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US says individuals have right to bear arms

Embraces broader interpretation of Constitution

By Lyle Denniston, Globe Correspondent, 5/8/2002

ASHINGTON - The Justice Department has for the first time made the argument to
the Supreme Court that the Second Amendment guarantees individuals a right to
have guns, not just members of government militias. 

 

In briefs filed late Monday, the Justice Department notified the court that the
Bush administration has changed its legal position and now embraces the
interpretation that the Second Amendment of the Constitution gives an
individual a right to have guns for private use. The longstanding opinion of
most courts has been that the Second Amendment guarantees only members of a
militia or National Guard the right to bear arms.

The Bush administration has given political support to broader rights for gun
owners, and Attorney General John Ashcroft has stated a constitutional argument
for them. All previous administrations have taken a traditional view of gun
rights before the Supreme Court.

The new interpretation added weight because it was offered by US Solicitor
General Theodore B. Olson, the government's top advocate in the court, to whom
the justices often look for advice on national legal issues.

The briefs seek to give constitutional stature to an argument that Ashcroft
first spelled out in a letter last May to the National Rifle Association - a
group that strongly supported the election of President Bush.

Reading the Second Amendment as a guarantee of a personal right to have guns
runs counter to the view held by all but one of the federal appeals courts that
have ruled on the issue, and appears to contradict a Supreme Court ruling in
1939 - the last time the justices ruled on that amendment's meaning.

Under that 63-year-old precedent, the court said that the amendment only
assures that individuals could have guns if they were called up in a militia.

But the US Court of Appeals for the Fifth Circuit, based in New Orleans, ruled
in October that the amendment assures individuals that they may ''privately
possess and bear their own firearms, such as a pistol, that are suitable as
personal, individual weapons.'' The appeals court said the right was subject to
narrow and limited restrictions.

Questions about the amendment's meaning have been put before the Supreme Court
in two appeals, both seeking to take advantage of the Fifth Circuit's ruling.
One involves a Texan who faces charges of having a pistol while under a court
order intended to protect his wife from violence. The other involves an
Oklahoman who sought to test the Second Amendment by walking into a police
station and announcing he had unlicensed machine guns; he was convicted and
sentenced to 33 months in prison.

The Justice Department was not required to reply to either appeal, but could do
so voluntarily or if the justices invited a response; they have not. 

That ruling, Olson said, ''reflects a sounder understanding of the scope and
purpose of the Second Amendment'' than rulings by other appeals courts that
rejected the personal rights approach. Olson conceded that, when both of the
cases were in lower courts, the Justice Department had taken the traditional
view that the amendment only involves the right to carry guns for members of a
militia.

''The current position of the United States,'' Olson said, ''however, is that
the Second Amendment more broadly protects the rights of individuals, including
persons who are not members of any military 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.''

Attached to Olson's briefs in the two cases were copies of a memo that Ashcroft
had sent to federal prosecutors Nov. 9, notifying them that ''in my view, the
[Fifth Circuit] opinion, and the balance it strikes, generally reflect the
correct understanding of the Second Amendment.''

This story ran on page A2 of the Boston Globe on 5/8/2002.
� Copyright 2002 Globe Newspaper Company. 

      
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