Defendants Fighting Gun Charges Cite New View of Second Amendment

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[url]http://www.nytimes.com/2002/07/23/national/23GUNS.html[/url]

July 23, 2002
Defendants Fighting Gun Charges Cite New View of Second Amendment
By ADAM LIPTAK

Scores of criminal defendants around the nation have asked federal courts
to dismiss gun charges against them based on the Justice Department's
recently revised position on the scope of the Second Amendment.
The new position, that the Constitution broadly protects the rights of
individuals to own guns, replaced the view, endorsed by the great majority
of courts, that the amendment protects a collective right of the states to
maintain militias.
While the challenges have been rejected by trial court judges, based
largely on appeals court precedent, supporters and opponents of broad
antigun laws say the arguments have forced the Justice Department to take
contradictory stances.
Andrew L. Frey, a deputy solicitor general in the Justice Department from
1973 to 1986, said the department's new position would make life difficult
for prosecutors and might give criminal defendants unforeseen
opportunities.
"Is this a Pandora's box, which, when once opened, cannot be controlled?"
asked Mr. Frey, who opposed the new position in a letter to Justice
Department officials on behalf of a gun-control group.
A spokeswoman for the Justice Department, Monica Goodling, said the
department was committed to prosecuting gun crimes.
"The department believes it can defend the constitutionality of all
existing federal firearms laws while working to take guns out of the hands
of those who abuse them," Ms. Goodling said.
In briefs filed with the Supreme Court in May, department lawyers said
laws that restrict gun ownership by unfit people or restrict ownership of
guns "particularly suited for criminal misuse" are appropriate.
The department faces the clearest contradictions of its stance in
Washington, which has an essentially complete ban on handguns. The city's
government is supervised by Congress, and its local crimes are prosecuted
by the Justice Department.
Ms. Goodling was more guarded in discussing the District of Columbia's gun
law.
"The department can defend its criminal prosecutions of the firearms laws
in D.C., and is doing so," she said. The difference in wording suggests
that the department is unwilling to endorse the constitutionality of
Washington's gun law in all circumstances.
People on both sides of the gun control debate find fault with the
department.
"The Justice Department has created a very dangerous situation that is
endangering public safety and forcing Justice Department prosecutors to
litigate with one hand tied behind their backs," said Mathew S. Nosanchuk,
litigation director of the Violence Policy Center, a gun control group in
Washington. "Criminals are using the department's own Second Amendment
language to challenge the gun laws."

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On the other hand, Robert A. Levy of the Cato Institute, a libertarian
research group in Washington, was critical of Attorney General John
Ashcroft for announcing the new position in briefs to the Supreme Court in
May but not applying it in trial courts.
"It's bizarre for Ashcroft to go out of his way to assert that the Second
Amendment is about an individual right when he didn't have to say
anything," Mr. Levy said. "When he has the chance to make the assertion in
a case where it really matters, he doesn't. It's puzzling."
Prosecutors opposing the new Second Amendment challenges have filed narrow
and cryptic responses. In a brief filed in the District of Columbia Court
of Appeals, for instance, the Justice Department noted that its position
on the Second Amendment was inconsistent with that of the court, which has
held that the amendment protects a collective right. Still, it continued,
"although the question of the proper interpretation of the Second
Amendment is significant, this case simply does not present that question
in a manner suitable for resolution."
In other briefs, the government has argued that a particular defendant or
weapon fits within its own announced exceptions. According to a brief
filed in San Francisco, "The government does not concede that the Second
Amendment creates a fundamental individual right for felons to bear arms,
or for anyone to bear arms" like the machine guns at issue in that case.
The Supreme Court last addressed the meaning of the Second Amendment in
1939, in a decision that lawyers on both sides of the issue say supports
their views. That disagreement about Supreme Court precedent, along with a
federal appeals court decision last year adopting the individual-rights
view, means it is an open question how other appeals courts will view the
new challenges.
In footnotes in two filings with the Supreme Court in May, the government
said the Second Amendment protected the rights of individuals "to possess
and bear their own firearms, subject to reasonable restrictions designed
to prevent possession by unfit persons or to restrict the possessions of
types of firearms that are particularly suited to criminal misuse."
Defendants have said this position amounts to a recognition that the right
to bear arms is as fundamental as the right to free speech and so requires
courts to be extremely skeptical of government efforts to regulate guns.
That is a position that has long been held by groups opposing gun control.
Public defenders say they are engaged in a cat-and-mouse game with the
government, with the goal of forcing it to articulate its true position.
The government's court filings, said John Paul Reichmuth, a federal public
defender in Oakland, Calif., are "evasive and anemic to the point of
unconsciousness." But, Mr. Reichmuth said, "at some point in some argument
where a real case is going on, they won't be able to fall back on their
procedural arguments and they'll have to state what the content of the
right is."
An appeal in the most challenging case, that of the District of Columbia's
gun law, has already reached the local appellate court, the District of
Columbia Court of Appeals. It was filed by Bashuan Pearson, who was
charged with felony weapons possession. In court papers, Mr. Pearson said
that he had a license to carry the pistol in question in Maryland and that
he had a clean criminal record.

-- continued --

Mr. Pearson complained to the appeals court that in its own court papers
the Justice Department "refuses to reveal whether, under the current view
of the attorney general concerning the meaning of the Second Amendment,
the District's gun laws are facially unconstitutional."
Mr. Pearson asked for a full-court hearing. Only the full court can
overrule an earlier precedent of the court, which held that the Second
Amendment protects a collective right.
Apparently not satisfied that the Justice Department will adequately
defend the local law, the District of Columbia's lawyers have asked to
intervene in the case.
James C. McKay Jr., a lawyer for Washington, said Justice Department
prosecutors must reconcile their day-to-day prosecutorial practices with
the department's new policy. "There is a conflict between their very hard
approach to gun possession and their position that there is a Second
Amendment right to carry a gun," Mr. McKay said.
The government is allowed to take contrary legal positions in different
settings, legal experts said. "The argument that you're being hypocritical
is not a legally sufficient argument," said Akhil Reed Amar, a law
professor at Yale.
But there are practical difficulties in reconciling warring positions in
related litigations, said Michael Dorf, a law professor at Columbia.
"Ashcroft is trying to please two different constituencies," Mr. Dorf
said. "On the one hand, there is the gun lobby, which is very pleased with
his decision. On the other hand, he has to consider federal prosecutors
and probably the general public as well."
Mr. Frey, the former deputy solicitor general, said he hoped the question
would remain academic.
"I hope the upshot will be that the attorney general's new position will
be rejected and recede into the mists of history," he said, "or that it
will turn out to be contentless in that there will be no cases to which it
will apply."

Copyright 2002 The New York Times Company

Something I see is that most, if not all of these nimrods are already convicted felons. Thus they've forfeited their 2nd Amendment rights in most states. I do wish/hope that liberals would treasure the 2nd as they do the 1st. Never happen, of course.