Justice Dept. Reverses Stance on Constitution Including Right to Bear Arms

A footnote in a Supreme Court filing written by the Bush administration's top lawyer marks a full reversal of the government's 40-year-old policy on gun ownership and lends weight to the interpretation that the Second Amendment guarantees individuals the right to bear arms.

"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," Solicitor General Theodore Olson wrote in two court filings this week.

That right, however, is "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."

Olson, the administration's top Supreme Court litigator, wrote the footnote as part of the government's filings in two cases that are up for consideration by the Supreme Court. The first case involves an appeal by a man who was charged with carrying a gun while also subject to a restraining order filed by his wife.

In that case, the Second Circuit Court of Appeals ruled that the Second Amendment does guarantee rights to individual ownership, but "limited, narrowly tailored specific exceptions" can be made, for instance, denial of gun ownership rights to individuals bearing restraining orders. 

Olson's briefing to the high court urged it not to take the case, leaving the Circuit Court's ruling intact. 

The filing comes six months after Attorney General John Ashcroft praised the appeals court's decision.

"In my view, the (Circuit Court) opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment," Ashcroft told prosecutors last November.

In a second case involving a man convicted of owning two machine guns in violation of federal law, Olson made the same notation. In that case, the government also won a lower court decision endorsing a federal gun control law.

The change in policy is an extension of views expressed by Ashcroft in a letter to the National Rifle Association last year.

In it, the attorney general said that the Second Amendment confers the right to "keep and bear arms" to private citizens, and not merely to the "well-regulated militia" mentioned in the amendment's text and used by gun control advocates to argue that the Second Amendment only refers to individual gun ownership when the individual is a member of the military or police forces.

"While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

Critics, who earlier accused Ashcroft of kowtowing to the NRA and of undermining federal prosecutors, are infuriated by the solicitor general's latest filing.

"This action is proof positive that the worst fears about Attorney General Ashcroft have come true — his extreme ideology on guns has now become government policy," said Michael D. Barnes, president of the Brady Center to Prevent Gun Violence, which promotes gun control.

The Supreme Court has not ruled on a Second Amendment case since 1939. In that case, the court ruled that the Second Amendment protects those with "some reasonable relationship to the preservation of efficiency of a well regulated militia."

The cases are Emerson v. United States, 01-8780 and Haney v. United States, 01-8272.