Justice Officials Defend People's Right To Guns
May 8, 2002
By LINDA GREENHOUSE
The New York Times

http://www.tampatrib.com/News/MGAAIOOPY0D.html

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

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.

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 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 NRA's chief lobbyist simply expressed Ashcroft's long-held personal opinion, or whether it marked a departure in government policy and possible challenge to Supreme Court precedent.

A Policy Change
The court's view has been 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, United States vs. Miller.

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

Ashcroft wrote all U.S. prosecutors, calling their attention to the decision in United States vs. 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 the department could "coordinate all briefing in those cases" and enforce federal law "in a manner that heeds the commands of the Constitution."

Individual Rights
In the briefs it filed at the Supreme Court after the close of business Monday, the solicitor general's office attached the Ashcroft letter to the U.S. attorney's 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... 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."

Although announcing the government's new position, the briefs do not ask the court to respond by taking action. In both cases, defendants charged with gun offenses raised Second Amendment defenses and appealed to the Supreme Court. One is the Emerson case, 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 vs. United States, an appeal by a man convicted of owning two machine guns in violation of the federal prohibition against owning those weapons.

Olson urged the Supreme Court to turn down both appeals. He said the application of the laws at issue in both cases reflected the kind of narrowly tailored restrictions by which that individual right could reasonably be limited. Consequently, there was no warrant for the court to take either case, the briefs said.

The justices will consider the cases this month. Ordinarily, the court would be unlikely to accept a case over the government's opposition.