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U.S., in a Shift, Tells Justices Citizens Have a Right to Guns
Published on Wednesday, May 8, 2002 by the New York Times
U.S., in a Shift, Tells Justices Citizens Have a Right to Guns
by Linda Greenhouse
 

WASHINGTON Reversing decades of official government policy on the meaning of the Second Amendment, the Justice Department told the Supreme Court for the first time late Monday that the Constitution "broadly protects the rights of individuals" to own firearms.


The Justice Department "has shown its willingness to throw red meat to the gun lobby and put its political agenda over its institutional interests and obligations.

Mathew S. Nosanchuk
litigation director of the Violence Policy Center
The position, expressed in a footnote in each of two briefs filed by Solicitor General Theodore B. Olson, incorporated the view that Attorney General John Ashcroft expressed a year ago in a letter to the National Rifle Association. Mr. Ashcroft said that in contrast to the view that the amendment protected only a collective right of the states to organize and maintain militias, he "unequivocally" believed that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."

It was not clear at the time whether the letter to the rifle association's chief lobbyist simply expressed Mr. Ashcroft's long-held personal opinion, or whether it marked a departure in government policy and possible challenge to Supreme Court precedent. The court's view has been that the the Second Amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia," as the court put it in its last word on the subject, a 1939 decision called United States v. Miller.

But it became evident last fall that Mr. Ashcroft did intend to set new government policy. In October, the federal appeals court in New Orleans, saying it did not find the Miller decision persuasive, declared that "the Second Amendment does protect individual rights," rights that nonetheless could be subject to "limited, narrowly tailored specific exceptions."

Mr. Ashcroft wrote all federal prosecutors, calling their attention to the decision in United States v. Emerson and informing them that "in my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment."

He told the prosecutors to inform the department's criminal division of any case that raised a Second Amendment question so that the department could "coordinate all briefing in those cases" and enforce federal law "in a manner that heeds the commands of the Constitution."

In the briefs it filed at the Supreme Court after the close of business on Monday, the solicitor general's office attached the Ashcroft letter to the United States attorneys and included the following footnote to explain the new government position:

"In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject 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."

While announcing the government's new position, the briefs do not ask the court to respond by taking any action itself. In both cases, defendants charged with gun offenses raised Second Amendment defenses and appealed to the Supreme Court. One is the Emerson case, now called Emerson v. United States, No. 01-8780, an appeal by a doctor who was charged with violating a federal law that makes it a crime for someone to own a gun while under a domestic violence restraining order. The other is Haney v. United States, No. 01-8272, an appeal by a man convicted of owning two machine guns in violation of the federal prohibition against owning those weapons.

Solicitor General Olson urged the court to reject both appeals. He said that even accepting an individual right to bear arms, the application of the laws at issue in both cases reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited. Consequently, there was no warrant for the court to take either case, the briefs said.

Mr. Olson declined today to discuss the cases further. "The briefs speak for themselves," he said.

The justices will consider the cases this month. Ordinarily, the court would be unlikely to accept a case over the government's opposition. The Emerson case is a particularly poor candidate for review under the court's ordinary standards because the decision by the United States Court of Appeals for the Fifth Circuit was not a final judgment. Rather, it reinstated an indictment that a federal district court had dismissed, meaning that the defendant, Timothy J. Emerson, now faces a trial at which he may be acquitted, making any appeal moot.

Still, the court may well consider these to be something other than ordinary cases. One justice, Clarence Thomas, invited a Second Amendment case five years ago in a separate concurring opinion to the court's decision that invalidated part of the Brady gun-control law. In that case, Printz v. United States, the court found that the law violated principles of state sovereignty and did not address the Second Amendment.

In his separate opinion, Justice Thomas noted that the parties had not raised a Second Amendment question but that "perhaps, at some future date, this court will have the opportunity" to consider the meaning of the amendment.

Mathew S. Nosanchuk, litigation director of the Violence Policy Center, a gun-control group here, said today that even if the briefs had no immediate impact at the court, they would prove highly useful to those opposed to gun control.

The briefs would be cited as "the authoritative statement on the government's position," he said, adding that the Justice Department "has shown its willingness to throw red meat to the gun lobby and put its political agenda over its institutional interests and obligations."

The National Rifle Association, which last summer featured a picture of Mr. Ashcroft on the cover of its magazine and called him "a breath of fresh air to freedom-loving gun owners," lauded the Justice Department's position today. "This view is shared by courts and by notable legal scholars alike," said Chris Cox, chief N.R.A. lobbyist. "The N.R.A. has always felt that the Second Amendment is unequivocal in its intent that the right to bear arms is an individual right."

Andrew L. Frey, a former deputy solicitor general who handled the government's criminal cases in the Supreme Court from 1973 until 1986, was sharply critical of the briefs.

"This has been the government's position for more than 60 years," Mr. Frey said in an interview. "People who happen to be in office temporarily shouldn't use the office to promote their personal views."

Mr. Frey, now a partner at the law firm Mayer, Brown, Rowe & Maw, sent a 15-page letter on behalf of the Violence Policy Center to Mr. Olson, urging him to adhere to the government's original position in the cases.

Copyright 2002 The New York Times Company

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