Before proceeding, it would probably be a good idea to read
Part I and
Part II if you haven't already.
Mr. Licht continues:
I am asking sincerely as a newly minted (though not born yesterday) attorney that wants to make the second amendment (and the constitution) the law of the land for my children (and yours). Everywhere I look I don’t see it as a practical reality. As much as I want to believe in the second, it seems like a mass delusion (or worse) a cynical use of the concept for pure fund raising hype with no expectation (by the professional promoters) that there is any argument to win.
We should all be familiar with
the letter John Ashcroft wrote to the NRA proclaiming "[L]et me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
That was bold language for a sitting attorney general. It filled the "pro-gun" community with hope. It
evidently aligned their interests with those of the Republican party, especially when the treasonous record of Democrats in general on the Second Amendment is considered.
Often overlooked is the footnote Ashcroft added, a seemingly innocuous
"*Your actual mileage may vary" kind of statement that, on the surface, would not create too much concern with conservative "law and order" gun-owning voters:
Of course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons, just as the First Amendment does not prohibit shouting “fire” in a crowded movie theater. As Samuel Adams explained at the Massachusetts ratifying convention, the proposed Constitution should”never [be] construed . . .to prevent the people of the United States who are peaceable citizens, from keeping their own arms.”
With all due respect to Mr. Ashcroft, he's describing a prior restraint on the Second Amendment and a response to an act for his First Amendment example. So he's talking apples and oranges, but most people never noticed. Besides--
you can yell "Fire!" in a crowded theater.
What this does is justify the feds being in the "gun crime" business, even though there is no enumerated Constitutional authority delegated to them in this area by
We the People. Further, it reflects a belief that the unambiguous "shall not be infringed" from the Bill of Rights is trumped by the open-ended and amorphous standard of "compelling state interest," a term found nowhere in the Constitution, and which can be twisted and contorted as much as, say, the Interstate Commerce Clause.
Republican Kool-Aid vendor
Hugh Hewitt--a man with an awesome understanding of Constitutional law as practiced by "the establishment"--practically admitted as much when blogger
Publicola called in to his program. "
Intermediate scrutiny," Hewitt pronounced, is the best gun owners can hope for on the Second Amendment.
From a political "pragmatism" perspective, and as much as this may infuriate us, he's probably right. If we rely on "the system," with the current state of gun owner awareness, involvement and commitment, we'll be left with the Second (Class) Amendment from the Bill of Rights (Lite).
This means practically every "gun control" edict will find justification for being upheld. What judge
won't find a "compelling state interest" to license gun owners, or register them, or subject citizens to the prior restraint of background checks, or permitting (
and prohibiting!) the acceptable manner, places and conditions for bearing arms, concealed or otherwise. Certainly a "compelling state interest" can be found to keep "weapons of war off our streets," thus securing the National Firearms Act and FOPA '86, and blocking further inroads against GCA '68...
This is the door Ashcroft left open--one that would allow his boss and his successor to both proclaim support for renewing the "assault weapon" ban. But it was not his footnote that got the attention, was it? Gun owners almost had an orgy over the "sea change" in attitude-- without asking what in practice had really changed.
We tested Mr. Ashcroft's sincerity with
a petition you may have seen circulating a few years back. Without going into a lot of detail, which you can catch up on
here, we stated grievances of California gun owners who have had their rights unlawfully abridged, specifying the violations in detail. The theory was, had any other right been abused by local or state governments, such as the rights of minorities to vote, or to enjoy full lawful use of public accommodations, etc., the Justice Department would be quick to send a team down to enforce "the supreme law of the land" by which all subordinate political entities are supposedly bound.
Did we think this was really going to happen? We'd have been floored, but we thought it important to separate rhetoric from (lack of) deeds--if we were being sold a bill of goods, that is, Ashcroft mouthing support for 2A with no action offered or taken, we'd at least be able to point out that we were being played.
Over the course of the year the "Ashcroft Petition" was promoted, we managed to get over 30,000 gun owners to sign on from every state of the union. Understand we did this with no budget or donation requests, strictly as part time volunteers--and this was not an Internet petition, but one that required actual signatures. Over the course of the year we mailed several large boxes of signed petitions to the AG, along with cover letters summarizing our project and reminding him of our previous correspondences. The only acknowledgment we ever received was
a non-responsive reply from the chief of the Terrorism and Violent Crime Section--a curious and chilling person to assign such a project to, we thought...
There's more to this story, of course, including professional representatives of the most prominent "gun lobby" group discouraging members from signing the petition because we who promoted it were "wild-eyed extremists." The bottom line is, we were small fries. Bush support for the AWB notwithstanding (hell it was touted as a clever ploy to appeal to "moderates"), gun owners danced to the Lee Atwater tune--
who else were they gonna vote for?While paying for the privilege?
"Fund raising hype" ? I guess a cynical person would start to have some questions...
You'll note I haven't come up with any solutions yet. I'm still working on defining the problem, and have the rest of Mr. Licht's email to address.
More to come...
