By Jon E. Dougherty
© 2000 WorldNetDaily.com
The U.S. Constitution's Second Amendment does not guarantee to Americans the individual right to keep and bear arms, according to a letter written by the U.S. solicitor general to a National Rifle Association member and posted on a NRA website.
The letter, dated Aug. 22 and signed by Solicitor General Seth Waxman, contains a number of references and passages from a series of U.S. court cases that the Justice Department says demonstrate that the Second Amendment to the Constitution does not "convey" an individual's 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," Waxman wrote. "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."
The Solicitor general's office primarily serves to supervise and conduct government litigation in the Supreme Court, and is involved in about two-thirds of all Supreme Court cases annually. Spokesman Wanda Martinson confirmed that Waxman had sent the letter.
The NRA member, whose name was removed from the letter by the organization when posted online at the NRA's website, had written to the Justice Department seeking clarification for a position taken by a U.S. attorney in a current gun-law case. The attorney had stated that "the Second Amendment does not extend an individual right to keep and bear arms."
The case, United States vs. Emerson, is currently on appeal in the Fifth U.S. Circuit Court of Appeals after U.S. District Judge Sam R. Cummings of Lubbock, Texas, ruled March 30, 1999, that a gun-control law prohibiting Dr. Timothy Joe Emerson from possessing a firearm while under a restraining order from his estranged wife was unconstitutional.
The law, Cummings wrote, "is unconstitutional because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights" to keep and bear firearms.
In his letter, Waxman cited nearly a dozen court cases that "have uniformly held that [the Second Amendment] precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia."
Also, Waxman cited a 30-year-old Department of Justice Legal Counsel interpretation of the Second Amendment.
"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," said the Legal Counsel interpretation, as quoted by Waxman. Since then, "there is no indication that Congress altered its purpose to protect state militias, not individual gun ownership [upon consideration of the Amendment]," the interpretation said.
"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," said the Justice Department.
"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," the interpretation concluded.
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