2 Challenge Gun Cases, Citing Bush Policy

[Steve Schear]

At 07:36 PM 6/1/2002 -0400, Ed Stone wrote:
>At 07:36 PM 5/31/02, you wrote:
>>http://www.nytimes.com/2002/05/31/politics/31GUNS.html
>>
>>WASHINGTON, May 30 Two men charged with carrying pistols without a 
>>license in the District of Columbia have invoked the Bush 
>>administration's position on guns to seek the dismissal of their cases.
>>
>>Reversing decades of Justice Department policy, the Bush administration 
>>told the Supreme Court this month that it believes the Second Amendment 
>>protects an individual's right to possess firearms.
>>
>>Lawyers for the two men, Michael Freeman and Manuel Brown, say the 
>>position is inconsistent with a ruling in the United States Court of 
>>Appeals for the District of Columbia Circuit.
>>
>>Today, the Justice Department urged the continued prosecution of the men. 
>>The controlling precedent upholds the city's firearm statutes, "even 
>>though it contains reasoning that is inconsistent with the position of 
>>the United States," the department said in court papers
>
>Looks like it is the position of the Department of Justice of the United 
>States of America that the 2nd Amendment to the Constitution conveys 
>rights, as against potential Government powers to the contrary, for an 
>Individual not in the military to keep and bear arms, albeit subject to 
>reasonable regulation thereof.
>
>The Justice Department's urging of continued prosecution of the men looks 
>like DOJ views a blanket proscription of an individual's possessing or 
>bearing a firearm to be a reasonable regulation of firearms.
>
>Assuming that the current position of the DOJ is that it believes the 
>Second Amendment protects an individual's right to possess firearms, then 
>if a municipality can prevail in requiring that only police officers may 
>posses guns, and pass Constitutional muster, can that municipality prevail 
>in requiring that only police officers may enjoy free speech? Or petition 
>the Government for redress of grievances? Or refuse to testify against 
>themselves? Why not?
>
>Cases in which the United States Governmnent has found an individual's 
>rights found in the United States Constitution essentially voidable by a 
>city council are rare, I hope? Unusual? So pre-9/11

I think whether the 2nd is enforceable against states and municipalities 
will depend upon the SC deciding to apply the 14th Amendment.  The Supreme 
Court has long held that the 14th Amendment does not make all of the Bill 
of Rights applicable to the States. Only those rights the Court finds to be 
"fundamental" apply. To this day, several portions of the Bill of Rights, 
including the right to indictment by grand jury, to a jury trial in any 
common-law suit over $20, and to the rules of the common law in judicial 
review of jury fact-finding, have not been held to be fundamental and to 
this day are not applicable to the states.

Is the right to keep and bear arms a fundamental right? Obviously the NRA 
would argue that it is. But the Supreme Court would be well within 
precedent if it were to hold that given modern conditions, a right to keep 
and bear arms, like a right to a jury trial for a 20-dollar dispute, can no 
longer be said to be so implicit in the concept of ordered liberty as to be 
fundamental. If it so held, the 2nd Amendment would remain applicable to 
the Federal Government, but would not apply to the States, which would be 
free to use their militia regulatory powers to regulate guns as they see fit.

steve