In a step that experts believe opens gun control laws to legal attack, Atty. Gen. John Ashcroft is changing the federal government's long-standing interpretation of the 2nd Amendment to assert that it covers individual gun-ownership rights.
A series of courts and most presidential administrations in recent times have stuck by a more narrow interpretation of the language, holding that it grants only a collective right to bear arms to militias.
Under that interpretation, the federal government can pass restrictions on who can own guns and what kind of guns they can own without running afoul of the Constitution.
But Ashcroft is asserting that the language actually extends those rights further, to "the people," a change that has broad implications for federal gun control policy.
Ashcroft expressed this view--one he had held as a senator--in a May letter to the National Rifle Assn.'s chief lobbyist. "The text and the original intent of the 2nd Amendment clearly protect the right of individuals to keep and bear arms," wrote Ashcroft, an NRA member.
The 2nd Amendment reads, "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."
Now Ashcroft has reportedly asked the Justice Department's Office of Legal Counsel to draft a legal statement in line with that view, which would make it official U.S. policy.
Ashcroft's spokeswoman, Mindy Tucker, said the attorney general is expressing department policy in the letter to the NRA but declined to say whether the Justice Department Office of Legal Counsel is drafting a formal opinion, as reported Wednesday by the Wall Street Journal.
But she also said the practical effect of Ashcroft's letter to the NRA is that it would carry the same weight as a formal legal opinion in stating department policy.
Tucker said the department isn't changing the government's position on what has become a closely watched case in Texas, where a judge threw out handgun charges against a man in a case involving his estranged wife, citing his 2nd Amendment rights. The Clinton Justice Department appealed, but the appeal hasn't been decided.
Carl Bogus, a professor and 2nd Amendment expert at Roger Williams School of Law in Rhode Island, said it is impossible to say which gun control statutes would be challenged in court under the new interpretation but said it could have sweeping effects.
"I'm not saying it would invalidate all gun control regulation. What I'm saying is that everything would be up in the air," Bogus said.
"Since the courts have always held the 2nd Amendment doesn't convey such a right [to individuals], you'd start on a clean slate defining what the scope or purpose of that right is, and nobody knows what would be written on that slate."
Gun control advocates fear a broad assault.
Rep. Carolyn McCarthy (D-N.Y.), who came to Congress after her husband was killed in the 1993 Long Island Rail Road shootings, said Ashcroft's move looks like a payback to the NRA and other gun control opponents who helped President Bush and other Republicans get elected.
McCarthy recalled that a top NRA official once bragged that the NRA would work out of a Bush White House.
"Not only do they have an office in the White House, they're working out of Justice," she said. "This is one more way, as far as I'm concerned, that they are trying to twist what the real debate is about: . . . What can we do to keep the guns out of the hands of those who shouldn't have them."