The New York Times
June 11, 2002

Justices Reject Cases on Right to Bear Arms
By LINDA GREENHOUSE

http://www.nytimes.com/2002/06/11/national/11GUNS.html

WASHINGTON, June 10 — There will be no debate at the Supreme Court over the right to bear arms, at least in the immediate future.

In turning down two appeals by defendants charged with federal firearms violations, the justices today relieved the Bush administration of the need to further explain its statement to the court last month that the Second Amendment "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."

The constitutional right was subject to "reasonable restrictions" designed to prevent "criminal misuse" and keep guns out of the hands of "unfit persons," the administration told the court in footnotes to the briefs filed by defendants in federal firearms cases who were arguing that their prosecutions infringed their Second Amendment rights.

The justices made no comment in declining to hear the two cases. In advising the court of its new policy on the Second Amendment — which reversed a decades-old federal position that the amendment applied only to a collective and not an individual right to bear arms — the administration also told the justices that these particular appeals were not suitable for review for procedural reasons and should be denied.

Not only the policy change, but the offhand manner in which the administration expressed such a major policy change, in footnotes in briefs filed without public announcement, drew considerable criticism. Although it failed to interest the court, the episode greatly raised the visibility of a debate over the meaning of the Second Amendment that had been growing in academic circles and had been slowly attracting judicial attention.

In one of the cases the court turned down today, Emerson v. United States, No. 01-8780, the United States Court of Appeals for the Fifth Circuit, in New Orleans, held that the Second Amendment did protect an individual right to bear arms, subject to "limited, narrowly tailored specific exceptions or restrictions." At the same time, the appeals court found that a federal law prohibiting gun possession by people under restraining orders for domestic violence fit within such an exception, "though likely barely so."

The appeals court's ruling allowed a federal prosecution to proceed against a Texas man, Timothy J. Emerson, whose trial on the gun possession charge has not yet taken place. The Supreme Court does not typically accept an appeal at the pretrial stage, but Dr. Emerson remains free to raise the issue again if he is convicted.

That is only one possible way the Second Amendment issue might come back before the Supreme Court. Criminal defense lawyers were quick to seize on the new policy to argue in courts around the country that firearms prosecutions were violating their clients' constitutional rights.

Lawyers for John Walker Lindh, the so-called American Taliban, cited the government's new position in filing a motion to dismiss a weapons charge among the various charges against him. The District of Columbia's strict handgun ban has come under attack by defense lawyers, in an argument that Judge Judith E. Retchin of Superior Court rejected in an opinion on May 31. Judge Retchin said her court was bound by Supreme Court and local precedent and could not be guided by "a memorandum circulated by the attorney general of the United States."

Federal public defenders in San Francisco have raised a Second Amendment defense in a case to be argued in Federal District Court there next month.

The second case the court turned down today was Haney v. United States, No. 01-8272, a Second Amendment challenge to the federal prohibition on owning machine guns.

The government's new position echoed a view Attorney General John Ashcroft took last year in a letter to the National Rifle Association. Chris Cox, the N.R.A.'s chief lobbyist, said today that the organization was not disappointed by the Supreme Court's inaction today because "our client is the Second Amendment" and not the individual defendants.

"The Second Amendment won," Mr. Cox said, when the administration informed the court of its new policy.

Big Suprise [rolleyes]

SOunds like a handy way to keep status quo without a controversial court decision.  Great. [:(]