2d Amendment interpretation sparks debate

By Lyle Denniston, Globe Correspondent, 8/18/2002

WASHINGTON - Bashaun Pearson is not the kind of fellow likely to gain the sympathy of Attorney General John D. Ashcroft, and he hasn't. But Pearson, like a rising number of criminal suspects across the country, is doing what he can to make Ashcroft one of his defenders.

Police in Washington, D.C., arrested Pearson early one morning last June as he was carrying a 9mm pistol. Police said he was high on the drug PCP. His gun is licensed in neighboring Maryland, but not in Washington, so he faces a charge of violating a District of Columbia gun-control law that is one of the nation's strictest.

Now, after Ashcroft's controversial declaration that Americans have a constitutional right to possess firearms, Pearson's lawyers want the courts to spell out clearly what power national, state, and local governments have to enforce gun-control laws.

No such law has yet been struck down under Ashcroft's theory, but Pearson and others see that as nearly inevitable, assuming that at least some judges will adopt the attorney general's view of the Constitution's Second Amendment.

''This would threaten virtually every state and federal law regulating the ownership and use of firearms,'' said Attorney General Joseph T. Curran Jr. of Maryland, who like many legal scholars has urged Ashcroft to reconsider.

''The attorney general acted without regard to existing laws and without any warning,'' Curran said in an interview. ''It's awkward, and it sends the wrong message.''

The Second Amendment speaks of a ''right to keep and bear arms.'' For the past year, Justice Department lawyers have been laying before courts across the country Ashcroft's view that there is a right to possess guns for personal use, not just when individuals are members of a state militia like the National Guard.

That argument diverges sharply from a longstanding view, embraced by the Supreme Court, most other courts, and a long string of previous US attorneys general. The traditional view has been that the Second Amendment right to bear arms is reserved for members of an organized militia.

But Ashcroft has picked up notable support for his interpretation. Eighteen state attorneys general wrote to him last month to say they agreed with his assessment, maintaining that ''there is an increasing amount of data available to support the claim that private gun ownership deters crime.'' Attorney General Thomas F. Reilly of Massachusetts did not sign the letter.

Defense lawyers in gun crime cases say that Ashcroft's switch puts their clients into a kind of legal box: While saying he accepts a personal right to possess guns, the attorney general has pledged to defend the constitutionality of ''all existing federal firearms laws'' and has vowed to enforce them energetically.

Most courts, believing that the Supreme Court had settled the Second Amendment question in favor of the traditional view, have routinely rejected attempts to reopen it. But, now that the nation's senior law-enforcement official has argued otherwise, defense lawyers are aiming to put a solid test case before the Supreme Court.

That effort has thus far been frustrated, ironically, by the Justice Department, which has yet to argue in court that a prosecution should not go forward because of the Second Amendment.

Instead, the department has said repeatedly that the individual right to possess guns is qualified by ''reasonable restrictions.'' And, so far, the department has not found any gun-control law to be unreasonable.

In case after case, US attorneys have recited the individual rights theory in court, but then gone on to say that it simply is unavailable to a given individual or does not apply to a given case.

The apparent contradiction irks criminal defense lawyers hoping to use Ashcroft's Second Amendment interpretation to help their clients.

But they are not the only ones who are troubled. Two gun rights groups, one called Citizens of America and another called Keep and Bear Arms, wrote to Ashcroft last May, asking: ''Are your words simply intended to galvanize gun owner support for President Bush and the Republicans without them doing anything to actually deserve it, while they implement, enforce, and enact encroachments they should be repealing?''

Bush and Ashcroft ''are supposed to be `pro-gun rights,''' the two groups wrote. ''They are saying things they believe gun owners want to hear, the things they believe will win our votes. But they are not doing anything to follow up on these mere words.''

The Justice Department rejects the criticism that it is trying to have it both ways. ''You can believe that the Constitution protects a right and still believe that there are exceptions for the good of society,'' said spokeswoman Monica Goodling.

''The department remains very committed to prosecuting under existing firearms laws, to keep guns out of the hands of people who should not have them,'' Goodling said. ''The Second Amendment is not any different from any other constitutional amendment: It includes some things and not others.''

She said the department is keeping no statistics on how often defense lawyers are raising the Ashcroft Second Amendment defense in court. Most of the cases in which the issue comes up, she said, are being handled at the local level by individual US attorneys.

When Ashcroft's view is put forth by defense lawyers, however, prosecutors are replying in briefs modeled after one put together at headquarters, resisting Second Amendment claims by individuals in all cases that involve gun charges against convicted felons or others who are ineligible to possess guns under federal law. But the department is also routinely opposing Second Amendment claims by individuals who have never been in trouble with the law.

A gun-control advocacy group, the Washington-based Violence Policy Center, is trying to track how frequently the Second Amendment is being advanced by criminal defense teams, but says the Justice Department has refused to cooperate.

That group's litigation director, Mathew S. Nosanchuk, is convinced that the Ashcroft view complicates the prosecution of gun charges, even if the theory has not yet helped suspects.

''The Ashcroft Justice Department,'' he said, ''has betrayed its law-enforcement responsibilities by strengthening the legal position of those charged with committing serious crimes. These are the real-life consequences of a cynical, politically motivated action.''

Whatever the practical impact of Ashcroft's declaration, there is no doubt that his view is being grasped eagerly by criminal defense lawyers.

''People being prosecuted for what the attorney general has deemed protected conduct have begun filing motions seeking to determine how such prosecutions can be reconciled with the stated position of the United States with regard to the Second Amendment,'' Pearson's lawyers said in a recently filed emergency appeal in the capital city's highest local court, the D.C. Court of Appeals. Pearson's appeal asks the court to reconsider, relying on Ashcroft; until now, the court has rejected the individual right claim.

More than 30 such challenges have been filed in local courts in Washington. A similar flurry of Second Amendment pleas, also numbering about 30, has emerged in Richmond, Va., the home of a five-year-old experiment called ''Project Exile,'' involving a rigorous enforcement of gun laws in an attempt to reduce street and gang violence.

This story ran on page A4 of the Boston Globe on 8/18/2002.
© Copyright 2002 Globe Newspaper Company.