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http://www.kansascity.com/mld/kansascitystar/news/3245026.htm
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Posted on Sun, May. 12, 2002 ©story:PUB_DESC
New government stance on gun rights stirs cheers, fears

The Kansas City Star p. A4

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.


To reach Rick Montgomery, national correspondent, call (816) 234-4410 or send e-mail to rmontgomery@kcstar.com.