ASHINGTON,
May 7 — The Justice Department, reversing decades of official
government policy on the meaning of the Second Amendment, told
the Supreme Court for the first time late Monday that the
Constitution "broadly protects the rights of
individuals" to own firearms.
The position, expressed in a footnote in each of two briefs
filed by Solicitor General Theodore B. Olson, incorporated the
view that Attorney General John Ashcroft expressed a year ago in
a letter to the National Rifle Association. Mr. Ashcroft said
that in contrast to the view that the amendment protected only a
collective right of the states to organize and maintain
militias, he "unequivocally" believed that "the
text and the original intent of the Second Amendment clearly
protect the right of individuals to keep and bear
firearms."
It was not clear at the time whether the letter to the rifle
association's chief lobbyist simply expressed Mr. Ashcroft's
long-held personal opinion, or whether it marked a departure in
government policy. The Supreme Court's view has been that the
the Second Amendment protected only those rights that have
"some reasonable relationship to the preservation of
efficiency of a well regulated militia," as the court put
it in United States v. Miller, a 1939 decision that remains the
court's latest word on the subject.
But it has been evident since last fall that Mr. Ashcroft was
in fact setting new government policy. In October, the federal
appeals court in New Orleans, saying it did not find the Miller
decision persuasive, declared that "the Second Amendment
does protect individual rights," rights that nonetheless
could be subject to "limited, narrowly tailored specific
exceptions." Mr. Ashcroft quickly sent a letter to all
federal prosecutors' offices, calling their attention to the
decision in United States v. Emerson and informing them that
"in my view, the Emerson opinion, and the balance it
strikes, generally reflect the correct understanding of the
Second Amendment."
He told the prosecutors to inform the department's criminal
division of any case that raised a Second Amendment question so
the department could "coordinate all briefing in those
cases" and enforce federal law "in a manner that heeds
the commands of the Constitution."
In the briefs it filed at the Supreme Court after the close
of business on Monday, the Solicitor General's office attached
the Ashcroft letter and included the following footnote to
explain its new position:
"In its brief to the court of appeals, the government
argued that the Second Amendment protects only such acts of
firearm possession as are reasonably related to the preservation
or efficiency of the militia. The current position of the United
States, however, 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, 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."
While announcing the government's new position, the briefs do
not ask the court to respond by taking any action itself. In
both cases, defendants charged with gun offenses raised Second
Amendment defenses and appealed to the Supreme Court. One is the
Emerson case, now called Emerson v. United States, No. 01-8780,
an appeal by a doctor who was charged with violating a federal
law that makes it a crime for someone to own a gun while under a
domestic violence restraining order. The other is Haney v.
United States, No. 01-8272, an appeal by a man convicted of
owning two machine guns in violation of federal law.
Solicitor General Olson urged the Supreme Court to turn down
both appeals. He said that even accepting an individual right to
bear arms, the application of the laws at issue in both cases
reflected the kind of narrowly tailored restrictions by which
that right could reasonably be limited. Consequently, there was
no warrant for the court to take either case, the briefs said.