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Editorial: Trigger-happy? / Justice shifts ground on the Second Amendment

Tuesday, May 14, 2002

In briefs filed with the U.S. Supreme Court, the U.S. Justice Department has made an unnecessary and perhaps ominous shift in its interpretation of the Second Amendment's "right to keep and bear arms."

In the course of defending the constitutionality of laws restricting gun ownership, Solicitor General Ted Olson endorsed the idea, dear to the National Rifle Association, that the amendment protects individual gun ownership and not just the arming of a state militia.

For decades, gun-control advocates have found comfort in the full text of the Second Amendment: "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."

In previous administrations, the Justice Department likewise placed the emphasis on "well regulated militia." It claimed support for that view from a 1939 Supreme Court decision that held that the Second Amendment protected only those weapons with "some reasonable relationship to the preservation or efficiency of a well regulated militia." But that decision muddied matters somewhat by noting that, in the early days of the Republic, militias consisted of "every able-bodied male person" of a certain age.

In recent years, legal historians have tried to bridge two absolutist views of the Second Amendment: one limiting its application to organized militias like the National Guard, the other seeing it as a blank check for the private possession of any weapon (presumably even an atomic bomb) for any purpose. One of those scholars, Akhil Amar of Yale Law School, told The Washington Post last week that "we might have a better discourse if we could just admit that there is an [individual] right, but it's not absolute."

The Bush Justice Department would argue that that is all it has done in briefs submitted to the Supreme Court in two cases, one filed by a Texas man prosecuted for owning a gun while under a domestic-violence restraining order, the other filed by an Oklahoma man convicted of illegally possessing two machine guns.

Mr. Olson called for the high court to sustain those convictions. In doing so, however, he opined that the Second Amendment "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."

To be fair, Mr. Olson describes "reasonable restrictions" broadly. They include limitations "designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse" -- a category that would seem to cover so-called "assault weapons" and easily concealed handguns.

Still, gun-control advocates are understandably apprehensive. For one thing, the Justice Department's change of position was unnecessary; the solicitor general could have defended the convictions without addressing the question of whether the Second Amendment protects an individual right to bear arms. In insisting on doing so, the department seems to be playing to the anti-gun-control crowd.

That in turn raises another concern: that the department under Attorney General John Ashcroft might be trying to plant a legal time bomb by urging the Supreme Court to ratify an individual right to gun ownership, subject to limitations. The stage might then be set for future arguments that such limitations must be not just reasonable but justified by a "compelling state interest." That is the exacting test the courts have used in scrutinizing restrictions on free speech.

In testimony before the Senate Judiciary Committee last week, Deputy Attorney General Larry Thompson promised that "the department is going to vigorously enforce the gun laws" despite the change of position on whether the Second Amendment protects an "individual" right. We'd like to take him at his word, but we'd feel more confident if Messrs. Olson and Ashcroft had kept their legal powder dry.

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