apparently believes they were. With one exception, the constitutional
questions that arose during the hearing did not concern the Second
Amendment at all. Rather, the constitutional issue that Cummings and
members of the Committee principally addressed was whether the legislation
fell within Congress' power to regulate interstate commerce. Cummings'
comments about gun ownership addressed the constitutional effect of
a law that restricted the acquisition of firearms across state lines
and one that also prohibited the possession of a firearm by someone
who happened to cross state lines. In the latter case, such restrictions
would, in Cummings' view, raise questions about the law's constitutionality
under the commerce clause. Early in the hearing Cummings stated:
For instance,
this bill does not touch in any way the owner, or possessor, or
dealer in the ordinary shotgun or rifle. There would manifestly
be a good deal of objection to any attempt to deal with weapons
of that kind. The sportsman who desires to go out and shoot ducks,
or the marksman who desires to go out and practice, perhaps wishing
to pass from one State to another, would not like to be embarrassed,
or troubled, or delayed by too much detail. While there are arguments
for including weapons of that kind, we do not advance that suggestion.54
This excerpt
from Cummings' opening statement does not support Attorney General
Ashcroft's contention that he was proffering a view of the Second
Amendment. Rather, Cummings was addressing Congress' power to regulate
commerce in firearms. While he made no mention whatsoever of the
Second Amendment in his opening statement, Cummings did identify
expressly the sources of constitutional authority for the bill:
Now we proceed
in this bill generally under two powers—one, the taxing power,
and the other, the power to regulate interstate commerce.55
During a subsequent
exchange, Cummings again addressed the interstate commerce question:
Mr. McClintic:
What in your opinion would be the constitutionality of a provision
added to this bill which would require registration, on the part
of those who now own the type or class of weapons that are included
in this bill?
Attorney General
Cummings: We were afraid of that sir.
Mr. McClintic:
Afraid it would conflict with state laws?
Attorney General
Cummings: I am afraid it would be unconstitutional.56
Attorney General
Ashcroft misreads this statement too, apparently thinking that Cummings
was indicating that registration would be unconstitutional under
the Second Amendment. Wrong again. Cummings was still discussing
the commerce clause issue. He stated that a registration requirement
for persons who currently possessed the weapons included in the
bill might be unconstitutional, observing that possession alone
might not satisfy the requirement that the weapon traveled in interstate
commerce.
And finally, in regard to the last point Ashcroft cites in Cummings'
testimony, Cummings completely sidestepped the issue of Second Amendment
interpretation.
Mr. Lewis:
Lawyer though I am, I have never quite understood how the laws
of the various States have been reconciled with the provision
in our Constitution denying the privilege to the legislature to
take away the right to carry arms. Concealed-weapon laws, of course,
are familiar in the various States; there is a legal theory upon
which we prohibit the carrying of weapons—the smaller weapons.
Attorney General
Cummings: Of course we deal purely with concealable weapons. Machine
guns, however, are not of that class. Do you have any doubt as
to the power of the Government to deal with machine guns as they
are transported in interstate commerce?
Mr. Lewis:
I hope the courts will find no doubt on a subject like this, General;
but I was curious to know how we escaped that provision of the
Constitution.
Attorney General
Cummings: Oh, we do not attempt to escape it. We are dealing with
another power, namely, the power of taxation, and of regulation
under the interstate commerce clause. You see, if we made a statute
absolutely forbidding any human being to have a machine gun, you
might say there is some constitutional question involved. But
when you say "We will tax the machine gun" and when you say that
"the absence of a license showing payment of the tax has been
made indicates that a crime has been perpetrated," you are easily
within the law.
Mr. Lewis:
In other words, it does not amount to prohibition, but allows
of regulation. Attorney General Cummings: That is the idea. We
have studied it very carefully.57
Here, Cummings
responded to a question about the Second Amendment. However, he
went only so far as to speculate that one "might say" that an absolute
prohibition on the possession of a machine gun by anyone could result
in a constitutional question being raised.58 To read this statement
as an affirmation by Cummings that there is an individual right
to bear arms of the type that Attorney General Ashcroft posits,
or that Cummings himself held such a view, grossly distorts Cummings'
words. This point is further supported by the discussion immediately
preceding the statement on which Attorney General Ashcroft appears
to rely. The Congressman who asked Cummings about the Second Amendment
did not even appear to believe that it protects an expansive right
when he asked Cummings to comment on the strict controls that existed
on machine guns in other western nations:
Mr. Lewis:
What I have in mind mostly, General, is this: The theory of individual
rights that is involved. There is a disposition among certain
persons to overstate their rights. There is a provision
in the Constitution, for example, about the right to carry firearms,
and it would be helpful to me in reaching a judgment in supporting
this bill to find just what restrictions a law-abiding citizen
of Great Britain and those other countries is willing to accept
in the way of his duty to society.
Attorney General
Cummings: I will be very glad to supply all the information I
can on that subject.59
If Cummings
held the view of the Second Amendment that Attorney General Ashcroft
ascribes to him, then Lewis' question provided the former Attorney
General with the opportunity to express his disagreement with the
notion that people "overstate their rights." Cummings did not do
that; instead, he offered to "supply additional information" to
Lewis rather than take a position on the Second Amendment at the
hearing.
Not only does Attorney General Ashcroft completely misread and distort
what Cummings said, Ashcroft wrongly suggests that his own view
reflects longstanding Justice Department policy. On the contrary,
Justice Department policy has consistently followed the same interpretation
of the Second Amendment that the Supreme Court laid down in United
States v. Miller in 1939. The most recent reaffirmation of this
long-held view was made on August 22, 2000, in a letter by then-Solicitor
General Seth Waxman. Waxman wrote that "rather than holding that
the Second Amendment protects individual firearms rights...courts
have uniformly held that it precludes only federal attempts to disarm,
abolish, or disable the ability to call up the organized state militia."60
To support this assertion, Mr. Waxman cited a range of cases, including
United States v. Miller, as well as a statement made by an
official in the Office of Legal Counsel in the Department of Justice
during the administration of President Richard Nixon:
The language
of the Second Amendment, when it was first presented to the Congress,
makes it quite clear that it was the right of the States to maintain
a militia that was being preserved, not the rights of an individual
to own a gun…[and] [there is no indication that Congress altered
its purpose to protect state militias, not individual gun ownership
[upon consideration of the Amendment]....Courts…have viewed the
Second Amendment as limited to the militia and have held that
it does not create a personal right to own or use a gun....In
light of the constitutional history, it must be considered as
settled that there is no personal constitutional right, under
the Second Amendment, to own or to use a gun.61
One need not
rely solely on Waxman's assertion regarding the Second Amendment
positions of previous Administrations. The Justice Department's
own briefs from cases filed in the U.S. Supreme Court during both
the Reagan and George Herbert Walker Bush Administrations confirm
that the Department's position—until now—has been consistent. In
the Reagan administration, Solicitor General Charles Fried laid
out the Department of Justice's position on the Second Amendment
stating:
Amicus CFREE's
suggestion (Br. 32-50) that the right to acquire firearms must
be considered fundamental for purposes of equal protection analysis
is entirely without merit. In the context of a Fifth Amendment
challenge to Title VII of the Gun Control Act of 1968,18 U.S.C.
App. 1201 et seq., the Court has flatly held that "[t]hese
legislative restrictions on the use of firearms * * * [do not]
trench upon any constitutionally protected liberties." Lewis
v. United States, 445 U.S. 55, 65 n.8 (1980). See id. at 65-66
n.8 (characterizing United States v. Miller, 307 U.S. 174,
178 (1939) as holding that "the Second Amendment guarantees no
right to keep and bear a firearm that does not have 'some reasonable
relationship to the preservation or efficiency of a well regulated
militia'").62
Furthermore,
in the administration of former President Bush, Solicitor General
Kenneth Starr echoed the understanding of his predecessor when he
stated:
In United
States v. Miller, 307 U.S. 174 (1939), the only decision by
this Court construing the Second Amendment in this century, the
Court rejected a challenge to provisions of the National Firearms
Act prohibiting the interstate transportation of an unregistered
firearm. The Court found no evidence that the firearm (a sawed-off
shotgun) "has some reasonable relationship to the preservation
or efficiency of a well regulated militia," and held that the
possession of that firearm did not fall within the rights guaranteed
by the Second Amendment. Id. at 178. Since Miller,
the lower federal courts have concluded that the mere allegation
that a firearm might be of value to a militia is insufficient
to establish a right to possess that firearm under the Second
Amendment. See, e.g., Cases v. United States, 131 F.2d
916, 922-923 (1st Cir. 1942), cert. denied, 319 U.S. 770
(1943); Cody v. United States, 460 F.2d, 34, 36-37 (8th
Cir.), cert. denied, 409 U.S. 1010 (1972); United States
v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States
v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426
U.S. 948 (1976).63
These briefs,
like the Waxman letter, dispel any doubt that the view that the
Second Amendment only protects the right to keep and bear arms in
relation to militia service has been the Department of Justice's
official interpretation for more than 65 years.
-
Attorney
General Ashcroft: "As recently as 1986, the United States
Congress and President Ronald Reagan explicitly adopted this view
in the Firearms Owners' Protection Act. See Pub. L. No. 99-308,
§ 1(b) (1986)."
-
Ashcroft
Deconstructed: Although the 1986 Firearms Owners' Protection
Act, which was a wish list for the National Rifle Association, does
include Congressional findings to the effect that the right guaranteed
by the Second Amendment requires a relaxation of gun control legislation,
those findings are simply wishful thinking and bind no one—not the
courts, not the executive branch, nor any future Congress. These
findings conflict with United States v. Miller, as well as
other cases cited by Attorney General Ashcroft, such as Miller
v. Texas, Robertson v. Baldwin, and Maxwell v. Dow,
all of which endorse varying degrees of gun control. When Congressional
findings regarding constitutional interpretation conflict with Supreme
Court opinions, it is the Supreme Court, not Congress, that possesses
the ultimate authority to decide what the Constitution actually
means.64
-
Attorney
General Ashcroft: "Significantly, the individual rights view
is embraced by the preponderance of legal scholarship on the subject...."
- Ashcroft
Deconstructed: Attorney General Ashcroft's claim is misleading
on numerous levels. First, contrary to the statement, there is a wide
body of scholarship supporting the Supreme Court's interpretation
of the Second Amendment. This fact was duly recognized by the Justice
Department in its brief in the Emerson appeal:
The case law
and history ignored by Emerson are more than adequately set forth
in the Government's opening brief and the amicus briefs of the
Center to Prevent Handgun Violence et al. and the Ad Hoc
Group of Law Professors and Historians, as well as by countless
legal and historical researchers. See, e.g., Michael Bellesiles,
Suicide Pact: New Readings of the Second Amendment, 16
Const. Commentary 247 (1999); Carl T. Bogus, The Hidden History
of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998);
Saul Cornell, Commonplace or Anachronism, 16 Const. Commentary
221 (1999); Dennis Henigan, Arms, Anarchy and the Second Amendment,
26 Val. U. L. Rev. 107 (1991); Don Higginbotham, The Second
Amendment in Historical Context, 16 Const. Commentary 263
(1999); Garry Wills, A Necessary Evil: A History of American
Distrust of Government (1999).65
Second, because
legal scholarship is generally more interesting, controversial,
and original when it is contrary to accepted legal doctrine or longstanding
court decisions , many constitutional law scholars and historians
have focused their energies elsewhere, viewing Second Amendment
jurisprudence as well-settled law. As the friend-of-the-court brief
filed in Emerson by the Ad Hoc Group of Law Professors and
Historians states:
The individual
rights theorists labeled their account of the Second Amendment
the "Standard Model," Slip Op. at 5, which implies that
it is espoused by the majority of constitutional law scholars.
Amici deny that this is the case. Perhaps because the Miller
view of the Second Amendment has been settled law for so long,
few constitutional law scholars have published analyses of the
Amendment.66
The 52 law and
history professors who signed onto this brief67 plainly do not think
that the Second Amendment protects an individual right. For them,
the Supreme Court's interpretation of the Second Amendment is both
historically and legally sound.
Finally, as political scientist Robert Spitzer points out in a 2000
article discussing Second Amendment scholarship, of the 164 law
review articles on the Second Amendment written from 1912 to 1999,
88 described a view roughly equivalent to the one Attorney General
Ashcroft endorses in his letter.68 The other 76 articles described
a view closer to the position articulated by the Supreme Court in
United States v. Miller.69 Therefore, the material representing
the scholarly debate over the Second Amendment presents an evenly
divided field, with neither side able to lay claim to a "preponderance
of legal scholarship." Even more interesting is the fact that 58
of these 88 law reviews backing Attorney General Ashcroft's interpretation
of the Second Amendment were published between 1990 and 1999.70 Thus,
the publication of law review articles supporting the Supreme Court's
interpretation of the Second Amendment outpaced the publication
of articles supporting Attorney General Ashcroft's view, until this
latter group made a surge in publication, largely in the last decade.
Professor Carl T. Bogus suggests this explosion of publication on
the Second Amendment supporting the individual rights reading was
due in part to financial sponsorship from the National Rifle Association.71
-
Attorney
General Ashcroft: "[T]he Constitution protects the private
ownership of firearms for lawful purposes."
-
Ashcroft
Deconstructed: This conclusion rests precariously on the house
of cards that Attorney General Ashcroft has built. As a whole, the
substantive legal and historical references that he presents in
his letter to the National Rifle Association actually do articulate
a coherent approach to the Second Amendment but, unfortunately for
Attorney General Ashcroft, it is not the approach that he describes.
The cases of the Supreme Court—informed by historical documents
from the time of the framing of the Constitution and longstanding
Justice Department policy—demonstrate a broad consensus that the
Second Amendment guarantees a right to keep and bear arms only in
relation to militia service in protection of the states. Attorney
General Ashcroft's assertion "that the Constitution protects the
private ownership of firearms for lawful purposes" is a bald expression
of his policy preferences, not a conclusion reached by deliberate
and careful consideration of any of the source materials identified
in his letter. The governing Supreme Court case, United States
v. Miller, correctly addresses the scope of the Second Amendment
and expressly disavows such an expansive reading of the amendment.
-
Attorney
General Ashcroft: "Of course, the individual rights view
of the Second Amendment does not prohibit Congress from enacting
laws restricting firearms ownership for compelling state interests...."
-
Ashcroft
Deconstructed: In a footnote to the statement that the Second
Amendment protects the private ownership of firearms for lawful
purposes, Attorney General Ashcroft seeks to reassure the reader
that his view of the Second Amendment would not foreclose Congress
from enacting laws to regulate firearms. Yet, in what is arguably
the most radical statement in the entire letter, Ashcroft then writes
that Congress can restrict firearms ownership "for compelling state
interests." The "compelling state interests" test is the strictest,
most probing analysis of government action under constitutional
law, and its application has been limited to a few cases—when government
has made a classification based on race, religion, nationality,
or citizenship status, or when a government action impacts on the
rights of free speech and assembly. Even classifications based on
gender do not have to satisfy the "compelling state interests" test.
Attorney General Ashcroft's statement would mean that a law restricting
firearms ownership would be scrutinized more closely than one that
disadvantages women, burdens a woman's reproductive right, restricts
religious expression, or gives the police the right to conduct warrantless
searches.
As a respected constitutional law scholar has noted, when a court
strictly scrutinizes governmental actions or regulations, the review
is "‘strict' in theory and fatal in fact."72 In other words, there
is virtually no circumstance in which Congress can enunciate a "compelling
state interest" that is sufficient to preserve the constitutionality
of a law that is strictly scrutinized. The "compelling state interests"
test would require the same type of showing by the government to
justify a restriction on firearms that is required to justify a
restriction on speech. There is absolutely no basis in constitutional
law—or even the Ashcroft letter—for importing strict scrutiny to
the Second Amendment.
-
Attorney
General Ashcroft: "As Samuel Adams explained at the Massachusetts
ratifying convention, the proposed Constitution should ‘never [be]
construed...to prevent the people of the United States who are peaceable
citizens, from keeping their own arms.'"
- Ashcroft
Deconstructed: Dispelling any doubt about the real intentions
behind his footnote—to advance an interpretation of the Second Amendment
that would lead to the invalidation of existing laws that supposedly
encroach upon the "fundamental" gun rights of "law-abiding" Americans—Ashcroft
follows his statement about the "compelling state interests" test
with this quote that he ascribes to Samuel Adams.
Though Samuel Adams might have been the source of this statement,
this language does not appear on page 675—the cited page—or, to the
authors' knowledge, on any other page of the Bernard Schwartz compendium
that Attorney General Ashcroft cites.73 Page 675 does refer to amendments
to the Federal Constitution that Adams proposed at the Massachusetts
ratification convention, of which one was reportedly a right to keep
and bear arms, but these proposed amendments, which were not approved
by the convention, are not discussed in any detail in the Schwartz
book. To actually find the language that Attorney General Ashcroft
attributes to Adams, one would have to look at the record of proceedings
for the constitutional convention in Massachusetts.
However, there is nothing recorded in those proceedings to suggest
that the statement actually should be attributed to Samuel Adams.
The quoted language appears in the entry of February 6, 1788, for
the official journal of the convention and is presented in the passive
voice without any mention of, or attribution to, Adams:
A motion was
made and seconded, that the report of the Committee made on Monday
last, be amended, so far as to add the following to the first
article therein mentioned, viz.: "And that the said Constitution
be never construed to authorize Congress to infringe the just
liberty of the press, or the rights of conscience; or to prevent
the people of the United States, who are peaceable citizens, from
keeping their own arms; or to raise standing armies, unless when
necessary for the defense of the United States, or of some one
or more of them; or to prevent the people from petitioning, in
a peaceable and orderly manner, the federal legislature, for a
redress of grievances; or to subject the people to unreasonable
searches and seizures of their persons, papers, or possessions."
And the question being put, was determined in the negative.74
There is no
explicit indication as to who moved to have this article included,
although it may well have been Adams. However, the journal does
not indicate whether any particular amendments or statements in
support of the amendments were made by any one convention participant.
Even if the author was Adams, the convention participants still
rejected the article. A discussion of this language does appear
in the trial court's Emerson decision, citing to the work
of historian Joyce Lee Malcolm, and she attributes this material
to Samuel Adams.75 However, Malcolm references only the page of the
journal quoted above. If Attorney General Ashcroft wants to suggest
that Samuel Adams believed in an individual right to bear arms free
of government restrictions, then, once again, he is going to have
to look deeper than a series of misquotes.
Go to Conclusion
Back to Table
of Contents
- Emerson,
46 F. Supp. 2d at 614.
- Brief of the
United States in United States v. Emerson, No. 99-10331 (5th
Cir.), at 16-28 (quoting United States v. Friel, 1 F.3d 1231
(1st Cir. 1993) (unpublished); United States v. Toner, 728
F.2d 115 (2nd Cir. 1984); United States v. Rybar, 103 F.3d
273 (3rd Cir. 1996), cert. denied, 522 U.S. 807 (1997); Love
v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516
U.S. 813 (1995); United States v. Johnson, 441 F.2d 1134 (5th
Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir.),
cert. denied, 426 U.S. 948 (1976); Quilici v. Village of
Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied,
464 U.S. 863 (1983); United States v. Hale, 978 F.2d 1016 (8th
Cir. 1992), cert. denied, 507 U.S. 997 (1993); Hickman v.
Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912
(1996); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977),
cert. denied, 435 U.S. 926 (1978); United States v. Wright,
117 F.3d 1265 (11th Cir. 1997), on rehearing, aff'd in part and
vacated in part on other grounds, 133 F.3d 1412, cert. denied,
525 U.S. 894 (1998)); and Reply Brief of the United States in United
States v. Emerson, No. 99-10331 (5th Cir.), at 6 (hereafter Emerson
Reply Brief) (quoting Fraternal Order of Police v. United States,
173 F.3d 898 (D.C. Cir.), cert. denied, 528 U.S. 928 (1999)).
- Emerson
Reply Brief at 24-25 (5th Cir.) (footnotes omitted).
- 178 F.3d 1291
(5th Cir.) (unpublished), cert. denied, 528 U.S. 928 (1999),
See Emerson Reply Brief at 1-3.
- See United
States v. Spruill, 61 F. Supp. 2d 587, 591 (W.D. Tex. 1999) (refusing
to strike down the same federal law that was at issue in Emerson:
"[T]he Court chooses to follow the majority path and here holds that
the Second Amendment does not prohibit the federal government from
imposing some restrictions on private gun ownership. The statute in
question in this case is aimed at preventing the family violence that
seems epidemic in this country."); Olympic Arms v. Magaw, 91
F. Supp. 2d 1061, 1071 (E.D. Mich. 2000) ("Nor, under the currently
controlling authority in this circuit, is there an individual right
to bear arms." (citations omitted)); United States v. Henson,
55 F. Supp. 2d 528, 529 (S.D. W.Va. 1999) (refusing to strike down
the same law that was at issue in Emerson: "Defendant's reliance
on Emerson is misplaced. Our Court of Appeals has held consistently
that the Second Amendment confers a collective, rather than an individual
right to keep and bear arms." (citations omitted)); and Rupf v.
Yan, 85 Cal. App. 4th 411, 421 (Cal. App. 1st Dist. 2000) ("The
Ninth Circuit is among the federal courts considering the issue that
have held ‘that the Second Amendment is a right held by the states,
and does not protect the possession of a weapon by a private citizen.'"
(citations omitted)).
- Chief Justice
John Marshall laid down the principle of judicial review in Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) (emphasis added):
So if a law
be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must
either decide that case conformably to the law, disregarding the
constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules
governs the case. This is of the very essence of judicial duty.
- 307 U.S. 174
(1939).
- Id. at
178 (emphasis added).
- Id.
- 505 U.S. 833
(1992).
- Id. at
854 (citing Lewis Powell, "Stare Decisis and Judicial Restraint,"
1991 Journal of Supreme Court History 13, 16).
- E.g., Garry Wills,
A Necessary Evil: A History of American Distrust of Government
252 (1999); Carl T. Bogus, The Hidden History of the Second Amendment,
31 U.C. Davis L. Rev. 309 (1998); Saul Cornell, Commonplace or
Anachronism: The Standard Model, the Second Amendment, and
the Problem of History in Contemporary Constitutional Theory,
16 Const. Commentary 221 (1999); Jack N. Rakove, The Second Amendment:
The Highest Stage of Originalism, 76 Chi.-Kent. L. Rev. 103 (2000)
(hereafter Rakove); and David Yassky, The Second Amendment: Structure,
History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000).
- Symposium
on the Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 1 (Carl
T. Bogus ed., 2000) (hereafter Symposium), including, Carl T. Bogus,
The History and Politics of Second Amendment Scholarship: A Primer,
Symposium at 3; Lois G. Schwoerer, To Hold and Bear Arms: The English
Perspective, Symposium at 27; Michael A. Bellesiles, The Second
Amendment in Action, Symposium at 61; Rakove, Symposium at 103;
Daniel A. Farber, Disarmed by Time: The Second Amendment and the
Failure of Originalism, Symposium at 167; Paul Finkelman, "A
Well Regulated Militia"—The Second Amendment in Historical Perspective,
Symposium at 195; Steven J. Heyman, Natural Rights and the Second
Amendment, Symposium at 237; Michael C. Dorf, What Does the
Second Amendment Mean Today?, Symposium at 291, Robert J. Spitzer,
Lost and Found: Researching the Second Amendment, Symposium at
349; H. Richard Uviller & William G. Merkel, The Second Amendment
in Context: The Case of the Vanishing Predicate, Symposium at
403.
- 494 U.S. 259
(1990).
- Id. at 265 (citing
United States ex rel. Turner v. Williams, 194 U.S. 279, 292
(1904)).
- James Madison,
"Federalist 46," in The Federalist Papers 237, 241-242
(Garry Wills ed., 1982).
- Id. at
242.
- Alexander Hamilton,
"Federalist 29," in The Federalist Papers 138, 138
(Garry Wills ed., 1982) (emphasis in original).
- The Portable
Thomas Jefferson 249 (Merrill D. Peterson ed., 1975).
- Attorney General
Ashcroft's letter cites Jefferson's statement as having been made
even earlier, in 1764. The VPC was unable to confirm this date, but
if accurate, it then puts 24 years between Jefferson's statement and
the ratification of the Bill of Rights.
- Ashcroft letter
at 1.
- 3 The Debates
in the Several State Conventions on the Adoption of the Federal Constitution
425-426 (3d ed., Jonathan Elliott ed., 1937).
- Id. at
380 (brackets in original) (emphasis added).
- Id.
- 10 The Papers
of Alexander Hamilton 317 (Harold C. Syrett ed., 1966) (quoting
Alexander Hamilton's Final Version of the Report on the Subject
of Manufactures).
- 144 U.S. 263
(1892).
- Id. at
286-287 (citations omitted).
- Id. at
287.
- 153 U.S. 535
(1894). In yet another example of the inaccuracy of the citations
in Attorney General Ashcroft's letter, the date for this case is identified
incorrectly as 1893.
- Id. at
537-538 (emphasis added).
- 165 U.S. 275
(1897).
- Id. at
281-282 (emphasis added).
- 176 U.S. 581
(1900).
- Id. at
597.
- Joseph Story,
Commentaries on the Constitution § 1890 (1833) (emphasis added)
(footnotes omitted)
- The National
Firearms Act of 1934: Hearings on H.R. 9066 Before the House Committee
on Ways and Means, 73rd Cong. 24 (1934) (hereafter National Firearms
Act Hearing).
- Id. at
5.
- Josh Sugarmann,
National Rifle Association: Money, Firepower & Fear 31-32 (1992).
- National Firearms
Act Hearing at 5-6 (emphasis added).
- Id. at
6.
- Id. at
13.
- Id. at
19.
- In 1986, Congress
enacted a ban on the transfer and possession of machine guns manufactured
subsequent to May 19, 1986. This restriction has been upheld by numerous
circuit courts of appeal. See United States v. Franklyn, 157
F.3d 90, 96, (2d Cir. 1998); cert. denied, 525 U.S. 1112 (1999);
United States v. Wright, 117 F.3d 1265, 1270 (11th Cir. 1997),
on rehearing, aff'd in part and vacated in part on other grounds,
133 F.3d 1412, cert. denied, 525 U.S. 894 (1998); 133 F.3d
1412 (1998); United States v. Knutson, 113 F.3d 27, 30 (5th
Cir. 1997); United States v. Rybar, 103 F.3d 273, 283 (3d Cir.
1996), cert. denied, 522 U.S. 807 (1997); United States
v. Kenney, 91 F.3d 884, 890 (7th Cir. 1996); United States
v. Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995). The Firearms Owners'
Protection Act has been upheld as a Lopez Category 1 regulation
of the channels of interstate commerce by the Sixth and Ninth Circuits.
See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir.
1996); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.),
cert. denied, 519 U.S. 819 (1996).
- National Firearms
Act Hearing at 18-19 (emphasis added).
- See Appendix
B for the full text of the Waxman letter.
- Letter by former
Solicitor General Seth P. Waxman, dated August 22, 2000, quoting Mary
C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel,
in a letter to George H. W. Bush, Chairman, Republican National Committee
(July 19, 1973) (citing, inter alia, Presser v. Illinois, 116
U.S. 252 (1886), and United States v. Miller, 307 U.S. 174
(1939)).
- Brief of the
United States in Department of Treasury v. Galioto, No. 84-1904,
at 3 n.4 (1986).
- Brief of the
United States in Farmer v. Higgins, No. 90-600, at 6 (1990).
- The only time
that such a legislative attempt to take on the interpretive function
of the judiciary is legitimate is when the legislative interpretation
of a statute can be understood as an amendment of that statute. Sutherland
Statutory Construction § 45.03 (6th ed., 2000). Applying that
same logic to a constitutional provision, since the procedure for
amending the Constitution is far more rigorous than the process by
which the Firearms Owners' Protection Act was passed, there is no
way to understand this latter act as an amendment to the Constitution.
Thus, the commentary that it makes on the Constitution is completely
non-binding.
- Emerson
Reply Brief at 25 (emphasis added).
- Brief for an
Ad Hoc Group of Law Professors and Historians as Amici Curiae
in Support of Appellant in United States v. Emerson, No. 99-10331,
at 2.
- The historians
and legal scholars were Bruce Ackerman, Joyce Appleby, Jack M. Balkin,
Michael Bellesiles, Adele Bernhard, Ruth Bloch, Carl T. Bogus, Frank
Bowman, John Brooke, Chandos Michael Brown, Darryl Brown, Edwin G.
Burrows, Andrew Cayton, Erwin Chermerinsky, Saul Cornell, Edward Countryman,
John DiPippa, Michael Dorf, Norman Dorsen, David Dow, Susan R. Estrich,
Heidi Li Feldman, Hendrik G. Hartog, Bruce Hay, Don Higginbotham,
Peter Charles Hoffer, Nancy Isenberg, Sheri L. Johnson, Stanley N.
Katz, Arthur LaFrance, Jan Lewis, Jill Lepore, Rory K. Little, Mari
J. Matsuda, Andrew J. McClurg, Frank Michelman, Dawn Nunziato, Michael
Perlin, Carl Prince, Norman L. Rosenberg, Malinda L. Seymore, Peter
Shane, Billy G. Smith, Peter J. Strauss, Richard Uviller, Spencer
Weber Waller, Eldon D. Wedlock, Jr., Leila Sadat Wexler, Welsh S.
White, Steve Winter, David Yassky, and Michael Zuckerman.
- Robert J. Spitzer,
Symposium at 384.
- Id.
- Id.
- Carl T. Bogus,
Symposium at 14.
- Gerald Gunther,
"Foreword: In Search of Evolving Doctrine on a Changing Court:
A Model for a Newer Equal Protection," 86 Harv. L. Rev.
1, 8 (1972).
- 2 Bernard Schwartz,
The Bill of Rights: A Documentary History 675 (1971).
- Debates and
Proceedings in the Convention of the Commonwealth of Massachusetts,
Held in the Year 1788, at 86-87 (Bradford Pierce and Charles Hale,
eds., 1856).
- Emerson,
46 F. Supp. 2d at 605-606 (quoting Joyce Lee Malcolm, To Keep and
Bear Arms: The Origins of an Anglo-American Right 158 (1994)).
All contents © 2001 Violence Policy Center
The Violence Policy Center is a national non-profit educational foundation
that conducts research on violence in America and works to develop violence-reduction
policies and proposals. The Center examines the role of firearms in America,
conducts research on firearms violence, and explores new ways to decrease
firearm-related death and injury. |