Letter from U.S. DOJ Confirms: You Have NO Right to Keep and Bear Arms

[TheBluesMan]

Got this in an NRAILA FAX ALERT:

U. S. Department of Justice
Office of the Solicitor General
Solicitor General
Washington, 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:

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>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.[/quote]

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

It is most interesting to me that Waxman cites many of the same court cases that *we* RKBA defenders cite as supporting *our* position.

Let the games begin...


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RKBA!
"The people have the right to bear arms for their defense and security"
Ohio Constitution, Article I, Section 4
Concealed Carry is illegal in Ohio.
Ohioans for Concealed Carry Website

 

[KaMaKaZe]

Does this:
http://www.usdoj.gov/osg/aboutosg/waxman.photo.jpg

Look like someone who knows what they're talkin' about?

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God, Guns and Guts made this country a great country!

oberkommando sez:
"We lost the first and third and now they are after the Second!(no pun intended)"

[This message has been edited by KaMaKaZe (edited September 06, 2000).]

Sorry, a 348K photo takes too long for most people to load. I changed it to a link. - TBM

[This message has been edited by TheBluesMan (edited September 06, 2000).]

 

[Dead]

TheBluesMan,

It does NOT confirm that we do not have the right to keep and bear arms.

It simple confirms that the government believes that we the people dont have any rights at all. That we should simply bow our heads to their every whim. Soon we will all be getting our own little stars to wear.

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Dead [Black Ops]

 

[KaMaKaZe]

OMG that pic was HUGE!

I never bothered to go back and look at it. I just linked it off the original page (must have been sized).

Went back and looked at it, and it swallowed my browser (just about). But then again, unlimited bandwidth here at work. At while at home, I really should be more respectful of people that don't have hi-speed access..

NOT

 

[ruger45]

It confirms that the facit government of intimidation doesnt feel we should have any rights.
If they can twist the 2nd into some form of collective privelidge if even that nice what does that mean they can do with the first or fourth amendments....
But what was it a NRA booth worker once told me..oh yeah
'we have to compromise or well lose our guns'
hmmm wonder where well end up taking that road.
www.gunowners.org www.ccops.org www.jbs.org

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"those who sacrifice
liberty for security deserve neither"

 

[nralife]

I posted this back in June...


Check out the government's posistion on gun ownership! And people say that they don't want to take ALL of our guns!!!


Truth Squad - http://www.guntalk.com
June 14, 2000

To Members of the Gun Talk Truth Squad

Howdy:

Yesterday I flew to New Orleans to listen to arguments on the Emerson
Case. This is an important case for Second Amendment supporters. For a
complete background on Emerson, see the Second Amendment Foundation
website: http://www.saf.org/EmersonViewOptions.html.

Neal Knox sent out an alert about this immediately after the arguments
were heard, and while I agree with much of that report, Neal wasn't there.
Also, because Neal has been in this fight for a long time (as has Linda
Thomas, who gave him the report), I think they both might have glossed
over something that many gun owners would find amazing. By the way,
Neal's email reports are good information, and I suggest that you
subscribe to them. www.nealknox.com. He and I don't always agree, but if
you take his reports as a part of your research, I think you will find
them useful.

I sat next to Linda, which is interesting, in that our notes differ in a
couple of places. Such is reporting, I guess. Nothing big, but a few
details.

Here are the "Cliff Notes" on the case. Dr. Emerson was issued a
boilerplate restraining order in the middle of a divorce. There were 22
orders in the R.O., and three of them said, basically, that he had to stay
away from his wife. By federal law (since 1994), a person who is under a
restraining order, even if there is no evidence of a threat of violence,
may not own firearms. Yes, that's right. You lose a civil,
Constitutional right because a judge pushes a key on a computer and a
standard R.O. comes out.

The original decision by Judge Sam Cummings is a work of art, tracing the
history of government restriction of arms ownership (swords, armor,
firearms) back to England, before there was a United States of America.
You owe it to yourself to read this decision: http://www.saf.org/1999Emersoncase2amend.html.

Now, to the appeal in the Fifth Circuit in New Orleans, yesterday. First,
let me say that the lawyer (Crooks) representing Emerson was . . . how
shall I say this . . . not the best I've seen. However, the attorney from
the Alabama Attorney General's office (Cooper) was very good. The A.G.'s
office argued on Emerson's side.

The three-judge panel (Garwood, DeMoss, and Parker) asked tough questions,
and showed that they weren't buying the government's (federal government)
assertion that because a firearm once traveled across state lines, that
this gun was "involved in interstate commerce." This is important,
because if the firearm is not involved in interstate commerce, the federal
government has no place in this, and it is a state matter.

Note this exchange:

DeMoss: "I have a 16 gauge shotgun in my closet at home. I have a
20-gauge shotgun. I also have a 30-caliber rifle at home. Are you saying
these are "in or affecting interstate commerce?

Meteja (government lawyer): "Yes"

You'll note the personal tone to Judge DeMoss's question. This personal
tone carried throughout the one-hour session.

Veterans of Second Amendment battles understand that the U.S. government
takes the position that you do not have a right to own a gun. Many
people, however, say "Oh come on, you don't really believe that, do you?"

Well, here it is from the mouth of the lawyers representing the United
States government, from my notes at the Emerson case.

Judge Garwood: "You are saying that the Second Amendment is consistent
with a position that you can take guns away from the public? You can
restrict ownership of rifles, pistols and shotguns from all people? Is
that the position of the United States?"

Meteja (for the government: "Yes"

Judge Garwood was having none of that.

Garwood: "Is it the position of the United States that persons who are
not in the National Guard are afforded no protections under the Second
Amendment?"

Meteja: Exactly.

Meteja then said that even membership in the National Guard isn't enough
to protect the private ownership of a firearm. It wouldn't protect the
guns owned at the home of someone in the National Guard.

Garwood: Membership in the National Guard isn't enough? What else is
needed?

Meteja: The weapon in question must be used in the National Guard.

In other words, no one, even if a member of the National Guard, has a
right to own guns privately. That is the position of the U.S. government.

The judges seemed to reject the federalism position of the government
which says that once an item has moved across a state line, it is forever
covered by federal laws because it is involved in interstate commerce.
This rejection seems to be in line with several narrow decisions from the
Supreme Court in recent years.

The judges also appeared incredulous that the government was saying that
no one has a right to own guns, and that the Second Amendment guarantees
only the right of the National Guard to own guns.

It will be weeks or months before a decision is issued on this case, and
nothing is assured, by any means. However, if you need some hope, I leave
you with this final statement to government lawyer, made by Judge DeMoss.

"You shouldn't let it bother your sleep that Judge Garwood (the senior
judge) and I, between us, own enough guns to start a revolution in most
South American countries."

---------------------------------------------

The Emerson case will eventually end up in the Supreme Court. The next president will nominate as many as 4 new Supreme Court justices to the high court to replace those who will soon be retiring. Al Gore must not be allowed to pack the court with liberal antigun judges! Bush may not be perfect, but he is our only hope to send Al Gore packing back to the tobacco plantation from whence he came.


Joe


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NRA Joe's Second Amendment Discussion Forum

http://Second.Amendment.Homepage.com

 

[Jeff Thomas]

A good friend of mine has an interesting, common sense response to this kind of thing ... 'so, if the RKBA is not an individual right, how did so many people get firearms, and how come we have so many gun stores?'. Has the federal government simply been lax in their duties for the last 224 years?

There is clearly a split in the legal community at this time regarding the RKBA. Many noted scholars and lawyers now support the individual RKBA.

Note also that at one time, courts held that black men were not citizens, in spite of the fact that many had been citizens of their states since 1776 ( http://www.historyplace.com/lincoln/dred.htm ).

Courts make mistakes. Waxman (wonder if he's related to the fascist in CA?) cites only those cases and passages that selectively bolster his position. One need only read the amicus briefs submitted in U.S. v. Emerson to see the multitude of cases and support for the RKBA. (see www.saf.org )

Fascists like Waxman do help us greatly. They have helped highlight the bright line between the U.S. government's position on the RKBA versus the freedoms once held. And, for those naive, trusting fools who still believe 'they won't come after my guns' .... well, it does put a finer point on this discussion, doesn't it?

Regards from AZ

 

[FUD]

I find it interesting how the nine other admendments in the bill of rights refer to INDIVIDUAL rights but the second admendment does not. Why would our founding fathers have shifted gears like that in their way of thinking when it came to the second admendment?

 

[dZ]

http://www.2ndlawlib.org/other/other/senrpt/fopafind.html
The Congressional Finding in the 1986 FOPA that the Second Amendment guarantees "the rights of citizens" to keep and bear arms was supported
by the 1982 Senate Report. Additionally, two other scholarly studies were inserted into the legislative record in support of Congress' findings during Senate
debate on the Firearms Owners' Protection Act of 1986. David I. Caplan, Restoring the Balance: The Second Amendment Revisited, 5 Fordham Urb.
L.J. 31 (1976), reprinted in 131 Cong. Rec. S8692 (1985); Stephen Halbrook, To Keep and Bear Their Private Arms: The Adoption of the
Second Amendment, 1787-1791, 10 N. Ky. L. Rev. 13 (1982), reprinted in 131 Cong. Rec. S9105 (1985).
The 1986 FOPA Congressional Findings are as follows:

CONGRESSIONAL FINDINGS--The Congress finds that--
(1) the rights of citizens--
(A) to keep and bear arms under the second amendment
to the United States Constitution;
(B) to security against illegal and unreasonable searches
and seizures under the fourth amendment;
(C) against uncompensated taking of property, double
jeopardy, and assurance of due process of law under
the fifth amendment; and
(D) against unconstitutional exercise of authority under
the ninth and tenth amendments;
require additional legislation to correct existing firearms statutes and
enforcement policies; and
(2) additional legislation is required to reaffirm the intent of the
Congress, as expressed in section 101 of the Gun Control Act
of 1968, that "it is not the purpose of this title to place any
undue or unnecessary Federal restrictions or burdens on law-
abiding citizens with respect to the acquisition, possession, or
use of firearms appropriate to the purpose of hunting, trap-
shooting, target shooting, personal protection, or any other
lawful activity, and that this title is not intended to discourage
or eliminate the private ownership or use of firearms by law-
abiding citizens for lawful purposes."
(FOPA, 1(b), 100 Stat. 449 (1986) (codified at 18 U.S.C. 926 1986)).
http://www.2ndlawlib.org/other/other/senrpt/senrpt.html#h1

Within our own century, the only occasion upon which the Second
Amendment has reached the Supreme Court came in United States v.
Miller.[63] There, a prosecution for carrying a sawed off shotgun
was dismissed before trial on Second Amendment grounds. In doing so, the court took no
evidence as to the nature of the firearm or indeed any other factual matter. The Supreme
Court reversed on procedural grounds, holding that the trial court
could not take judicial notice of the relationship between a firearm and the
Second Amendment, but must receive some manner of evidence. It did not
formulate a test nor state precisely what relationship might be required. The
court's statement that the amendment was adopted "to assure the continuation
and render possible the effectiveness of such [militia] forces" and "must be interpreted
and applied with that end in view", when combined with the court's
statement that all constitutional sources "show plainly enough that the militia
comprised all males physically capable of acting in concert for the common
defense.... these men were expected to appear bearing arms supplied by themselves
and of the kind in common use at the time,"[64] suggests that at the very
least private ownership by a person capable of self defense and using an ordinary
privately owned firearm must be protected by the Second Amendment.
What the Court did not do in Miller is even more striking: It did not suggest
that the lower court take evidence on whether Miller belonged to the National
Guard or a similar group. The hearing was to be on the nature of the (p.11)firearm,
not on the nature of its use; nor is there a single suggestion that National
Guard status is relevant to the case.

The Second Amendment right to keep and bear arms therefore, is a right of the
individual citizen to privately posses and carry in a peaceful manner
firearms and similar arms. Such an "individual rights" interpretation is in full accord
with the history of the right to keep and bear arms, as previously
discussed. It is moreover in accord with contemporaneous statements and formulations
of the right by such founders of this nation as Thomas Jefferson and
Samuel Adams, and accurately reflects the majority of the proposals which led up to the
Bill of Rights itself. A number of state constitutions, adopted prior
to or contemporaneously with the federal Constitution and Bill of Rights, similarly
provided for a right of the people to keep and bear arms. If in fact this
language creates a right protecting the states only, there might be a reason for it to be
inserted in the federal Constitution but no reason for it to be inserted in
state constitutions. State bills of rights necessarily protect only against action by the state,
and by definition a state cannot infringe its own rights; to attempt
to protect a right belonging to the state by inserting it in a limitation of the state's
own powers would create an absurdity. The fact that the contemporaries of
the framers did insert these words into several state constitutions would indicate
clearly that they viewed the right as belonging to the individual citizen,
thereby making it a right which could be infringed either by state or federal government
and which must be protected against infringement by both.
Finally, the individual rights interpretation gives full meaning to the words chosen
by the first Congress to reflect the right to keep and bear arms. The
framers of the Bill of Rights consistently used the words "right of the people" to reflect
individual rights--as when these words were used to recognize the
"right of the people" to peaceably assemble, and the "right of the people" against
unreasonable searches and seizures. They distinguished between the rights
of the people and of the state in the Tenth Amendment. As discussed earlier, the
"militia" itself referred to a concept of a universally armed people, not to
any specifically organized unit. When the framers referred to the equivalent of our
National Guard, they uniformly used the term "select militia" and
distinguished this from "militia". Indeed, the debates over the Constitution constantly
referred to organized militia units as a threat to freedom comparable to
that of a standing army, and stressed that such organized units did not constitute,
and indeed were philosophically opposed to, the concept of a militia.
That the National Guard is not the "Militia" referred to in the second amendment
is even clearer today. Congress has organized the National Guard
under its power to "raise and support armies" and not its power to
"Provide for organizing, arming and disciplining the Militia".[65] This Congress chose to
do in the interests of organizing reserve military units which were not limited in deployment
by the strictures of our power over the constitutional militia,
which can be called forth only "to execute the laws of the Union, suppress
insurrections and repel invasions." The modern National Guard was specifically
intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).(p.12)

The conclusion is thus inescapable that the history, concept, and wording of the
second amendment to the Constitution of the United States, as well
as its interpretation by every major commentator and court in the first half-century
after its ratification, indicates that what is protected is an individual right
of a private citizen to own and carry firearms in a peaceful manner.


[This message has been edited by dZ (edited September 06, 2000).]

 

[Jeff Thomas]

One other point ... if you want to have some fun with an anti-self defense gun bigot, ask them if they've ever read Miller. Odds are, they haven't.

As I recall, the case is only 4 pages long. This always demonstrates to me how little the facts matter in their debates.

Regards from AZ

 

[Brett Bellmore]

Simple question: WHY won't the court make a transcript or tape of the arguments available to the public or the Department of Justice? Doesn't that strike the rest of you as rather, well, strange? Important case, the argument was open to the public, huge number of people interested, and they're keeping the transcript a deep dark secret???

Maybe Clinton has asked them to keep it under wraps, to avoid the transcript from being widely distributed to gun owners?

Methinks a FOIA request might be in order!

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Sic semper tyrannis!

 

[RHC]

Jeff Thomas is right. Anyone has read Miller v. U.S. understands that it really is just the opposite of what antis cite it for. The court was saying that since no one had provided evidence that the shotgun was a militia weapon, there was no right to it. That means if it was a militia weapon, there would be such a right. So militia weapons such as rifles and pistols should be protected.