Anti-Gun Groups Contest Individual Right to Own Firearms

July 7, 2008 - 8:03 PM

( - U.S. Attorney General John Ashcroft and the Bush administration have clearly stated their view that the Second Amendment guarantees an individual right to keep and bear arms, but that interpretation isn't stopping gun control groups from pushing for more restrictions on firearms.

Gun control advocates cling to a 1939 U.S. Supreme Court ruling, in which the justices said the Second Amendment protects only those gun rights that have "some reasonable relationship to the preservation...of a well-regulated militia."

Many believe the 1939 verdict in the U.S. v. Miller case reinforced the individual's right to keep and bear arms, but only those weapons commonly used in militias. The defendants in the Miller case had attempted to transport sawed-off shotguns from Oklahoma to Arkansas.

Others say neither the Miller ruling nor the Second Amendment guarantee any individual right to bear arms, despite the position recently staked out by Ashcroft and the administration.

"The Miller decision remains the law of the land and it continues to be followed in the lower courts," said Mathew Nosanchuk of the Violence Policy Center, a group that supports gun control.

"If the lower courts have been misreading Miller for 63 years as the NRA and pro-gun advocates believe, the Supreme Court has had ample opportunity to correct the error.

"Thankfully, the justices do not share Attorney General John Ashcroft's enthusiasm for reinterpreting the Second Amendment," Nosanchuk added.

In a letter to the National Rifle Association last year, Ashcroft argued that the Second Amendment is indeed an individual right.

"While some have argued that the Second Amendment guarantees only a collective right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

Ashcroft's comments to the NRA were bolstered this spring by U.S. Solicitor General Ted Olson, who argues the government's side in cases before the U.S. Supreme Court.

In appellate court filings in two separate cases, Olsen wrote, "The current position of the United that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engage in active military service or training, to possess their own firearms.."

He added that firearms possession is "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."

The Supreme Court refused to review the two cases where Olsen weighed in. In both cases, individuals convicted of violated federal gun laws asked that their convictions be overturned.

One case, Emerson vs. the United States, involved a doctor who was charged with violating a federal law that makes it a crime for someone to own a gun while under a domestic-violence restraining order.

The other case was Haney vs. the United States, which involved a man convicted of owning two machine guns in violation of the federal law that bans machine gun ownership without appropriate licenses.

In both cases, the administration argued that the firearm restrictions being challenged were reasonable.

In refusing to hear the cases, the Supreme Court cited as precedent the 1939 ruling in the United States vs. Miller case that said the Second Amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia."

The Brady Campaign, formerly known as Handgun Control, Inc., believes the Supreme Court's rejection of the Haney and Emerson cases represents a defeat for Second Amendment advocates.

"Every federal appeals court in the country, except two judges on the Emerson panel, has rejected the NRA view, and has held that the Second Amendment does not provide individuals with a right to possess firearms absent a relationship with a state militia," according to a statement from the Brady Campaign.

The actions of the Supreme Court, the Brady Campaign stated, continued what it called "its unbroken string of defeats in Second Amendment challenges to gun laws."

But the NRA believes the Supreme Court's refusal to hear Haney and Emerson cases relieves the Bush administration from having to further explain its position on the Second Amendment.

Chris Cox, the NRA's chief lobbyist, said the gun rights organization wasn't disappointed by the court's refusal to take up the Emerson and Haney cases because "our client is the Second Amendment" and not the individual defendants.

"The Second Amendment won," Cox said.

Court decisions notwithstanding, the current attitude at the White House and the Justice Department is dramatically different from the one maintained during the Clinton administration.

During his time in office, Clinton lobbied strongly for passage of a background check law and an assault weapons ban and later signed those measures into law.

Clinton also desired but never got a national licensing program for all gun owners, running into opposition from those who said there were already hundreds of federal and state firearms regulations on the books, many of which were not being enforced.

E-mail a news tip to Jim Burns.

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