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John Ashcroft's Constitution
The Attorney General offers an Interpretation
of the Second Amendment
By Terry Eastland  - 25 June 2001

The election of George W. Bush has brought forth a change in the government's view of the Second Amendment. More than a few Americans know the amendment by heart: "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." Under Bill Clinton, the Justice Department maintained that the amendment protects the right of the states to maintain a militia, but doesn't encompass the right of an individual to keep and bear arms. But now, under Bush, the department holds—as it has in many previous administrations—that the amendment protects a personal right to own firearms.

Attorney general John Ashcroft stated the new understanding in a May 17 letter that received scant attention. You can see why: As a senator, Ashcroft always held the pro-individual-rights position on the Second Amendment, and there was no reason to think he would reverse this position as attorney general, especially since he had reiterated it during his confirmation hearing. Also, Ashcroft's letter didn't say whether any particular federal firearms statute might now be unconstitutional. Second Amendment authorities tend to agree that most such laws would survive an individual-rights review, so the letter didn't seem to have any major implications for federal law enforcement.

Even so, the Ashcroft letter deserves more than a casual glance. It has notable political origins, and it will have consequences at least in terms of how Justice defends gun laws. Most important, it reveals Ashcroft's approach to constitutional interpretation.

The letter was a response to James Jay Baker, the chief lobbyist of the National Rifle Association, who on April 10 had written Ashcroft asking "your view and that of the current Department of Justice" on whether the Second Amendment "guarantees an individual right to keep and bear arms." There was a history behind Baker's letter, and it involves a current case, United States v. Emerson. Emerson is Timothy Joe Emerson, a Texas physician whose wife had filed for divorce and who was under a court order not to injure her. When his wife arrived at his office one day, Emerson pulled a Beretta pistol from a desk drawer and placed it on the tabletop. A federal grand jury indicted him for violating a 1994 law barring persons subject to restraining orders from possessing guns. Emerson argued that the indictment violated his Second Amendment right to keep and bear arms, and judge Sam R. Cummings agreed. Nelson Lund discussed the case at length in this magazine ("Taking the Second Amendment Seriously," July 24, 2000).

The Justice Department appealed, and on June 13, 2000, the U.S. Court of Appeals for the 5th Circuit, whose decision is still pending, heard oral arguments in the case. Assistant U.S. attorney William Mateja maintained that the Second Amendment doesn't protect an individual right to keep and bear arms. That position caught the eye of NRA member Robert D. Grace of Amarillo, Texas. Grace wrote attorney general Janet Reno asking whether Mateja's view of the Second Amendment was the department's position. On August 22, solicitor general Seth Waxman wrote Grace back confirming that it was.

In his letter to Ashcroft, Baker noted the Clinton Justice Department's position on the Second Amendment, citing Waxman's letter. It's a letter Baker knows well. "We proceeded to use that letter," says Baker, "and to hang it politically around the Gore-Lieberman campaign's neck." The NRA distributed the letter through direct mail in certain states, used portions of it in ads, and even excerpted it on one of their magazine covers, reproducing the entire letter on inside pages.

The use of the Waxman letter clearly strengthened the NRA's overall anti-Gore effort, which by early fall had weakened the Gore-Lieberman ticket in states with large populations of what an NRA spokesman calls the organization's "constituents." Gore and Lieberman responded by downplaying gun control. "They finally figured out that this wasn't playing in places they needed to win," says Baker. "The election wasn't going to be decided in Los Angeles and New York, but in all of those other places that the election maps later showed in red." Neutral observers credit the NRA with helping Bush win states where Gore was once favored—West Virginia, Tennessee, and Arkansas. Had even one of those states gone to Gore, he would be president today.

In his letter to Baker, Ashcroft, who is a member of the NRA, wrote: "Let me state unequivocally my view that . . . the Second Amendment [protects] the right of individuals to keep and bear firearms." Baker wasn't surprised by this, noting that Ashcroft has "always been a supporter of what we consider to be the original intent of the Second Amendment." Though Ashcroft didn't comment on pending cases, the letter, as one senior Justice official told me, signaled that department attorneys would no longer in the course of law enforcement take the position that the Second Amendment doesn't protect individual rights. "We won't defend firearms statutes and regulation on that basis."

Ashcroft's letter was sent the day before the NRA's annual convention. A Justice Department spokesman declined to say whether the timing was simply coincidental. Baker read portions of the letter to the thousands attending. News of the letter has been widely circulated thanks to the Internet. Oddly, it's yet to be posted on the Justice Department's site.

Certainly it should be, together with Waxman's letter. Waxman found support for his position in federal case law of the past half century that he said rejected the claim that the Second Amendment includes a personal right to bear arms, while Ashcroft based his position on "the text and the original intent" of the amendment itself. The case law approach to understanding the Constitution begs the question of whether those cases were in fact correctly decided. That question can't be, and certainly shouldn't be, answered without repairing to "the text and the original intent."

Waxman's letter did repair, after a fashion, to text and intent by quoting a 1973 letter by a Justice Department lawyer (in the Office of Legal Counsel) to George Bush, then chairman of the Republican National Committee. But this lawyer simply asserted, without evidence, that the language and history of the amendment foreclose the individual-rights understanding. While it is understandable that a solicitor general, the government's chief appellate lawyer, should cite federal case law in behalf of a legal position (including in this case the only Supreme Court decision close to being relevant), it is embarrassing that a solicitor general could accept departmental assertions about constitutional text and history that scholars from across the political spectrum have contradicted.

One of the better recent analyses of the text and history of the Second Amendment was offered by constitutional historian Leonard Levy in his 1999 book Origins of the Bill of Rights. He points out that "the very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause." He traces the history of this personal right from the English Bill of Rights in 1689 through Blackstone's Commentaries to the colonial experience, concluding with an examination of the Framers, including James Madison, who crafted the amendments, including the Second (originally the Fourth), that we know simply as the Bill of Rights. "Madison did not make the right to bear arms dependent on serving in the militia," reports Levy, observing that in personal correspondence Madison referred to his amendments as "guards for private rights."

In his letter, Ashcroft began with text, observing that the Second Amendment is like the First and Fourth Amendments: By their very terms all three protect the rights of "the people." Ashcroft drew the obvious conclusion: "Just as the First and Fourth Amendments secure individual rights of speech and security respectively, the Second Amendment protects an individual right to keep and bear arms." He added that "this view of the text comports with the all but unanimous understanding of the Founding Fathers."

Ashcroft's letter, a mere two pages, hardly provides the complete argument from text and history. Nor does it grapple with the cases Waxman cited, mostly from the second half of the 20th century. It does list 19th-century cases in behalf of the individual-rights interpretation, but these cases only lend implicit support. Suffice it to say, the attorney general's position hasn't been fully articulated. Not that it should have been: That can be done in a formal legal opinion by the Office of Legal Counsel (still awaiting the nomination of an assistant attorney general to run it), or by solicitor general Theodore Olson in an actual Supreme Court case. It isn't hard to imagine such a case, and Emerson could be it.

For now, what stands out is the attorney general's willingness to look first to text and history in interpreting the Constitution. This, too, is a change from the previous administration, and it reveals a Justice Department that's not overly impressed with what judges say about the Constitution but is instead willing to assert its own interpretation.

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