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Justice Department Ignores Second Amendment Violations

UPDATE ON "ASHCROFT" PETITION

by Brian Puckett

August 7, 2002

A few months ago Citizens Of America (citizensofamerica.org) and KeepAndBearArms.com joined forces to create, deliver, and follow up on the Petition to Enforce the Second Amendment.

The petition is carefully constructed yet simple to read and understand. After laying out its case in simple segments, it then demands that U.S. Attorney General John Ashcroft act on his now-famous statement that the Second Amendment protects an individual right, and that he use his office to protect this right in states that are blatantly violating it, with California being the first choice of targets.

Over 20,000 handwritten petition signatures to the petition have been delivered to Ashcroft at the Department of Justice, with more to come. We requested that Mr. Ashcroft respond to the petition when we delivered the first two boxes of signatures, but he did not. Our third letter finally received a response, if it can be called that, from James S. Reynolds, Chief of the Terrorism and Violent Crime Section. Why him? We have no idea. The text of his letter is reproduced at the end of this article.

When a 16-year old male is slammed onto a car hood and punched once by a police officer, the U.S. Department of Justice instantly swings into action. Yet the Department of Justice, led by Mr. Ashcroft, does absolutely nothing when states such as California pass an unconstitutional "law" criminalizing the right to own and use the very firearms implicitly referred to by the Second Amendment. He does absolutely nothing about the men, women, and children of states such as California who are being raped, robbed, and murdered every week because they cannot "legally" protect themselves with the best tools for the job. He does absolutely nothing when 20,000 Americans sign a petition pointing out this illegality and hypocrisy. He does absolutely nothing when Gray Davis, the governor of California, states in a recent lawsuit that…

"That is, Plaintiff [Mr. Bird, or any American citizen living in California] has no legally recognized right to bear arms under the Second Amendment of the United States Constitution."

"...the Constitution does not provide a private right to bear arms."

"...the Second Amendment does not protect the possession of a weapon by a private citizen."

Our third letter to Mr. Ashcroft stated:

"While you say the Constitution protects an individual's right to possess guns, you also say the high court need not test that principle now. Why on earth not? People's lives are being destroyed right now, for simply exercising their supposedly protected rights. Why would someone with the authority to intervene allow them to remain at risk for another minute? We have a narrow time frame to capitalize on, and in the wake of recent events, when has there been a better time to do so? When will a better time arise? There are no guarantees that Mr. Bush will win reelection - and if he doesn't, you could well be replaced by another Janet Reno, who will simply direct a brief to rescind the ones you just issued."

George Bush is supposed to be "pro-gun rights". Attorney General Ashcroft is supposed to be "pro-gun rights". They are saying things they believe gun owners want to hear, the things they believe will win our votes. But they are not doing anything to follow up on these mere words. 

We have not finished with the Petition and Mr. Ashcroft. -BCP

Editor's Note:  Read our third letter to DOJ immediately below, or click here to read the response we received from DOJ to this letter.


Third COA/KeepAndBearArms Letter to Ashcroft Re: Petition to Enforce Second Amdt.

Originally published here

May 14, 2002

Attorney General John Ashcroft
U.S. Department of Justice 
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001

Subject: Petition for Enforcement of the Second Amendment/DoJ's Briefs to the Supreme Court

Dear Mr. Ashcroft,

On behalf of over 20,000 Americans who have sent you their signatures supporting the Petition, we must convey deep disappointment that you are ignoring our repeated pleas. To date, you have received two separate mailings from gun owners seeking redress for documented violations of our Constitutionally-guaranteed Second Amendment rights. Thousands more signatures have since been gathered and will be sent to you in the near future. Additionally, hundreds of Petition supporters have sent emails to your office communicating their expectation that you do your admitted sworn duty "to uphold and defend the Constitution. That responsibility applies to all parts of the Constitution, including the Second Amendment." Finally, multiple telephone calls to DoJ to speak with a representative and ascertain the status of this important effort were shunted to one Barbara Comstock's voicemail and never returned.

You appear to be deliberately indifferent to the enumeration of Second Amendment infringements documented in the Petition. Why? And how do you reconcile this official silence against the briefs Solicitor General Olson filed with the Supreme Court, declaring "The current position of the United States…is that the Second Amendment more broadly protects the rights of individuals…to possess and bear their own firearms…"?

These words are welcome, but as we have maintained since we first contacted you, without action they are meaningless. They may even be construed as politically opportunistic, especially in light of a pattern of DoJ and Bush Administration actions that continue to deprive Americans of their right to keep and bear arms:

You have said that the DoJ "can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws."

Your assertion that Second Amendment protections extend to individuals "who are not members of any militia," supports the unfounded collective rights/National Guard model and denies the clear intent of the Founders, who understood the militia to be "the whole people, except for a few public officials," as well as historical and legal precedents.

Solicitor General Olson claims that depriving Dr. Timothy Emerson of his gun rights, even though he has never been convicted of a crime, "reflects a sounder understanding of the scope and purpose of the Second Amendment."

Solicitor General Olson's argues that Thomas Lamar Bean, convicted in Mexico for neglecting to remove a box of ammunition from the back of his truck, should not have his gun rights restored by the judiciary. He knows this is a "Catch-22," because Congress has de-funded the BATF from conducting such actions. And since when does a foreign conviction constitute due process under the United States Constitution? The presiding judge affirmed that Bean had committed no felony under U.S. law. Using this logic, an American convicted of possessing a Bible in Saudi Arabia or preaching in Communist China could have his right to bear arms forever denied under federal law! And Olson goes so far as to argue that the case is not about Mr. Bean, but poses a threat because others may then seek restoration of their rights as well, as if this is not proper, and as if one man should be forced to pay for alleged risks posed by others!

Solicitor General Olson has urged the high court not to hear a challenge to a ruling by the Tenth Circuit Court of Appeals, that said in part, "[S]everal facts [are] logically necessary to establish a Second Amendment violation. As a threshold matter, [defendant] must show that…he is part of a state militia." This is in direct contradiction of the DoJ's stated position and a ruling by the Fifth Circuit Court of Appeals, and such disparities in application of the law result in unequal protection of American citizens based on jurisdictional judicial tyranny instead of the Constitution.

The DoJ supports, rather than challenges abominations like the Lautenberg ex post facto citizen disarmament edict, where past misdemeanors result in lifetime gun bans.

The DoJ supports the "gun-free school zone" edict ensuring concentrated disarmed victim pools.

The DoJ disregards clear proscriptions in federal law against maintaining a database of gun owners-for any amount of time.

Combine the above with the Bush administration's refusal to allow pilots to be armed (and without meaning to appear unsympathetic or disrespectful, I wonder if Solicitor General Olson wishes there had been an armed pilot on board Flight 77), and its support for continuing the unconstitutional "assault weapon" ban instead of allowing it to sunset or taking action to overturn it- all these are indicative of an administration that has no intention of recognizing the uninfringed right of the people to keep and bear arms. 

Will your recorded statements, public actions and "compelling state interest" theory extend to supporting all of the over 20,000 "gun control" edicts currently on the books? Are there no laws that you deem Constitutionally repugnant? What about future legislation banning .50 caliber rifles, requiring registration and licensing, and prohibiting the ownership or carrying of arms whenever the "reasonable regulation" excuse is used to justify passage of such edicts?
While you say the Constitution protects an individual's right to possess guns, you also say the high court need not test that principle now. Why on earth not? People's lives are being destroyed right now, for simply exercising their supposedly protected rights. Why would someone with the authority to intervene allow them to remain at risk for another minute?
We have a narrow time frame to capitalize on, and in the wake of recent events, when has there been a better time to do so? When will a better time arise? There are no guarantees that Mr. Bush will win reelection- and if he doesn't, you could well be replaced by another Janet Reno, who will simply direct a brief to rescind the ones you just issued.

Additionally, Justice Thomas has speculated if "this Court will have the opportunity to determine...that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.'" Justice Scalia wrote that "Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that." We have no assurances that the composition of the Court will remain so favorable. 

We MUST take advantage of this unprecedented convergence of opportunities.

Mr. Ashcroft, we have come to you in good faith as loyal American citizens seeking protection of our rights, and you won't even answer us. We have no doubt that were any state depriving minority American of their civil rights, you would properly take action to stop it. Gun owners are being discriminated against-prosecuted and persecuted for simply exercising a right guaranteed to them under the supreme law of the land, and many state courts, such as those in California, won't even allow us to raise the Second Amendment in our defense. How can our rights be protected peaceably under the law if you will not use your authority to protect them?

Many of us are speculating on what the new DoJ position on the Second Amendment really means-if anything. If you truly support an individual rights interpretation, there are many concrete restorative actions you can take immediately. Acting on our Petition is but one of them.

Are your words simply intended to galvanize gun owner support for President Bush and the Republicans without them doing anything to actually deserve it, while they still implement, enforce and enact encroachments they should be repealing? Are the broad, undefined exceptions you have alluded to in the briefs intended to shape a future high court decision to validate existing and future gun control edicts under the "compelling state interest" doctrine? 

We are still waiting for your response. We have been patient over these many months since we first appealed to you-but we deserve an answer now. Can we rely on you to take actions to protect our rights or will you continue to ignore us? Will you give us the protection we deserve, or must we protect ourselves? Will you answer us, Mr. Ashcroft? Or must we speculate, and attempt to divine your intent from your silence?

Sincerely,

[signed]

David Codrea
Petition Coordinator
Redondo Beach, California
Brian Puckett
President, Citizens of America
Santa Monica, California
Angel Shamaya
Director, KeepAndBearArms.com
Flagstaff, Arizona

 

Response to our third letter from the US DOJ

NOTE: Click here to see scanned image of letter below

U.S. Department of Justice
Criminal Division
Washington, D. C 20530

July 1, 2002

Mr. Brian Pucket, President 
Citizens of America
2118 Wilshire Boulevard, # 447 
Santa Monica, California 90403

Dear Mr. Puckett:

This responds to a recent letter from you and other officers of your organization which criticizes the Department of Justice's position in recent litigation concerning the application and scope of the Second Amendment. You maintain that, despite the Department's pronouncement that the Second Amendment guarantees an individual right to bear arms, its positions in recent and pending litigation are inconsistent with that view. Among other things, you take issue with the position taken by the Department in its opposition to a petition for certiorari in Emerson v. United States, that the petitioner, Dr. Timothy Emerson, could be deprived of his firearms rights despite the fact that he has never been convicted of a crime.

As we explained in our response to the petition for certiorari in Emerson, the current position of the government with respect to the Second Amendment is that it protects the rights of individuals, including persons not members of any militia or engaged in active military service or training, to possess and bear their own firearms. This right, however, is subject to a number of reasonable, historically-based restrictions, one of which is to deny unfit persons from possessing firearms. The Fifth Circuit properly concluded in the Emerson decision that persons who are the subject of domestic violence restraining orders, as defined in 18 U.S.C. § 922(g)(8), fall within this category.

Your letter also voices disagreement with the positions taken by the Solicitor General in other cases involving firearms and expresses the view that such positions are inconsistent with the Department's public pronouncements concerning the scope of the Second Amendment. As these cases are the subjects of ongoing litigation, it is inappropriate for the Department to comment further upon them. 

We appreciate your expression of views on this important topic.

Sincerely,

[signature]

James S. Reynolds, Chief
Terrorism and Violent Crime Section

 

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