Newsgroups: misc.legal,talk.politics.guns
From: [f--s--l] at [netcom.com] (David Feustel)
Subject: Excerpt from Mother Jones Antigun Issue
Date: Sun, 26 Dec 1993 19:32:55 GMT

I bought the anti-gun issue of Mother Jones today. What follows is
their summary of various supreme court cases involving the 2nd
Amendment. The magazine masthead indicates that they have a Lexis-Nexis
account. I don't think they used it for this issue.  Typos are mine.

Comments can be sent to:	Jeffrey Klein, Editor-in-Chief
				Mother Jones Magazine
				731 Market Street, Suite 600
				San Francisco, CA 94103.

They have an email address as well: [s--c--e] at [mojones.com.]

-----Mother Jones, Jan/Feb 1994, p.42 "The Second's Missing Half"-----

Emblazoned across the fron of the NRA headquarters in Washington,
D.C. is half of this amendment-the second half. It's a testament to
how well the NRA does its job that most Americans probably don't know
about the first half, with its clunky and inconvenient dependent
clause. But that's how the Founding Fathers wrote it. The NRA's
reasons for focusing on its bacside are fairly obvious, but what do
the courts say about the Second Amendment?

According to Jon S. Vernick and Stephen P. Teret of Johns Hopkins
University Injury Prevention Center, the Supreme Court has examined
two broad issues involving the amendment's reach. The first is whether
the amendment controls federal law only or whether it also can be
extended to the state and local levels. The second is whether it
protects individual rights to own firearms, or only collective,
"militia" rights.

On the first question, the Court ruled definitively in U.S. v.
Cruikshank that the amendment "means no more than {the right to keep
and bear arms) shall not be infringed by Congress." This 1876 ruling
established that states and localities are not prevented from anacting
their own gun-control laws - and the remain free to do so to this day.
[Note no mention whatsoever of the 14th Amendment here - daf]
In 1886, in Presser v. Illinois, the Court reaffirmed the concept of a
state's rights, as it were, to control guns, and this position has
never been modified. Therefore, it remains the Court's last word on
the subject. Lower courts have time and agin held to this precedent.

Regarding the second broad question of individual versus
state-militia rights, the Court held in its 1939 U.S. v. Miller
decision that individuals have in effect no right to keep and bear
arms under the amendment, but only a collective right having "some
reasonable relationship to the preservation or efficiency of a
well-regulated militia." Lower courts have consistently applied the
Miller decision in upholding various gun-control laws over the years.

The Supreme Court most recently revisited this question in 1980, when
it reconfirmed that "these legislative restrictions on the use of
firearms do not trench upon any constitutionally protected liberties."
One significant part of that case is that then Chief Justice Burger
and cureent Chief Justice Rehnquist both supported that
interpretation. Burger has denounced the NRA's editied version of the
amendment as a "fraud."

The legal precedents are clear: Almost any state or local gun-control
action is fine; the Second Amendment does not apply. On the federal
level, only laws interfering with state militias are prohibited. 
There's really no legal problem with gun control at all. As a
legendary sports figure once pointed out, in a different context, "
You could look it up." On the other hand, most Americans (56 %) don't
want to, [Why do I get the feeling that Mother Jones hasn't either -
daf] since they now agree with the statement, "Although the
Constitution provides the right to bear arms, American society has
changed to the point that it is too dangerous for this right to
continue as originally written." At this point, the NRA might want to
consider putting the front end of that amendment back up at
headquarters. It could be worse.

			--- end ---
-- 
Dave Feustel N9MYI <[f--s--l] at [netcom.com]>

I DON'T CARE about the deficit OR the national Debt;
*I* don't have any kids.