May 24, 2001

Ashcroft Supports Broad View of Gun Rights

By FOX BUTTERFIELD

 In a letter to the chief lobbyist for the National Rifle Association, Attorney General
  John Ashcroft has taken sides in a fierce debate over the meaning of the Second
Amendment, saying he believes the Constitution protects the right of individuals to
keep and bear firearms.

Mr. Ashcroft's letter, sent last Thursday in response to an inquiry from the N.R.A.,
rejects another interpretation — applied by the Supreme Court in its last major ruling
on the amendment, in 1939 — which holds that the Constitution guarantees only a
collective right to guns through state and federal militias, not an individual's right.

The letter also effectively reverses course for the Justice Department, which under
Attorney General Janet Reno had argued that gun-control laws raised no constitutional
issues.

"Let me state unequivocally my view that the text and the original intent of the Second
Amendment clearly protect the right of individuals to keep and bear firearms," Mr.
Ashcroft wrote. "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."

In restating a view he espoused as a senator, Mr. Ashcroft allied himself with pro-gun
groups and some academics who in recent years have challenged the long-held
interpretation of the amendment.

This challenge gained ground in a 1999 case in which Judge Sam R. Cummings of
Federal District Court in Lubbock, Tex., dismissed gun-possession charges against a
doctor who used a handgun in violation of a restraining order taken out by his wife; the
judge found the doctor's right to own a gun had been violated.

Prosecutors appealed, and a decision by the United States Court of Appeals for the
Fifth Circuit in New Orleans is pending. However it rules, the Second Amendment
debate could come before the Supreme Court.

Other scholars have denounced the claim to a guarantee of an individual's right. And
they worry that Mr. Ashcroft's view, if it became government policy, could threaten
some or all gun-control laws.

To support his point, Mr. Ashcroft offered a list of citations of Supreme Court cases, as
well as a raft of recent legal scholarship, some of which was sponsored by the N.R.A.

He did not cite the 1939 Supreme Court ruling, which said the amendment must be
interpreted in connection with its clause about militias.

While defending a constitutional right to own guns, Mr. Ashcroft also said he believed
Congress could enact gun-control laws "for compelling state interests." He said the
same in his confirmation hearings.

The Second Amendment says: "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."

Reagan Dunn, a Justice Department spokesman, said that the letter had no great
significance. "The attorney general has articulated a standard here, his view of the
Constitution," Mr. Dunn said.

He declined to say whether that view amounted to a policy shift.

Carl T. Bogus, a law professor at Roger Williams University in Bristol, R.I., and an
expert on the Second Amendment, said that by ignoring the major Supreme Court and
other federal-court decisions on the amendment, Mr. Ashcroft was "failing to
acknowledge the law."

But Laurence H. Tribe, a professor of constitutional law at Harvard, said he believed
the Second Amendment was not meant to be limited to a collective right. Even so, Mr.
Tribe added, he thought it was also not meant to exclude regulation of firearms. There
should be, he said, "an intermediary view."

"If the Supreme Court were to accept the view that is held by the N.R.A., and maybe
by Ashcroft, then the right to own firearms would be analogous to the First
Amendment's guarantee of free speech," he said.

The net result, Mr. Tribe said, "would be to strike down a number of gun regulations."

Mr. Ashcroft's letter was written to James J. Baker, head of the N.R.A.'s lobbying arm.
Mr. Baker read parts of it to the group's convention last weekend in Kansas City, Mo.;
copies were also distributed.

Gun-owner groups generally said they were pleased with the letter, regarding it as a
step toward getting the amendment reinterpreted. But Larry Pratt, executive director
of Gun Owners of America, a 300,000- member group based in Springfield, Va., said
that "the footnote takes some of the zing away," referring to the warning that Congress
could still pass gun laws.

"That was not the intent of the founding fathers or the language of the amendment,"
Mr. Pratt said. "We think it means no gun control and that all gun-control laws are
unconstitutional."