Impact of altered gun policy uncertain

Frank J. Murray
THE WASHINGTON TIMES

Published 5/9/2002

     Both sides in the long battle over the constitutional right to gun ownership fretted yesterday about how a new government policy disclosed in passing will play out in the courts.
     Solicitor General Theodore Olson's typewritten footnotes in responses to two so-called "pauper appeals" abandon the government's militia-only view of gun ownership and say the Second Amendment provides individuals with the right to own guns.
     In separate interviews, Fairfax lawyer Stephen P. Halbrook, who represents the National Rifle Association, and New York lawyer Andrew L. Frey, who works for the anti-gun Violence Policy Center, which tried to block the policy, were unable to name a case likely to be affected by the policy change the Justice Department made public Tuesday.
     "The current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms," Mr. Olson wrote.
     Nelson Lund, a professor at George Mason University law school and advocate of the government's new policy, said: "The decision seems largely symbolic. We don't have any way of knowing whether it's going to have any practical effect at all. If so, it will be quite some time before we see an effect."
     Mr. Olson's appeals put the Bush administration at odds with Supreme Court doctrine since 1939.
     "No court is going to be persuaded because the government says it's their policy. It's what they've got to back it up that matters," Mr. Halbrook said, bemoaning the government's unwillingness to draw battle lines on whether Texas Dr. Timothy Joe Emerson was wrongly convicted of possessing a gun while under a domestic-relations restraining order.
     "There's such a missed potential here," he said. "It is going to require other circuits to face the music on the Second Amendment."
     Attorney General John Ashcroft and Mr. Olson let their brief speak for them, and Justice Department public-affairs director Barbara Comstock said the policy change reflects Mr. Ashcroft's commitment in a Nov. 9 letter to U.S. attorneys to enforce federal firearms law.
     "The department has a solemn obligation both to enforce federal laws and to respect the constitutional rights guaranteed to law-abiding Americans," Mr. Ashcroft said then.
     He said the government supports the kind of "reasonable restrictions" involved in the two cases before the high court — barring gun ownership by people under restraining orders and regulation of machine-gun ownership.
     Such regulation, Mr. Olson wrote, is "designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."
     Mr. Frey, a former deputy solicitor general, tried last week to intervene with Mr. Olson with a 15-page letter asking him to attack the Emerson appeal as premature without raising Second Amendment issues. That would allow the Supreme Court to dispose of the case without a chance to reverse entrenched policy on the Second Amendment as Mr. Ashcroft urged last year.
     "Sure, it's unusual, but it's not unheard of. There is no party to the Emerson case that has an interest in defending the militia-based view of the Second Amendment. Somebody has to speak for that other viewpoint," Mr. Frey said, objecting to what he called policy based on personal views.
     "The solicitor general and attorney general are meant to be, first and foremost, lawyers for the government," he said.
     The Second Amendment's text, with original punctuation and capitalization, 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."
     Defenders of broad gun rights say the main part of the sentence applies to individuals, but Mr. Frey and the Violence Policy Center say historians disagree.
     "That's not an implausible construction, although we believe it is superficial. Some people might conclude it could be either way, that it's ambiguous. But the question is, what do you do then with the militia clause?" Mr. Frey said.