Washington Post
The U.S. solicitor general has a duty to defend acts of Congress before the Supreme Court. This week, Solicitor General Ted Olson -- and by extension his bosses, Attorney General John Ashcroft and President Bush -- took a position regarding guns that will undermine that mission.
Historically, the Justice Department has adopted a narrow reading of the Constitution's Second Amendment, which states that "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." Along with nearly all courts in the past century, it has read that as protecting only the public's collective right to bear arms in the context of militia service. Now the administration has reversed this view. In a pair of appeals, Mr. Olson contends that "the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia ... to possess and bear their own firearms." Mr. Ashcroft insists the department remains prepared to defend all federal gun laws. Having given away its strongest argument, however, it will be doing so with its hands tied behind its back. ...
Mr. Ashcroft has compared the gun ownership right with the First Amendment's protection of speech -- which can be limited only in a fashion narrowly tailored to accomplish compelling state interests. If that's the model, most federal gun laws would sooner or later fall. After all, it would not be constitutional to subject someone to a background check before permitting him to worship or to make a political speech. If gun ownership is truly a parallel right, why would the Brady background check be constitutional?
The Justice Department traditionally errs on the other side -- arguing for constitutional interpretations that increase congressional flexibility and law enforcement policy options. The great weight of judicial precedent holds that there is no fundamental individual right to own a gun. Staking out a contrary position may help ingratiate the Bush administration to the gun lobby. But it greatly disserves the interests of the United States.
Washington Times
This week, Solicitor General Theordore B. Olson went before the U.S. Supreme Court and began making the federal government's case that the Second Amendment does, in fact, protect an individual right to keep and bear arms. "The current position of the United States," Mr. Olson wrote in briefs filed with the court, "is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any state militia or engaged in active military service or training, to possess and bear their own firearms."
Many people likely do not realize that the linchpin of gun-control efforts for decades has been the exact opposite of Mr. Olson's position -- that the Second Amendment guarantees only the corporate right of "the militia," not private individuals unconnected to the armed forces, to keep and bear arms. Indeed, the government itself has taken that very position for years as well.
It is a patently ridiculous argument, however, that the Second Amendment does not protect an individual right to keep and bear arms. To accept it, one must take the position that the Founding Fathers, who led a war against an oppressive government, endorsed disarming every citizen who wasn't somehow connected to "the militia," or another branch of the armed services -- obvious historical evidence to the contrary notwithstanding. Most colonial Americans, as any school child knows, possessed firearms openly, even though most had little or nothing to do with any formal branch of the armed services or "militia." And why bother writing a Second Amendment guarantee to protect a government right?
In point of fact, the Bill of Rights was written explicitly to protect individual rights against government encroachment. It is a near-certainty that the Constitution -- which spells out the authority of the federal government in relation to the states and to individuals -- would never have been ratified absent the Bill of Rights. And had the Founding Fathers attempted to disarm the average citizen, it is equally certain there would have been another revolution in short order. ...
Mr. Olson's -- the federal government's -- refreshing return to an honest reading of the Second Amendment is to be cheered.
Dallas Morning News
Administration officials dismiss it as a minor change in established policy, but you would never know it from the outcry on both sides of the gun debate to a new position articulated by the Justice Department on the old question of whose rights the Second Amendment protects. The change came in -- of all places -- a footnote in a pair of briefs filed at the Supreme Court late Monday by Solicitor General Theodore Olson.
It has been over 60 years since the high court put forth its view on the issue, and it is that view at which the administration is taking aim. In the 1939 case, United States v. Miller, the court held that the "right to bear arms" was best interpreted as related to the right of states to maintain militias. For six decades, the Justice Department has agreed.
Not anymore. The Olson briefs insist the real and clear intent of the Second Amendment was to protect the rights of individuals to keep and bear arms. That position mirrors the view expressed by Attorney General John Ashcroft in a letter last year to the National Rifle Association.
That was all it took to restart the rhetorical gunfire in this, one of the oldest and most emotional debates in American history. Gun control groups blasted the new position as "perverse" and claimed the change would exacerbate the proliferation of firearms. Meanwhile, gun enthusiasts praised the reversal, saying that it was more in line with what the framers originally had in mind. ...
What is certain for now is that the administration -- in making the change so discreetly, in footnotes in briefs filed after the close of business -- has created the impression that it is either not comfortable with the new position or not confident in its ability to answer questions that already have surfaced about whether the change can be attributed to Mr. Ashcroft's supportive relationship with the gun lobby.
Those types of questions are a distraction that the Justice Department can live without. Regardless of the reasonableness of its position, one hopes that the next time the administration reverses 60-year-old policy on a contentious issue it does so in the light of day.
Los Angeles Times
So now Attorney General John Ashcroft thinks he gets to rewrite the Constitution to reflect his personal opinions. His pronouncement this week that the 2nd Amendment guarantees individuals the right to own guns, despite six decades of federal policy and U.S. Supreme Court decisions to the contrary, is another audacious move by a man who mistakenly thinks his job is to make, not enforce, the law.
Ashcroft's declaration came in footnotes in two briefs the Justice Department filed in pending appeals. In them, he rejects the long-held interpretation that the Second Amendment guarantees gun rights only to militias, not individuals.
He declares, "The current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals ... who are not members of any militia ... 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." Since the 1930s, the federal government and the courts, including the Supreme Court, have spoken with one voice in declaring that people have no constitutional right to own a gun and that government can pass laws restricting gun possession. ...
The attorney general is wrong in his characterization of federal law, which has historically elevated government's right to regulate weapons over individual rights. And as an appointed official, he's way out of line in insisting that his own views prevail over those of the elected representatives charged with writing laws and judges whose job it is to interpret them. ...
Ashcroft's tutorial on the Second Amendment is only his latest attempt to bully the nation into adopting his personal beliefs no matter what the law and court precedents say ... the federal courts should take note of Ashcroft's reckless and revisionist view of the Second Amendment -- and explicitly reject it.
Seattle Times
Attorney General John Ashcroft says that the Second Amendment gives Americans a constitutional right to keep and bear arms. Does it? Here is what it says:
"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."
Gun-shy Americans may wish it said, "The powers of the States to muster a well-regulated Militia shall not be infringed." But James Madison's words were the "right of the people."
When Madison wrote "right" and "people," he meant individuals. That's what those terms mean in the Bill of Rights and elsewhere. When the Constitution grants authority to the states, it says "powers of the States." ...
Let us admit that the Second Amendment says what it says, and think whether we can live with it.
The amendment was adopted in 1791, when the arms people owned were flintlock pistols and muskets. The right cannot be limited to flintlocks any more than free speech can be limited to paper and ink. But if we interpret the Second Amendment as expansively as the First, then Americans may have an individual right to own machine guns -- or any arms they can "bear," such as, perhaps, a Stinger missile. That is not tolerable. The amendment needs to be interpreted in a way that leads to a reasonable result. ...
Let us be clear on this: If a new interpretation means that any individual can buy a handgun and walk away with it, or may own a machine gun, the Second Amendment cannot stand as it is; that would be too broad for a modern society.
If Ashcroft's statement that the Second Amendment "broadly protects the rights of individuals" means individuals verified to be of adult age and clean records; if "arms" means non-automatic pistols, rifles and shotguns -- weapons broadly comparable to those available in 1791; and if governments are allowed reasonable regulations for the safety of the public, the Second Amendment may take its place among the other rights of individuals.
(Compiled by United Press International)
