Scores of criminal defendants around the nation have asked federal courts to
dismiss gun charges against them based on the Justice Department's recently revised
position on the scope of the Second Amendment.
The new position, that the Constitution broadly protects the rights of individuals
to own guns, replaced the view, endorsed by the great majority of courts, that
the amendment protects a collective right of the states to maintain militias.
While the challenges have been rejected by trial court judges, based largely
on appeals court precedent, supporters and opponents of broad antigun laws say
the arguments have forced the Justice Department to take contradictory stances.
Andrew L. Frey, a deputy solicitor general in the Justice Department from
1973 to 1986, said the department's new position would make life difficult for
prosecutors and might give criminal defendants unforeseen opportunities.
"Is this a Pandora's box, which, when once opened, cannot be controlled?"
asked Mr. Frey, who opposed the new position in a letter to Justice Department
officials on behalf of a gun-control group.
A spokeswoman for the Justice Department, Monica Goodling, said the department
was committed to prosecuting gun crimes.
"The department believes it can defend the constitutionality of all existing
federal firearms laws while working to take guns out of the hands of those who
abuse them," Ms. Goodling said.
In briefs filed with the Supreme Court in May, department lawyers said laws
that restrict gun ownership by unfit people or restrict ownership of guns "particularly
suited for criminal misuse" are appropriate.
The department faces the clearest contradictions of its stance in Washington,
which has an essentially complete ban on handguns. The city's government is supervised
by Congress, and its local crimes are prosecuted by the Justice Department.
Ms. Goodling was more guarded in discussing the District of Columbia's gun
"The department can defend its criminal prosecutions of the firearms laws
in D.C., and is doing so," she said. The difference in wording suggests that the
department is unwilling to endorse the constitutionality of Washington's gun law
in all circumstances.
People on both sides of the gun control debate find fault with the department.
"The Justice Department has created a very dangerous situation that is endangering
public safety and forcing Justice Department prosecutors to litigate with one
hand tied behind their backs," said Mathew S. Nosanchuk, litigation director of
the Violence Policy Center, a gun control group in Washington. "Criminals are
using the department's own Second Amendment language to challenge the gun laws."
On the other hand, Robert A. Levy of the Cato Institute, a libertarian research
group in Washington, was critical of Attorney General John Ashcroft for announcing
the new position in briefs to the Supreme Court in May but not applying it in
"It's bizarre for Ashcroft to go out of his way to assert that the Second
Amendment is about an individual right when he didn't have to say anything," Mr.
Levy said. "When he has the chance to make the assertion in a case where it really
matters, he doesn't. It's puzzling."
Prosecutors opposing the new Second Amendment challenges have filed narrow
and cryptic responses. In a brief filed in the District of Columbia Court of Appeals,
for instance, the Justice Department noted that its position on the Second Amendment
was inconsistent with that of the court, which has held that the amendment protects
a collective right. Still, it continued, "although the question of the proper
interpretation of the Second Amendment is significant, this case simply does not
present that question in a manner suitable for resolution."
In other briefs, the government has argued that a particular defendant or
weapon fits within its own announced exceptions. According to a brief filed in
San Francisco, "The government does not concede that the Second Amendment creates
a fundamental individual right for felons to bear arms, or for anyone to bear
arms" like the machine guns at issue in that case.
The Supreme Court last addressed the meaning of the Second Amendment in 1939,
in a decision that lawyers on both sides of the issue say supports their views.
That disagreement about Supreme Court precedent, along with a federal appeals
court decision last year adopting the individual-rights view, means it is an open
question how other appeals courts will view the new challenges.
In footnotes in two filings with the Supreme Court in May, the government
said the Second Amendment protected the rights of individuals "to possess and
bear their own firearms, subject to reasonable restrictions designed to prevent
possession by unfit persons or to restrict the possessions of types of firearms
that are particularly suited to criminal misuse."
Defendants have said this position amounts to a recognition that the right
to bear arms is as fundamental as the right to free speech and so requires courts
to be extremely skeptical of government efforts to regulate guns. That is a position
that has long been held by groups opposing gun control.
Public defenders say they are engaged in a cat-and-mouse game with the government,
with the goal of forcing it to articulate its true position.
The government's court filings, said John Paul Reichmuth, a federal public
defender in Oakland, Calif., are "evasive and anemic to the point of unconsciousness."
But, Mr. Reichmuth said, "at some point in some argument where a real case is
going on, they won't be able to fall back on their procedural arguments and they'll
have to state what the content of the right is."
An appeal in the most challenging case, that of the District of Columbia's
gun law, has already reached the local appellate court, the District of Columbia
Court of Appeals. It was filed by Bashuan Pearson, who was charged with felony
weapons possession. In court papers, Mr. Pearson said that he had a license to
carry the pistol in question in Maryland and that he had a clean criminal record.
Mr. Pearson complained to the appeals court that in its own court papers the
Justice Department "refuses to reveal whether, under the current view of the attorney
general concerning the meaning of the Second Amendment, the District's gun laws
are facially unconstitutional."
Mr. Pearson asked for a full-court hearing. Only the full court can overrule
an earlier precedent of the court, which held that the Second Amendment protects
a collective right.
Apparently not satisfied that the Justice Department will adequately defend
the local law, the District of Columbia's lawyers have asked to intervene in the
James C. McKay Jr., a lawyer for Washington, said Justice Department prosecutors
must reconcile their day-to-day prosecutorial practices with the department's
new policy. "There is a conflict between their very hard approach to gun possession
and their position that there is a Second Amendment right to carry a gun," Mr.
The government is allowed to take contrary legal positions in different settings,
legal experts said. "The argument that you're being hypocritical is not a legally
sufficient argument," said Akhil Reed Amar, a law professor at Yale.
But there are practical difficulties in reconciling warring positions in related
litigations, said Michael Dorf, a law professor at Columbia.
"Ashcroft is trying to please two different constituencies," Mr. Dorf said.
"On the one hand, there is the gun lobby, which is very pleased with his decision.
On the other hand, he has to consider federal prosecutors and probably the general
public as well."
Mr. Frey, the former deputy solicitor general, said he hoped the question
would remain academic.
"I hope the upshot will be that the attorney general's new position will be
rejected and recede into the mists of history," he said, "or that it will turn
out to be contentless in that there will be no cases to which it will apply."
Copyright 2002 The New York Times Company