At a shop called Great Guns, you might assume the
reaction to the Justice Department's new take on the Second
Amendment would be "Great!"
Rather, owner Kathy Peisert said her customers in Kearney
regard their individual right to own firearms a no-brainer,
even though the federal government is just now officially
advocating that right.
"It's more like, well, duh! It's about time they
(the Department of Justice) came around," said Peisert.
"We'll wait and see what happens."
At the behest of Attorney General John Ashcroft, the
department in Supreme Court briefs last week reversed its
decades-long stance on the Second Amendment, saying it
guarantees an "individual right" of Americans to
possess guns.
Previous administrations, citing court rulings dating to
the 1930s, said the amendment to the Constitution protected
only the "collective right" of states to form
militias as a defense against federal tyranny.
The upshot? Like Peisert, legal experts say they'll wait
and see.
The government's reinterpretation has gun rights
advocates claiming at least a moral victory, and gun control
groups worrying about the future of federal firearms laws.
"Every federal gun law is now on the table,"
said Jonathan Lowy, senior attorney for the Brady Center for
Gun Violence.
"It puts federal prosecutors in a very difficult
position. They're being told to adopt and adhere to
Ashcroft's view of the Second Amendment, which is, not
coincidentally, shared by the NRA."
The policy shift was hinted at last May, when the
National Rifle Association convened its annual meeting in
Kansas City. Ashcroft, a longtime champion of conservative
groups, wrote to the association at the time that he
personally embraced the "individual right" view.
Some scholars expect no immediate difference in the way
gun restrictions are enforced.
They note that federal prosecutors remain obliged to
uphold the laws, that judges will still make their own
decisions, and that the U.S. Supreme Court -- which tends to
avoid Second Amendment cases -- has yet to affirm the
"individual right" argument.
"There's plenty of fudge factor here," said
Stephen Halbrook, a Second Amendment attorney in Fairfax,
Va.
Still, if Halbrook had an otherwise law-abiding client
convicted of possessing a federally banned assault weapon,
"I'd be beating down the doors" to appeal, he
said.
The Second 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."
The Justice Department's revised policy, outlined in the
footnotes of court briefs filed Monday, underscores
"the right of the people," but does not suggest
that right is absolute.
Solicitor General Theodore Olson's brief stipulated that
gun rights are "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."
As it stands, "unfit persons" include felons.
On Thursday, a Kansas City man was sentenced to nearly 22
years in prison without parole for being a felon in
possession of a firearm. Hakeem Malik, 22, had carried two
handguns into Westport.
Malik's sentence was the 200th delivered in Kansas City
as part of "Project Ceasefire," launched in 1999,
said Don Ledford, spokesman for the U.S. attorney's office
in Missouri's Western District.
"That's the law," Ledford said. "The
Second Amendment does not apply to felons."
But Halbrook said the Justice Department's broader stance
could make room for "white-collar felons" to claim
a constitutional right to own guns. He said municipal bans
on handguns could also be challenged.
Such actions would raise a dilemma for U.S. prosecutors,
said Lowy of the Brady Center.
"Ashcroft is ordering them to tie their hands behind
their backs and ignore their best legal arguments (against)
criminal defendants who want to get off the hook on
gun-related offenses," Lowy said. "If defendants
have some kind of constitutional claim, they'll raise
it."
Until recently, courts repeatedly cited a 1939 Supreme
Court ruling broadly interpreted as a rejection of the
Ashcroft view. In upholding a ban on sawed-off shotguns, the
high court held that framers of the Bill of Rights intended
only to sanctify the states' need to organize a common
defense.
Last year, however, a federal appeals court in New
Orleans ruled that "the Second Amendment does
protect individual rights."
The decision applied to the case of Timothy Joe Emerson,
a Texas physician indicted after he brandished a pistol in
front of his estranged wife and their daughter. Although the
appeals court sided with individual rights, it did not side
with Emerson, as the court believed he posed a potentially
violent threat.
Because no law was overturned, experts on both sides of
the firearm fence expect the Supreme Court to decline to
take the Emerson case.
And the legal meaning of the Second Amendment will remain
a moving target.