July 11, 2001

Staff Reporter of THE WALL STREET JOURNAL

WASHINGTON -- In a move that could produce more challenges of federal gun-control laws, the Bush administration is drafting a legal finding that asserts individuals have a constitutional right to possess firearms.

Since the middle of the past century, almost all federal courts and the Justice Department under most administrations asserted that the Second Amendment only conferred a collective right to own guns through militias, not an individual right. As a result, restrictions on gun ownership have generally not been deemed to raise Second Amendment concerns.

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Mr. Ashcroft's letter to the NRA, which invokes several federal court decisions from the 19th century, "was not a personal view. The Office of Legal Counsel was consulted," said a U.S. official. He added that the new interpretation signaled a change from the aggressive gun-control policies of the Clinton administration.

How far-reaching an effect this has on federal gun-control statutes depends on how aggressive the Bush administration is in pressing its interpretation. A U.S. official involved said the "substantive effect will be zero" because the Justice Department will keep defending existing laws in court that restrict gun ownership by, among others, felons, the mentally incompetent and those convicted of domestic violence. U.S. officials cite a 1999 case in which U.S. District Judge Sam Cummings in Lubbock, Texas, threw out charges against a doctor who brandished a handgun in violation of a restraining order obtained by his estranged wife, citing the Second Amendment. The Clinton Justice Department appealed to the Fifth Circuit Court of Appeals, which hasn't ruled yet, but Bush administration officials say they don't intend to reverse the U.S. position in the case.

But the new interpretation could embolden the NRA and other gun-control foes to challenge existing gun restrictions in court on Second Amendment grounds. That could force the Bush administration to choose between defending those laws and offending the administration's allies. "I would argue that there are some" existing gun-control laws that aren't consistent with the Second Amendment, NRA lobbyist James Baker said, "and we would certainly make that case at some point."

"In light of the constitutional history, it must be considered as settled that there is no personal constitutional right, under the Second Amendment, to own or to use a gun."-- Justice Department Office of Legal Counsel, 1973

Gun-control advocates said the new interpretation is likely to result in fresh challenges to Clinton-era laws such as a ban on certain types of assault weapons and the so-called Brady law, which requires a computerized background check on firearms purchasers. The NRA has challenged these statutes on other constitutional grounds.

"The NRA can now say that any restriction on a so-called law-abiding gun owner's ability to immediately get a firearm would be an infringement on their Second Amendment rights," said Mathew Nosanchuk, litigation director at the Violence Policy Center and a former Justice Department lawyer. "Under its new interpretation, the Justice Department would be forced to decide how vigorously to defend this kind of attack."

The Second Amendment 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."

Carl Bogus, a professor at Roger Williams School of Law in Rhode Island who specializes in the Second Amendment, said its lack of application to individuals "couldn't be more settled as a matter of constitutional law." But he acknowledged that a growing body of scholars, mostly conservatives, have called for re-examining the issue. Two Supreme Court justices, Antonin Scalia and Clarence Thomas, have indicated support for revisiting the issue, he said.