[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2341-S2343]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORZINE:
  S. 364. A bill to prohibit the use of taxpayers funds to advocate a 
position that is inconsistent with existing Supreme Court precedent 
with respect to the Second Amendment; to the Committee on the 
Judiciary.
  Mr. CORZINE. Mr. President, today I am introducing legislation to 
prohibit the use of taxpayer funds to advocate a position on the 
meaning of the Second Amendment that is inconsistent with existing 
Supreme Court precedent, as expressed in the Supreme Court case of 
United States v. Miller.
  This legislation responds to the Bush Administration's filing of two 
unprecedented briefs to the United States Supreme Court, which argued 
that the

[[Page S2342]]

Second Amendment establishes an individual right to possess firearms. 
In taking this position, the Justice Department directly contradicted 
the well-established precedents of the Supreme Court, as expressed in 
the seminal case of United States v. Miller. In that 1939 case, the 
Supreme Court found that the Second Amendment did not establish a 
private right of individuals to possess firearms, but rather was 
intended to ensure the effectiveness of groups of citizen-soldiers 
known at the time as the Militia.
  The Court in United States v. Miller explained the historical 
background to the Second Amendment and issued its ruling clearly and 
unambiguously. That ruling has never been reversed, and the Court has 
followed it in every subsequent related case. Similarly, the precedent 
in United States v. Miller has been followed by every Justice 
Department over the past several decades, including the Justice 
Departments of Presidents Ronald Reagan, Richard Nixon and George H.W. 
Bush.
  The meaning of the Second Amendment should not be a partisan issue. 
In fact, it should not be a political issue. It is a legal and 
constitutional issue. And the law on this question has been clearly 
established by the highest court in the land in case after case for a 
period of many decades.
  Unfortunately, instead of following the law, as Attorney General 
promised to do during his confirmation hearing, the Bush Administration 
and the Justice Department have used their authority to file briefs as 
a means of pursuing a partisan political agenda that flies in the face 
of established Supreme Court precedents. This is wrong. And, in my 
view, it is a misuse of taxpayer dollars.
  Congress should not have to pass a law to ensure that the Executive 
Branch follows the Constitution, as clearly interpreted by the Supreme 
Court. Unfortunately, in light of the Bush's Administration's latest 
actions, Congress must step in. After all, Congress's ultimate power is 
the power of the purse. And we have a responsibility to use that power, 
when necessary, to ensure that the Executive Branch complies with 
constitutional law.
  This responsibility flows from Congress's obligation to preserve, 
protect and defend the Constitution. It also flows from our obligation 
to ensure that taxpayer dollars are not misused. The American people 
should not be forced to pay taxes to support an unreasonable 
interpretation of the Second Amendment that is not only inconsistent 
with constitutional law, but that threatens to undermine legislation 
needed to reduce gun violence and to save lives.

  In 1998, more than 30,000 Americans died from firearm-related deaths. 
That is almost as many as the number of Americans who died in the 
entire Korean War. In my view, there is much that Congress needs to do 
to reduce these deaths, including enacting reasonable gun safety 
legislation. Yet if the Bush Administration prevails in its effort to 
radically revise the Second Amendment, such laws could well be 
undermined. The end result would be more death and more families losing 
loved ones to the scourge of gun violence.
  I have asked the Congressional Research Service whether there are any 
constitutional precedents that would bar the Congress from adopting 
this legislation, and the answer was ``no.'' I also would note that 
there is precedent for Congress prohibiting the use of taxpayer dollars 
to advocate positions with which Congress disagrees. For example, 
Congress for many years prohibited the Justice Department from using 
appropriated money to overturn certain rules under our antitrust laws. 
This responded to the filing of a brief in the Supreme Court by the 
Justice Department urging a revision of its precedents on resale price 
maintenance, and the legislation effectively blocked the Department 
from filing similar briefs.
  In conclusion, we should not allow taxpayer dollars to be used to 
misrepresent the meaning of the Second Amendment on behalf of a 
partisan, political agenda. We should defend the Constitution against 
such ideological attacks. We should protect taxpayers from being forced 
to subsidize ideological gambits. And we should ensure that the 
Constitution is not misused to undermine gun safety legislation that 
could save the lives of many innocent Americans.
  I hope my colleagues will support the bill, and I ask unanimous 
consent that the text of the legislation be printed in the Record, 
along with some related materials about this matter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 364

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PROHIBITION ON THE USE OF FUNDS.

       No funds appropriated to the Department of Justice or any 
     other agency may be used to file any brief or to otherwise 
     advocate before any judicial or administrative body any 
     position with respect to the meaning of the Second Amendment 
     to the Constitution that is inconsistent with existing 
     Supreme Court precedent, as expressed in United States v. 
     Miller (307 U.S. 174 (1939)).
                                  ____


                [From the New York Times, May 12, 2002]

                A Faulty Rethinking of the 2nd Amendment

                            (By Jack Rakove)

       Stanford, CA.--The Bush administration has found a 
     constitutional right it wants to expand. Attorney General 
     John D. Ashcroft attracted only mild interest a year ago when 
     he told the National Rifle Association, ``The text and 
     original intent of the Second Amendment clearly protect the 
     right of individuals to keep and bear firearms.''
       Now, briefs just filed by Solicitor General Theodore Olson 
     in two cases currently being appealed to the Supreme Court 
     indicate that Mr. Ashcroft's personnel opinion has become 
     that of the United States government. This posture represents 
     an astonishing challenge to the long-settled doctrine that 
     the right to bear arms protected by the Second Amendment is 
     closely tied to membership in the militia. It is no secret 
     that controversy about the meaning of the amendment has 
     escalated in recent years. As evidence grew that a 
     significant portion of the American electorate favored the 
     regulation of firearms, the N.R.A. and its allies insisted 
     ever more vehemently that the private right to possess arms 
     is a constitutional absolute. This opinion, once seen as 
     marginal, has become an article of faith on the right, and 
     Republican politicians have in turn had to acknowledge its 
     force.
       The two cases under appeal do not offer an ideal test of 
     the administration's new views. One concerns a man charged 
     with violating a federal statute prohibiting individuals 
     under domestic violence restraining orders from carrying 
     guns; the other involves a man convicted of owning machine 
     guns, which is illegal under federal law. In both cases, the 
     defendants cite the Second Amendment as protecting their 
     right to have the firearms. The unsavory facts may explain 
     why Mr. Olson is using these cases as vehicles to announce 
     the administration's constitutional position while urging the 
     Supreme Court not to accept the appeals.
       The court last examined this issue in 1939 in United States 
     v. Miller. There it held that the Second Amendment was 
     designed to ensure the effectiveness of the militia, not to 
     guarantee a private right to possess firearms. The Miller 
     case, though it did not fully explore the entire 
     constitutional history, has guided the government's position 
     on firearm issues for the past six decades.
       If the court were to take up the two cases on appeal, it is 
     far from clear that the Justice Department's new position 
     would prevail. The plain text of the Second Amendment--``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''--does not support the unequivocal 
     view that Mr. Ashcroft and Mr. Olson have put forth. The 
     amendment refers to the right of the people, rather than the 
     individual person of the Fifth Amendment. And the phrase 
     ``keep and bear arms'' is, as most commentators note, a 
     military reference.
       Nor do the debates surrounding the adoption of the 
     amendment support the idea that the framers were thinking of 
     an individual right to own arms. The relevant proposals 
     offered by the state ratification conventions of 1787-88 all 
     dealt with the need to preserve the militia as an alternative 
     to a standing army. The only recorded discussion of the 
     amendment in the House of Representatives concerned whether 
     religious dissenters should be compelled to serve in the 
     militia. And in 1789, the Senate deleted one clause 
     explicitly defining the militia as ``composed of the body of 
     the people.'' In excising this phrase, the Senate gave 
     ``militia'' a narrower meaning than it otherwise had, thereby 
     making the Ashcroft interpretation harder to sustain.
       Advocates of the individual right respond to these 
     objections in three ways.
       They argue, first that when Americans used the word 
     militia, they ordinarily meant the entire adult male 
     population capable of bearing arms. But Article I of the 
     Constitution defines the militia as an institution under the 
     joint regulation of the national and state governments, and 
     the debates of 1787-89 do not demonstrate that the framers 
     believed that the militia should forever by synonymous with 
     the entire population.
       A second argument revolves around the definition of ``the 
     people.'' Those on the

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     N.R.A. side believe ``the people'' means ``all persons.'' But 
     in Article I we also read that the people will elect the 
     House of Representatives--and the determination of who can 
     vote will be left to state law, in just the way that militia 
     service would remain subject to Congressional and state 
     regulation.
       The third argument addresses the critical phrase deleted in 
     the Senate. Rather than concede that the Senate knew what it 
     was doing, these commentators contend that the deletion was 
     more a matter of careless editing.
       This argument is faulty because legal interpretation 
     generally assumes that lawmakers act with clear purpose. More 
     important, the Senate that made this critical deletion was 
     dominated by Federalists who were skeptical of the milita's 
     performance during the Revolutionary War and opposed to the 
     idea that the future of American defense lay with the militia 
     rather than a regular army. They had sound reasons not to 
     commit the national government to supporting a mass militia, 
     and thus to prefer a phrasing implying that the militia need 
     not embrace the entire adult male population if Congress had 
     good reason to require otherwise. The evidence of text and 
     history makes it very hard to argue for an expansive 
     individual right to keep arms.
       There is one striking curiosity to the Bush 
     administration's advancing its position at this time. 
     Advocates of the individual-right interpretation typically 
     argue that an armed populace is the best defense against the 
     tyranny of our own government. And yet the Bush 
     administration seems quite willing to compromise essential 
     civil liberties in the name of security. It is sobering to 
     think that the constitutional right the administration values 
     so highly is the right to bear arms, that peculiar product of 
     an obsolete debate over the danger of standing armies--and 
     this at a time when our standing army is the most powerful 
     the world has known.
                                  ____


                [From the Washington Post, May 10, 2002]

                            Guns and Justice

       The U.S. Solicitor General has a duty to defend acts of 
     Congress before the Supreme Court. This week, Solicitor 
     General Ted Olson--and by extension his bosses, Attorney 
     General John Ashcroft and President Bush--took a position 
     regarding guns that will undermine that mission.
       Historically, the Justice Department has adopted a narrow 
     reading of the Constitution's Second Amendment, which states 
     that ``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.'' Along with nearly all 
     courts in the past century, it has read that as protecting 
     only the public's collective right to bear arms in the 
     context of militia service. Now the administration has 
     reversed this view. In a pair of appeals, Mr. Olson contends 
     that ``the Second Amendment more broadly protects the rights 
     of individuals, including persons who are not members of any 
     militia . . . to possess and bear their own firearms.'' Mr. 
     Ashcroft insists the department remains prepared to defend 
     all federal gun laws. Having given away its strongest 
     argument, however, it will be doing so with its hands tied 
     behind its back.
       Laws will now be defended not as presumptively valid but as 
     narrow exceptions to a broad constitutional right--one 
     subject, as Mr. Olson put it, only 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.'' This may sound like 
     a common-sense balancing act. But where exactly does the 
     Second Amendment, if it guarantees individual rights, permit 
     ``reasonable restrictions''? And where does its protection 
     exempt firearms that might be well suited for crime?
       Mr. Ashcroft has compared the gun ownership right with the 
     First Amendment's protection of speech--which can be limited 
     only in a fashion narrowly tailored to accomplish compelling 
     state interests. If that's the model, most federal gun laws 
     would sooner or later fall. After all, it would not be 
     constitutional to subject someone to a background check 
     before permitting him to worship or to make a political 
     speech. If gun ownership is truly a parallel right, why would 
     the Brady background check be constitutional?
       The Justice Department traditionally errs on the other 
     side--arguing for constitutional interpretations that 
     increase congressional flexibility and law enforcement policy 
     options. The great weight of judicial precedent holds that 
     there is no fundamental individual right to own a gun. 
     Staking out a contrary position may help ingratiate the Bush 
     administration to the gun lobby. But it greatly disserves the 
     interests of the United States.
                                  ____


                [From the New York Times, May 14, 2002]

                   An Ominous Reversal on Gun Rights

       Using a footnote in a set of Supreme Court briefs, Attorney 
     General John Ashcroft announced a radical shift last week in 
     six decades of government policy toward the rights of 
     Americans to own guns. Burying the change in fine print 
     cannot disguise the ominous implications for law enforcement 
     or Mr. Ashcroft's betrayal of his public duty.
       The footnote declares that, contrary to longstanding and 
     bipartisan interpretation of the Second Amendment, the 
     Constitution ``broadly protects the rights of individuals'' 
     to own firearms. This view and the accompanying legal 
     standard Mr. Ashcroft has suggested--equating gun ownership 
     with core free speech rights--could make it extremely 
     difficult for the government to regulate firearms, as it has 
     done for decades. That position comports with Mr. Ashcroft's 
     long-held personal opinion, which he expressed a year ago in 
     a letter to his close allies at the National Rifle 
     Association. But it is a position at odds with both history 
     and the Constitution's text. As the Supreme Court correctly 
     concluded in a 1939 decision that remains the key legal 
     precedent on the subject, the Second Amendment protects only 
     those rights that have ``some reasonable relationship to the 
     preservation of efficiency of a well-regulated militia.'' By 
     not viewing the amendment as a basic, individual right, this 
     decision left room for broad gun ownership regulation. The 
     footnote is also at odds with Mr. Ashcroft's pledge at his 
     confirmation hearing that his personal ideology would not 
     drive Justice Department legal policies.
       It is hard to take seriously Mr. Ashcroft's assertion that 
     the Bush administration remains committed to the vigorous 
     defense and enforcement of all federal gun laws. Mr. 
     Ashcroft, after all, is an official whose devotion to the gun 
     lobby extends to granting its request to immediately destroy 
     records of gun purchases amassed in the process of conducting 
     Brady law background checks even though they might be useful 
     for tracking weapons purchases by suspected terrorists.
       The immediate effect of the Bush Justice Department's 
     expansive reading of the Second Amendment is to undermine law 
     enforcement by calling into question valuable state and 
     federal gun restrictions on the books, and by handing 
     dangerous criminals a potent new weapon for challenging their 
     convictions. What it all adds up to is a gift to pro-gun 
     extremists, and a shabby deal for everyone else.
                                 ______