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Dateline: 06/10/02

The U.S. Supreme Court has again decided it wants nothing to do with the debate over exactly whose right to "keep and bear" firearms is protected by the U.S. Constitution.

Justices today declined without comment or dissent to consider two cases involving the Justice Department's recently stated policy that the Constitution's Second Amendment right to keep and bear arms applies to individuals, not just the state militias.

The Second Amendment states: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

In its 1939 decision in the case of U.S. v. Miller, the Supreme Court ruled that the Second Amendment applied only to rights having "some reasonable relationship to the preservation of efficiency of a well regulated militia." Not since U.S. v. Miller has the Supreme Court issued a definitive ruling otherwise interpreting the Second Amendment. 

Last November, however, U.S. Attorney General John Ashcroft informed all federal prosecutors that the Justice Department's official position was that the Second Amendment "protects the gun ownership rights of individuals, including persons who are not members of the militia to bear firearms." Ashcroft's statement supported the position advocated earlier by the Bush administration. 

The cases rejected by the Supreme Court are Emerson v. United States, and Haney v. United States.

In the well publicized 1998 case of Emerson v. United States, the 5th U.S. Circuit Court of Appeals rejected Emerson's appeal that a 1994 federal gun law denying persons under restraining orders the right to own guns was unconstitutional.

In its decision, the 5th Circuit Court found that while "the Second Amendment does protect individual rights" those same rights could be subject to "limited, narrowly tailored specific exceptions." In essence, the court ruled that, despite the fact that the Second Amendment protected the rights of individuals to own guns, federal gun control laws dealing with specific situations did not violate the Constitution. [See: Federal Court Backs Individual Gun Rights]

Of the 5th Circuit's decision in the Emerson case, Attorney General Ashcroft told federal prosecutors, "In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment."

In a letter to the Supreme Court regarding the appeals of Emerson and Haney, U.S. Solicitor General Theodore Olson wrote, "The current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms." That right, however, continued Olson is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

The case of Haney v. United States involved John Lee Haney, of Oklahoma, who claimed a federal gun control law banning the possession of machine guns violated his Second Amendment rights.

The Supreme Court agreed with the Justice Department's argument that lower court decisions in both the Emerson and Haney cases failed to warrant the justices' consideration.

U.S. v Miller: Another Interpretation 
Jeff Chan of RKBA.org (the Right to Keep and Bear Arms), presents a very valid alternative interpretation that the Supreme Court's U.S. v. Miller does indeed uphold the individuals' right to keep and bear arms.

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