2 Challenge Gun Cases, Citing Bush Policy

[Lucky Green]

Ed wrote:
> At 07:17 PM 6/2/02, Lucky Green wrote:
> >In United States v. Cruikshank, 92 U.S. 542 (1876), the 
> Supreme Court 
> >held that:
> >
> >...
> >
> >"The right to bear arms is not granted by the Constitution; 
> neither is 
> >it in any manner dependent upon that instrument for its 
> existence. The 
> >second amendment means no more than that it shall not be 
> infringed by 
> >Congress, and has no other effect than to restrict the powers of the 
> >national government."
> >
> >.... the 2nd Amendment solely
> >constrains Congress from infringing upon the right to keep and bear 
> >arms while leaving the Executive free to infringe upon this 
> right, or 
> >deny its exercise entirely, at will.
> 
> The Executive is part of the "national government" that 
> Cruikshank says is 
> restricted by the 2nd amendment, yes?

One might read the decision this way, if the Supreme Court had not
specifically written that "The second amendment means no more than that
it shall not be infringed by Congress".

The national government is simply mentioned in the decision because the
question at bar was if the 2nd applied to the States via the 14th. Under
Cruikshank, the Supreme Court ruled that it does not. The Court held
that the 2nd only constrained the national government, not the States,
and of the national government, only Congress.

[...]
> >,,,,ten years later in Presser v.
> >Illinois, 116 U.S. 252 (1886).
> >
> >"The provision in the Second Amendment to the Constitution, 
> that 'the 
> >right of the people to keep and bear arms shall not be 
> infringed,' is a 
> >limitation only on the power of Congress and the national 
> government, 
> >and not of the States.
> 
> Again, Presser says the 2nd amendment restricts the president 
> from such an 
> executive order, yes?

Under Presser, such an executive order by the President would likely be
considered unconstitutional.

FYI, the Supreme Court has since revisited, and overturned itself, in
just about every aspect of Cruikshank, *except* that the 14th does not
extend the 2nd to the States. Which was the issue that Steve Schear
inquired about and to which I responded with my post.

--Lucky