CHAPTER 14
IN BED WITH THE NRA
In November 2001, Attorney General John Ashcroft informed the National Rifle Association of his interpretation of the Second Amendment. He read the amendment as granting an absolute right to all Americans, but others, citing the amendment’s introductory phrase on the need to maintain “a well regulated militia.” On the other hand, proponents of gun control interpreted this as meaning that the Second Amendment should be read in that context and that it was limited at a time when the United States has a huge, standing military force – particularly since the colonists had just defeated British forces.Half a year later – in May 2002 -- the Bush administration reversed a long-standing government policy of over 60 years. Under that Supreme Court interpretation in 1939, Congress and local governmental authorities had great freedom to regulate the possession and use of firearms by individuals.
The Justice Department’s brief to the Supreme Court said that the Second Amendment protected an individual’s right to possess a firearm that was not tied to state militias. Solicitor General Theodore Olson of the Justice Department cited two cases that the Supreme Court was considering for review. (New York Times and Washington Post, May 8, 2002)
It was the first time that the federal government had said in a formal filing with a federal court that the Second Amendment grants an individual the right to bear arms. Acknowledging that the briefs represented a shift in government policy, Olson noted that, when the two cases were argued before separate appeals courts, “the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia.” (New York Times and Washington Post, May 8, 2002)
But Olson said in the briefs, “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 (state) militia or engaged in active military service or training, to possess and bear their own firearms.” (New York Times and Washington Post, May 8, 2002)
Olsen said the rights were “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.” (New York Times and Washington Post, May 8, 2002)
Olson stated the Bush administration's position on the Second Amendment while also arguing that the Supreme Court should not accept the two cases for review, thereby letting stand appeals court rulings that upheld the constitutionality of provisions of federal gun control laws. (New York Times and Washington Post, May 8, 2002)
The key case involved a Texas man named Timothy Joe Emerson who was indicted for possession of a Beretta pistol while he was the subject of a domestic violence restraining order obtained by his wife. A federal district judge dismissed the indictment on the grounds that it violated Emerson's Second Amendment rights, but the 5th U.S. Circuit Court of Appeals reversed the lower court judge and ordered Emerson to be tried on the charge. (New York Times and Washington Post, May 8, 2002)
In its ruling, the appeals court included a lengthy discussion of the Second Amendment, concluding that the amendment “protects the rights of individuals, including those not actively a member of any militia … to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons.” It was this view that Olson’s briefs explicitly endorsed. (New York Times and Washington Post, May 8, 2002)
But the appeals court also ruled that the Second Amendment is subject to “limited, narrowly tailored specific exceptions or restrictions … that are reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms as historically understood in this country.” It said the prohibition on gun ownership by someone subject to a domestic violence restraining order was such a reasonable exception, a view that Olson also endorsed in urging that the Supreme Court not to review the case. (New York Times and Washington Post, May 8, 2002)
The second case involved an Oklahoma man, John Lee Haney, who was convicted of possession of a machine gun, which is outlawed by federal law. In his appeal, Haney cited the 5th Circuit's opinion in the Emerson case to argue that his conviction violated his Second Amendment rights. (New York Times and Washington Post, May 8, 2002)
In his brief, Olson said that the Emerson decision “reflects a sounder understanding of the scope and purpose of the Second Amendment” than that offered by other appeals court rulings on the issue. He added that the ban on machine guns is another permissible limitation on the right to bear arms. (New York Times and Washington Post, May 8, 2002)