U.S. Backs a Right to Bear Arms

The Justice Department has declared that the Constitution gives individuals the right to own a gun--a position that largely reverses six decades of federal policy and raises thorny questions about the legality of existing firearms restrictions.

In briefs filed late Monday with the U.S. Supreme Court, the Justice Department rejected the long-held interpretation that the 2nd Amendment guarantees gun rights only to militias, not to individuals.

The department’s stance elevates a long-simmering battle between the gun lobby and gun-control advocates to the high court, with Atty. Gen. John Ashcroft and the Justice Department voicing their strongest support yet for the gun lobby.

The National Rifle Assn. applauded the Justice Department’s stance, but scholars and gun-control advocates said they were alarmed because they believe the “radical” shift in position threatens to undermine a wide range of gun laws already on the books.

Current state and federal laws subjecting law-abiding citizens to background checks, regulating concealed weapons and banning the purchase of certain guns, such as assault rifles, could all be vulnerable, experts in gun law said.

Since the 1930s, the federal government and the courts have declared almost without exception that people have no constitutional right to own a gun and that the government can thus pass laws restricting who can own a gun and what types of weapons they can own.

But in a pair of pending appeals, the Bush administration asserted for the first time before the Supreme Court that it believes that legal reasoning is flawed.

“The current position of the United States ... is that the 2nd 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,” Solicitor General Theodore B. Olson wrote in a footnote to the briefs.

That right, Olson acknowledged, is subject to certain restrictions that allow the government to keep weapons out of the hands of “unfit persons” and to ban certain types of weapons often used by criminals.

Indeed, in one of the cases now pending before the Supreme Court, the department agreed that a Texas man who had a restraining order against him for domestic violence should not be allowed to have a gun.

The Justice Department urged the court to turn down both his appeal and that of a man convicted of violating federal law by owning two machine guns.

Ashcroft, a lifelong NRA member, set the stage for the debate last year when he wrote the group a letter saying that he “unequivocally” believes that the 2nd Amendment clearly protects the rights of individuals to keep and bear arms.

Ashcroft’s aides said initially that the letter reflected only Ashcroft’s “personal” opinion, but it became clear in subsequent actions, including a memo last November to federal prosecutors noting an appellate court’s ruling in the Texas gun case, that the department was moving toward a major shift in federal interpretation of the 2nd Amendment.

The Supreme Court would have to validate the Justice Department’s view of the 2nd Amendment for it to become the rule of law, at least at the federal level. Experts said they doubted the Supreme Court would move to overturn gun laws in either of the two pending cases.

Even so, the Justice Department’s official position offers powerful ammunition at the state and local levels to pro-gun rights forces who may seek to challenge severe gun restrictions and handgun bans in effect in Washington, D.C., and elsewhere, Franklin Zimring, a preeminent scholar on gun law at UC Berkeley’s Boalt Hall School of Law, said in an interview.

“If there’s an individual right for the average citizen, those types of regulations may very well be at risk from this sea change,” Zimring said.

Chris Cox, chief lobbyist for the NRA, said in an interview that while it is too early to tell what impact the Justice Department’s position will have on existing gun laws, “obviously we’re pleased by this. This is a very good start.”

“It should come as no surprise that this attorney general has followed through on his correct interpretation that the 2nd Amendment is an individual right, following through not only in word but in deed,” Cox said.

Justice Department officials downplayed the significance of the Supreme Court briefs.

“We intend to both enforce and defend existing gun laws,” said a department official who asked not to be identified.

“This is just us following through on what we said we were going to do a year ago. You can have an individual-rights view of the 2nd Amendment and still think there are certain restrictions that survive constitutional muster.”

Justice Department officials say that a series of “internal deliberations” in past decades support the rights of individual gun owners. But they have refused to publicly release documents on that point, and scholars say that, based on the public and judicial record, the Justice Department’s current position marks a sharp departure from past precedent.

“There’s never been any disagreement before this: The Department of Justice has been a sworn enemy of any individual right to bear arms over the course of the entire history of federal gun control legislation,” dating back to the 1930s, Zimring said. Mathew Nosanchuk, legislative counsel for the Violence Policy Center, a pro-gun control group in Washington, said he was deeply troubled by the department’s position.

“Here you have an attorney general flouting decades of precedent to embrace an expansive view of a heretofore unrecognized individual right to own a gun, and that could put many gun laws at risk,” he said.

Michael D. Barnes, president of the Brady Center to Prevent Gun Violence, also charged that the Justice Department’s position could undermine existing gun laws, making them more difficult to defend in court and making it easier for judges to declare them unconstitutional.

“The Justice Department now will invite federal judges to make their own judgments about whether the gun law at issue is ‘reasonable,’ ” Barnes predicted. He noted that in the Texas case, a federal district court judge “did not think it reasonable to bar [defendant] Timothy Joe Emerson from possessing guns, even though Emerson had threatened his wife and child with a pistol, owned an arsenal of weapons and had a domestic violence restraining order against him.

“This action is proof positive that the worst fears about Atty. Gen. Ashcroft have come true: His extreme ideology on guns has now become government policy,” Barnes said.