From a memorandum to the Attorney General dated 24 August 2004:
When the guys responsible for enforcing the laws agree that the Amendment applies individually and not collectively, I think that pretty much puts the whole “militia” argument to bed. Obviously, some of you will disagree, so I put it in GD. Have at it. You know where I stand on this, and I pretty much know where you stand on it, but I wouldn’t mind seeing the “opposition”, as it were, reading the text and commenting on it.
Ignoring the gun issue and speaking in general I don’t think we should look to any specific administration for an interpetation of the constitution espicially not this particular one.
I personally don’t give a rat’s behind either way. Ban 'em, don’t ban 'em - whatever. I’m also not nearly qualified to parse a legal brief from the Justice Department.
But I think you’re utterly incorrect that it’s the guys who enforce the laws that should have the final say in what the Amendment means. When the Supreme Court decides that the Amendment applies individually and not collectively is when the argument is put to bed - not when some political organization puts out an argument that it does so.
Two questions:
Are you attributing the result of this study to the administration? If so, do you have any evidence that it is politically motivated?
Are you going to address the issues in the brief?
This has, as I recall, been the stance of the Justice Department through the entire Bush II administration. Personally, I agree with it. However, until the ghosts of the Founding Fathers appear before the Supreme Court, which then issues a ruling, this is pretty much still up for debate.
(My apologies if this doubleposts)
I agree with Neurotik. The administrations stance on a constitutional issue is only as good as 1) that administration is in power and/or 2) the SCOTUS weighs in.
Why would the views of one administration put the the militia argument “to bed”? Also, you’re statement that everyone knows your views is a bit self congratualtory, AD. Are you that important around here that everyone knows your views? I don’t know them.
Since when does the AG make decisions about Constitututional interpretation?
I do not have any specific evidence that this particular report is politically motivated but it is a strong possibility. It seems to me at least that Bush has made his position on the second amendment fairly clear and this memo happens to agree to a ‘t’ with his position. It certainly smacks of a political motivation but then again ultimately Bush is the boss of this lawyers. He isn’t interested in legal arguments against his position he wants legal arguments supporting them. Consistantly arguing against your bosses position is a quick way to get demoted, fired or passed over for promotion in any institution but it seems espicially acute in this administration. Some of the legal arguments that I have seen this administration make from ‘secret’ legal arguments in trials, the Gitmo cases to the ‘torture’ memos do not give me any confidence in the AG to objectively and without influence from above consider a legal argument.
No becuase I agree (without having looked at the specific legal arguments to back it up) with the conclusion. It takes some convulted logic to interpet ‘The right of the people to bear arms shall not be infringed’ to mean anything other than the right of people to bear arms shall not be infringed.
Iyt doesn’t take convoluted logic, it just requires that you read the entire Amendment.
1789, actually. You need to distinguish between the setting of standards under which the U.S. government, as a party, will take stances in legal actions, which is precisely the job of the Attorney General, and the making of judicial decisions regarding interpretation, which is of course the Courts’ job.
For example, you’ve seen a lot of right-wing bloggers saying that holding a different position than Mr. Bush regarding Iraq constitutes treason. By one viewpoint, the question of whether it is or is not is unresolved until a court rules on it. But by a different viewpoint, the Attorney General has every right to tell his prosecutors to disregard any such bloviated accusation unless backed by clear evidence of treason as defined in law.
And that’s what applies here – in cases which reference the Second Amendment, the policy of the U.S. Department of Law is that it guarantees an individual right. Federal prosecutors and counsel will act in accordance with that policy.
I object to the notion that it is politically motivated because of three things. First, it is a well-cited, compelling, and cogent argument. Second, the substance of the argument does not change no matter who the President is. And third, and I may be wrong on this, I don’t recall any memorandum, order, or declaration in favor of individual rights ever coming from a govenmental body (other than the Constitution, of course).
I’m just not understanding how anybody could call this politically motivated.
Perhaps I am being a bit egotistical. Sorry about that. Anyway, my views are that the 2nd Amendment protects the right of an individual to keep and bear arms. And now for the best part: even if, for some stupid reason, the Amendment is judged to apply only to the “militia”, since I am in the Guard I AM in the militia, so I win either way, not that I would find that to be a satisfactory outcome should it go down that way.
<hijack>
I just wanted to note that the Symantec internet filter at my workplace would not allow me to view the memo, to wit…
"This page will not be displayed because it contains prohibited words or it has exceeded its tolerance of questionable words. "
I’m sure this means something on a deeper level. Feel free to insert your own joke here.
<end hijack>
This memo gives us one more reason to repeal the Second Amendment.
How’s that?
Pretty much irrelevent, since it’ll never happen.
Well, I’d have to disagree, AD. The simple fact that few other bodies have issued such statements generally means there’s little reason to. If that’s true then issuing a statement without some compelling reason (a case before the SCOTUS, for example) makes my ‘scoring political points’ radar perk up.
I agree with treis, Neurotik, E-Sabbath, John Mace, and Diogenes the Cynic. The OP is disingenuous. It’s confusing two different branches of government. The “the guys responsible for enforcing the laws” are not charged with the task of deciding constitutionality.
Actually, they do decide it, on a daily and operational basis. They just don’t settle the issue. The Supremes settle it.
As a matter of fact, they are, unless the courts shoot them down. The Supreme Court has shown almost zero interest in addressing this subject, so should the rules be enforced in this manner and the courts refuse to review it the Justice Department does determine Constitutionality.
The justice department has some leeway interpreting laws, but I don’t think this extends to determining constitutionality. If congress passes a law tomorrow prohibiting anything more dangerous then a butter knife, the justice dept has to enforce it whether they think it’s constitutional or not. They can argue in front of the courts that they don’t think it’s constitutional, but then its the court that decides and whose opinions matter, not the JD.
Since there is already a large body of laws regulating the use/ownership of weapons that the justice dept. enforces and will continue to enforce, there really doesn’t seem to be much practical reason for this memo, which is why I think that people in this thread are suspicious that it is politically motivated.