I don’t understand your point. “Decide” and “settle” are synonyms.
As I said before, if the courts refuse to review the policy it is therefore Constitutional.
Yes, but that’s an “if.” And it still wouldn’t be the JD determining legality, it would still be the courts - they just give tacit approval by not reviewing.
Unfortunately this is going to settle nothing, AD for reasons some posters have already stated. Mainly, that unless SCOTUS lays it down in black and white, the individual right will see-saw from administration to administration. Case in point, with Clinton and Reno, there was no individual right. Now with Bush, there is. If Kerry had won the recent election, we’d be back to Clinton/Reno definitions (or worse).
That’s simply not true. The judicial branch is charged with ruling on issues of constitutionality. C’mon, this is American Govt. 101 stuff. Your post says it all: the Supreme Court hasn’t addressed the subject, so it is most definitely NOT “put to bed”.
I still don’t see what the point of this thread is. The court may have not reviewed the policy, but that doesn’t mean it won’t some time in the future. You seem to be implying in the OP that the policy debate is over. It’s not.
But I do agree it’s a wild, wild long shot that the court would rule against the right of individuals to own guns. Not anytime in the near future, that is.
And that’s a semantic distinction. The end result is still the same.
I guess a good question would be, what practical difference do you expect this memo to make in how laws are passed or enforced. If the Justice Dept. changed it’s stance to: “only people actively in militias can have weapons”, how would that change things?
How did Clinton’s and Reno’s view change things, though? David Koresh’s stockpile of weapons would be just as illegal today under the Bush admin as it was under Clinton. Neither admin makes the laws, and both are bound to uphold them whether they agree or not.
The Supreme Court has made exactly one ruling even approaching the 2nd Amendment, and that was way back in 1939 (US v. Miller). They have avoided it like the plague ever since.
I don’t think that they’ll touch this with a ten foot pole, not after 60+ years of avoiding the issue. That said, they may finally take a case that will finally answer the question, but if they don’t then it would appear that the individual rights argument will prevail.
Has a court ever invalidated a gun control law on second amendment grounds? The article in the OP (which admitedly I just scanned) seemed to say that such a thing was fairly uncommon. If this is true, the I’d say that the courts have defacto ruled against an individuals rights to own at least some types of guns.
I’m not a Supreme Court scholar, but it’s always been my understanding that it’s not the case that SCOTUS has shown zero interest, but that both sides, and the NRA in particular, are scared s***less of the finality of a Supreme Court decision. So everyone is content to use any tactic at all to strengthen their position - any tactic EXCEPT taking a case to the Supreme Court.
In the case of a law, for example, that is ambigious on a point, the Justice Department decides, operationally, how to enforce it. Let’s say, it was about parking near fire hydrants. Is a foot near? Is ten feet near? Let’s say it’s not specified. The Justice Department decides, and the decision, for all practical purposes, is the law, unless it is contested. If it is contested, the Supreme Court is the final arbiter, and their word defines ‘near’ at this point, settling the topic.
A different real world example: Regulating interstate commerce. Can the Justice Department use that to stop marijuana use grown and sold and smoked inside a state? They’re trying to, in California. They are enforcing a law, in accordance with their policy, until such time as the Supreme Court settles matters by deciding the policy is constitutional or not.
No cites, but articles I’ve read in the past indicate that whenever the SCOTUS has touched the issue, they’ve held that the militia language was relevant. Of course any Justice who participated in a case that touched the Second Amendment is long dead; I leave it to Court followers to speculate on what the current bunch might say on the matter.
.
The Clinton administration actively pursued the “not an individual right” opinion, case in point the assault weapons ban. Those stockpiled weapons in Koresh’s compound, if they fit the nebulous description of an AW, would now not be illegal.
Not the same thing. The OP is, I think, talking about those who would claim that the 2nd amendment does not protect individuals from owning guns of any kind, it just allows them to own guns in as much as they are part of “a militia”.
Am I missing something here? Doesn’t the Attorney General enforce the law? And don’t the courts rule on the law? My understanding is that an attorney is an advocate of a particular position. He is not the arbiter. A judge is the arbiter. As an analogy, if I am accused of murder, the District Attorney decides whether to prosecute me. If he does prosecute, he advocates the position that I am guilty, while my defense attorney advocates the position that I am innocent. But neither decides whether murder is a crime.
The assult weapons ban was passed by congress. Clinton’s opinion one way or another did not make AW illegal, or Bush’s opinion make them legal later. That’s my point.
(I think Koresh was accused of having automatic weapons, not assult weapons, but whatever, it’s just an example).
Wouldn’t a modern, “well-regulated”, militia need all sorts of crazy, illegal weapons (Howitizers, automatic guns, maybe a tank or two, etc.) to be effective. I doubt a militia armed with circa 1790 muskets and cannon would be useful for much of anything.
But claiming that you’re not constitutionally protected is not the same as claiming you are banned. Maladorous’ point was that a gun-control law has yet to be struck down. So you can’t say that “individual right” has been upheld, since every law that has sought to curtail “individual right” has been allowed to stand. The fact that the status quo allows guns to be owned under certain circumstances doesn’t mean that an absolute right to own guns has been upheld. Individuals can own guns not because they are constitutionally protected, but because there don’t happen to be any laws banning all guns absolutely.
That’s not what I meant by ‘decide’. I said “deciding constitutionality”, not “deciding which cases to prosecute”. The AG decides which cases to prosecute, and I agree as a practical matter, it will affect how the laws are enforced, but only until a given issue is challenged in court. So I wouldn’t call that “settled” in any way, shape, or form.
What’s going on here? I thought I was agreeing with you.
Just to be clear about something-
The Justice Department is part of the Executive branch, is it not? It is not part of the Judicial branch of government. The AG is a cabinet position not a judicial one. The Executive branch does not get to make Constitutitional rulings. The AG can adopt a policy as to how to enforce existing law but it cannot make rulings on the constitutionality of those laws. So nothing has been decided in any meaningful or lasting sense. All that’s happening is that a presidential appointee is carrying oy the preferred policy of a particular White House not to go after private gun owners. Whoo dee doo.
You are correct. But congress would not have passed or Clinton signed into law the AW ban without the tacit approval of the AG and Clinton’s backing. The relevance of the OP, IMO, is that with the new JD’s memo, there will not be an active pursuit to curtail the individual right opinion, either through the courts or through congressional action.