Bush Lawyers Target
Gun Control's Legal Rationale
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
January 7, 2005; Page A4
Readying for a constitutional showdown over gun control, the Bush administration has issued a 109-page memorandum aiming to prove that the Second Amendment grants individuals nearly unrestricted access to firearms.
The memorandum, requested by Attorney General John Ashcroft, was completed in August but made public only last month, when the Justice Department's Office of Legal Counsel posted on its Web site several opinions setting forth positions on various legal issues. Reaching deep into English legal history and the practice of the British colonies prior to the American Revolution, the memorandum represents the administration's latest legal salvo to overturn judicial interpretations that have prevailed since the Supreme Court last spoke on the Second Amendment, in 1939. Although scholars long have noted the ambiguity of the 27-word amendment, courts generally have interpreted the right to "keep and bear arms" as applying not to individuals but rather to the "well-regulated militia" maintained by each state.
Reversing previous Justice Department policy, Mr. Ashcroft has declared that the Second Amendment confers a broad right of gun ownership, comparable with the First Amendment's grant of freedom of speech and religion. In November 2001, he sent federal prosecutors a memorandum endorsing a rare federal-court opinion, issued the previous month by the Fifth U.S. Circuit Court of Appeals in New Orleans, that found an individual has the right to gun ownership. President Bush adopted that view as well, saying that "the Constitution gives people a personal right to bear arms," and doesn't merely protect "the rights of state militias," in an interview published days before last year's election in National Rifle Association magazines.
The new Justice Department memorandum acknowledges that "the question of who possess the right secured by the Second Amendment remains open and unsettled in the courts and among scholars," but goes on to declare that "extensive reasons" support seeing it as an individual right, while there is "no persuasive basis" for taking another view. The Supreme Court's 1939 opinion, upholding a federal law requiring registration of sawed-off shotguns, found that the amendment didn't guarantee "the right to keep and bear such an instrument," because it had no "reasonable relationship to the preservation or efficiency of a well-regulated militia." The court didn't go further to say what firearms rights the Constitution did guarantee, but federal courts subsequently have dismissed challenges to gun-control laws on Second Amendment grounds.
In 2001, the Fifth Circuit upheld a federal law limiting firearms possession by people under judicial restraining orders, but took the occasion to opine that the Second Amendment did confer a general individual right that wasn't implicated by the federal statute. A year later, the Ninth Circuit, based in San Francisco, explicitly found to the contrary, upholding a California law restricting assault weapons in part because "the Second Amendment does not confer an individual right to own or possess arms." Both courts issued lengthy opinions to justify their constitutional views, but the Supreme Court declined to hear appeals from either decision, leaving both on the books in their respective circuits. The Justice Department's new memorandum anticipates that the high court may soon accept a case to resolve the split.
The Second Amendment 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."
The memo's authors, Justice Department lawyers Steven Bradbury, Howard Nielson Jr. and C. Kevin Marshall, dissect the amendment's language, arguing that under 18th century legal conventions, the clause concerning "a well-regulated militia" was "prefatory language" without binding force. "Thus, the amendment's declaratory preface could not overcome the unambiguously individual 'right of the people to keep and bear arms' conferred by the operative text," they write.
They write that the drafters of the amendment envisioned a militia consisting of "all able-bodied white men" in a state, and suggest that they would be expected to keep arms not only if called up by the government but also on their own initiative, perhaps to fight rulers who threatened their liberties.
Robert Post, a constitutional-law professor at Yale Law School, said the new memorandum disregarded legal scholarship that conflicted with the administration's gun-rights views. "This is a Justice Department with a blatantly political agenda which sees its task as translating right-wing ideology into proposed constitutional law," he said.