From: [EMAIL PROTECTED]
NRA-ILA SPECIAL FAX ALERT
9/5/00
CLINTON-GORE-RENO JUSTICE DEPARTMENT CONFIRMS
ITS OFFICIAL POSITION: INDIVIDUAL LAW-ABIDING CITIZENS
HAVE NO RIGHT TO KEEP AND BEAR ARMS!
What follows on the next page of this Special FAX Alert is the
text of a letter from the Department of Justice to an NRA member. The
letter is also posted on www.NRAILA.org.
The letter confirms what we reported in a previous FAX Alert (No.
24, June 16) -- that the Clinton-Gore-Reno Justice Department stands by
its contention that law-abiding individual Americans have NO Right to Keep
and Bear Arms!
This letter should serve as a stark reminder to all gun owners why
this year�s elections are so critical to the future of the Second
Amendment.
On Friday, you will receive a "Grassroots Election Action FAX
Alert" that will outline the steps you must take in the coming weeks and
months to ensure we can replace elected officials and government-appointed
bureaucrats who view the Second Amendment with such hostility.
We hope you will share this letter with your family, friends, and
fellow firearm owners and use it to ensure that all of our supporters are
fully engaged in this year�s elections.
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U. S. Department of Justice
Office of the Solicitor General
Solicitor GeneralWashington, D.C. 20530
August 22, 2000
Dear Mr. (Name Deleted):
Thank you for your letter dated August 11, 2000, in which you
question certain statements you understand to have been made by an
attorney for the United States during oral argument before the Fifth
Circuit in United States v. Emerson. Your letter states that the attorney
indicated that the United States believes �that it could �take guns away
from the public,� and �restrict ownership of rifles, pistols and shotguns
from all people.�� You ask whether the response of the attorney for the
United States accurately reflects the position of the Department of
Justice and whether it is indeed the government�s position �that the
Second Amendment of the Constitution does not extend to the people as an
individual right.�
I was not present at the oral argument you reference, and I have
been informed that the court of appeals will not make the transcript or
tape of the argument available to the public (or to the Department of
Justice). I am informed, however, that counsel for the United States in
United States v. Emerson, Assistant United States Attorney William Mateja,
did indeed take the position that the Second Amendment does not extend an
individual right to keep and bear arms.
That position is consistent with the view of the Amendment taken
both by the federal appellate courts and successive Administrations. More
specifically, the Supreme Court and eight United States Courts of Appeals
have considered the scope of the Second Amendment and have uniformly
rejected arguments that it extends firearms rights to individuals
independent of the collective need to ensure a well-regulated militia. See
United States v. Miller, 307 U.S. 174 (1939) (the �obvious purpose� of the
Second Amendment was to effectuate Congress�s power to �call forth the
Militia to execute the Laws of the Union,� not to provide an individual
right to bear arms contrary to federal law�); Cases v. United States, 131
F.2d 916, 921 (1st Cir. 1942) (�The right to keep and bear arms is not a
right conferred upon the people by the federal constitution.�); Eckert v.
City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973) (�It must be remembered
that the right to keep and bear arms is not a right given by the United
States Constitution.�); United States v. Johnson, 497 F.2d 548, 550 (4th
Cir. 1974); United States v. Warin, 530 F.2d 103, 106-07 (6th Cir. 1976)
(�We conclude that the defendant has no private right to keep and bear
arms under the Second Amendment.�); Stevens v. United States, 440 F.2d
144, 149 (6th Cir. 1971) (�There can be no serious claim to any express
constitutional right of an individual to possess a firearm.�); Ouilici v.
Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (�The right to
keep and bear handguns is not guaranteed by the second amendment.�);
United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (�The rule
emerging from Miller is that, absent a showing that the possession of a
certain weapon has some relationship to the preservation or efficiency of
regulated militia, the Second Amendment does not guarantee the right to
possess the weapon.�); United States v. Tomlin, 454 F.2d 176 (9th Cir.
1972); United States v. Swinton, 521 F.2d 1255, 1259 (10th Cir. 1975)
(�There is no absolute constitutional right of an individual to possess a
firearm.�).
Thus, rather than holding that the Second Amendment protects
individual firearms rights, these courts have uniformly held that it
precludes only federal attempts to disarm, abolish, or disable the ability
to call up the organized state militia. Similarly, almost three decades
ago, the Department of Justice�s Office of Legal Counsel explained:
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.
Letter from Mary C. Lawton, Deputy Assistant Attorney General, Office of
Legal Counsel, to George 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)). See also, e.g.,
Federal Firearms Act, Hearings before the Subcommittee to Investigate
Juvenile Delinquency of the Committee on the Judiciary, United States
Senate 41 (1965) (Statement of Attorney General Katzenbach) (�With respect
to the second amendment, the Supreme Court of the United States long ago
made it clear that the amendment did not guarantee to any individuals the
right to bear arms.�).
I hope this answers your question. Thank you again for writing.
Yours sincerely,
Seth P. Waxman
--
Who obviously has never read US v. Miller, as that is a complete
misunderstanding of it, the people are the militia, 10 USC 311(b).
Steve.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
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