http://www.nationalreview.com/kopel/kopel053001.shtml
Guns in Court
The 1939 Supreme Court case of United States v. Miller is the best thing that the gun-prohibition groups have left, legally speaking.
Astute media-watchers have been noticing that the Washington Post, despite its liberal reputation, has been
getting ever more objective and careful in its news reporting. Meanwhile, the New York Times, despite its reputation for objectivity and accuracy, has been getting ever sloppier, and trending further and further left in its reporting — as documented by Smartertimes.com An excellent illustration of the Post's rise and the Times' degeneration can be seen in their contrasting treatment of the recent letter from Attorney General John Ashcroft to the NRA announcing his belief that the Second Amendment guarantees an individual right to arms.
Both papers provided background to the Ashcroft letter by discussing United States v. Miller, the last Supreme Court case that analyzed the Second Amendment at length. The Washington Post described the case with perfect accuracy: "In the 1939 U.S. v. Miller decision, the U.S. Supreme Court ruled that there was no constitutional right to own a sawed-off shotgun because it had no 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'"
The Times, on the other hand, misrepresented the case, applying the spin which gun prohibition groups so often use about Miller: "Mr. Ashcroft's letter, sent last Thursday in response to an inquiry from the N.R.A., rejects another interpretation — applied by the Supreme Court in its last major ruling on the amendment, in 1939 — which holds that the Constitution guarantees only a collective right to guns through state and federal militias, not an individual's right."
Note that the Post quoted directly from the Miller case, whereas the Times did not--and indeed could not, because the Miller Court never says what the Times claims.
Miller nowhere explicitly says that the Second Amendment does or does not guarantee an individual right or a collective right.
I don't know if you read my post to Tim. The reason that the Sup. Ct. ruled as it did and the reason that Brady, the ACLU, and others agree that the second amendment did not intend to arm individuals but rather state militias, is because they understand the politics behind the creation of the second amendment.
Back then, there were two primary political opinions as to the form of gov't the country should take.....one where a considerable amount of power is centered in the national gov't but with some power reserved for the states. This concept was called federalism and its supporters were called Federalists. Of course, there were also anti-Federalists........they wanted more power distributed to the states. I think the Federalists were the majority but the anti-Federalists were a sizable minority..mostly, if I remember correctly, the plantation owners etc. from the South.
Last nite, when I was reading about the issues to answer you posts, I remembered talking about the second amendment in school. In order to satisfy the objections of the anti Federalists, the Federalists agreed that in addition to a national army, the states would have their own militia. The anti Federalists wanted a guarantee that at some future point, the militias would not be dismantled by the federal gov't.....so it was determined what better way to assure them but by creating a constitutional right which gave rise to the second amendement.
Back then, I don't think the authors of the Constitution realized that their wording may seem a little ambiguous to us nearly three hundred years hence.
You may not agree but the NRA's interpretation of the second amendment, as intended by the original authors, is wrong. Remember, our founding fathers were in "pursuit of a more perfect union"....I don't think that meant one where nearly 30,000 Americans die each year at the nozzle of a gun.
ted |
