Individual gun rights get administration's support
By Joan Biskupic, USA TODAY
WASHINGTON — The Bush administration has told the Supreme Court that it believes that the right to bear arms applies to individuals, not just to state militias, a significant change in firearms policy that legal analysts say eventually could help form the basis for overturning some restrictions on guns.
The move reverses the U.S. government's long-standing view of the Second Amendment, voiced consistently since the Nixon administration, that the Constitution protects only the rights of state-sponsored militias, such as today's National Guard. It also bolsters efforts by Attorney General John Ashcroft, the National Rifle Association and other gun-control foes who have sought a broader reading of the Second Amendment and opposed many gun restrictions.
The government's new legal position could entice the Supreme Court, which last ruled on the right to bear arms in 1939, to again weigh in on the issue. The court said then that the right to bear arms belongs to the "well regulated militia" referred to in the Second Amendment. In recent years, some justices, most notably Clarence Thomas, have suggested that the court re-examine whether individuals are covered.
The administration's shift was asserted in briefs concerning two cases the high court received late Monday for possible review. Solicitor General Theodore Olson wrote that the government had changed its stance on the Second Amendment since the cases, from Texas and Oklahoma, were heard in lower courts.
"The current position of the United States," Olson wrote, "is that the Second Amendment more broadly protects 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 possession of types of firearms that are particularly suited to criminal misuse." He also suggested that gun restrictions be subject to the toughest constitutional test, called "strict scrutiny."
Harvard University law professor Laurence Tribe said that such a heightened standard ultimately could jeopardize some gun restrictions. Tribe added support to gun owners' rights two years ago, when he wrote that he had come to believe that the Second Amendment protects individuals, with certain limits. Tribe said the administration's new position goes further because its legal test "would severely restrict reasonable regulations of firearms. That is a rather frightening reading of the Second Amendment."
NRA spokesman Andrew Arulanandam praised the endorsement of an individual right to bear arms and the notion of a tougher legal standard for gun restrictions. "We hope that courts and legal scholars and politicians" adhere to the position, he said.
But Mathew Nosanchuk, litigation director for the Violence Policy Center, said the move has put "public safety and the enforcement of gun laws on a collision course with a legally untenable reading of the Second Amendment."
The immediate impact of the government's new view is likely to be slight. Olson told the justices that he believed it was unnecessary for them to hear the defendants' appeals in the Texas and Oklahoma cases. The lower courts rejected challenges to the U.S. laws at issue in the cases: one that prohibits those subject to domestic-violence restraining orders from owning certain firearms, and another that bans possession of machine guns. |
