The Washington Post
Wednesday, August 1, 2001; Page A16

Mr. Ashcroft and the NRA
Editorial

ATTORNEY GENERAL John Ashcroft, in a recent letter to the National Rifle
Association, stated that the "text and original intent of the Second
Amendment clearly protect the right of individuals to keep and bear
firearms." The amendment, in his view, protects this individual right "just
as the First and Fourth Amendments secure individual rights of speech and
security respectively." Mr. Ashcroft's remarkable statement has delighted
the NRA, which put his face on the cover of the July issue of its America's
1st Freedom magazine. According to the Wall Street Journal, the attorney
general's view is now being formalized by the department's Office of Legal
Counsel as the official position of the executive branch. Never mind that it
reverses the long-standing position of the Justice Department, which has a
duty to enforce and defend myriad federal gun laws that might be struck down
were courts to accept too broad a conception of the Second Amendment. Never
mind either that it conflicts with just about all 20th century case law on
the meaning of the amendment, which states that "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."

The Supreme Court has not recently -- or clearly -- pronounced on the
subject of guns, but its 1939 decision in U.S. v. Miller states that the
amendment was adopted "with obvious purpose" of protecting the ability of
states to organize militias and "must be interpreted and applied with that
end in view." Federal courts of appeals have been more explicit. "It must be
remembered that the right to keep and bear arms is not a right given by the
United States Constitution," wrote the 3rd Circuit Court of Appeals in 1973.
Added the 4th Circuit a year later, "The courts have consistently held that
the Second Amendment only confers a collective right of keeping and bearing
arms."

In recent years some scholars have argued that the individual rights view of
the amendment -- Mr. Ashcroft's view -- is historically accurate. The
Founders, they contend, regarded an armed citizenry as a bulwark against
potential tyranny and intended the amendment to protect household guns. This
wave of scholarship is working its way into cases: A federal district court
in Texas threw out a gun charge in 1999 on Second Amendment grounds -- a
case now before the 5th Circuit Court of Appeals.

Yet the demise of militias in American society is not the only changed
circumstance that makes a purist conception of the Second Amendment
unsustainable today. Eighteenth-century firearms had far less offensive
capability than assault weapons and modern handguns. If the people's right
to bear arms includes these weapons, why does it not also include howitzers
or, for that matter, helicopter gunships? There must be some type of weapon
so dangerous that its proliferation can legitimately be blocked even among
law-abiding citizens. Mr. Ashcroft himself acknowledges, albeit in a
footnote to his NRA letter, that Congress can enact laws restricting gun
ownership "for compelling state interests." This concession may allow the
attorney general to stick to his vow to defend and enforce existing laws.
But Mr. Ashcroft's embrace of the individual-rights view of the amendment
can serve only to inject uncertainty into an area of law that has long been
settled.

http://www.washingtonpost.com/wp-dyn/articles/A14307-2001Jul31.html