Right of citizens to bear arms comes under scrutiny

LETTER FROM AMERICA: Ever since the US Supreme Court in 1939 considered a bootlegger's right to carry a sawn-off shotgun, the US courts have stood by its view then that the right to bear arms is not an individual right but one that arises from and relates to "some reasonable relationship to the preservation of efficiency of a well-regulated militia" (US v Miller).

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. - Second Amendment to the US Constitution

That has also been the view of the US Justice Department, charged as it is with the maintenance of good order and the safety of citizens in a country where 100,000 people every year die or are wounded by firearms.

The interpretation has allowed states and the federal government, with varying degrees of enthusiasm, to institute background checks on prospective owners, to prohibit the mentally ill and convicted felons from owning guns, to ban the carrying of concealed weapons and limit the availability of automatics.

On Monday, however, the Justice Department, apparently at the instigation of the Attorney General, John Ashcroft, did a dramatic, and possibly far-reaching, about-face. In a commentary sent to the court on two pending cases the department insisted that the 1939 ruling was wrong and came out for the deeply controversial "individual rights" interpretation of the Second Amendment.

"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 militia or engaged in active military service or training, to possess and bear their own firearms," the Solicitor General, Mr Theodore Olson, wrote in a footnote to the briefs.

That right, Mr Olson acknowledged, is subject to certain restrictions that allow the government to keep weapons out of the hands of "unfit persons" and to ban certain types of weapons often used by criminals. But to impose restrictions, he argued, the government must prove a compelling national interest.

His statement gives the status of administration policy to the views expressed last year by Mr Ashcroft when he wrote to the National Rifle Association (NRA) that, in contrast to the view that the amendment protected only a collective right of the states to organise and maintain militias, he "unequivocally" believed that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."

Should that rationale, a reversal of the onus of proof, be accepted by the courts, gun-control advocates believe, many local and national regulations may be in jeopardy. They argue that the administration has capitulated grotesquely not just to the gun lobby but its most radical, some would say revolutionary, wing.

Mr Michael Barnes, president of the Brady Centre to Prevent Gun Violence, warned that the department now will invite federal judges "to make their own judgments about whether the gun law at issue is 'reasonable'." He noted that in one of the two cases being considered by the Supreme Court, one federal district court judge in Texas "did not think it reasonable to bar \ Timothy Joe Emerson from possessing guns, even though Emerson had threatened his wife and child with a pistol, owned an arsenal of weapons, and had a domestic violence restraining order against him.

"This action is proof positive that the worst fears about Attorney General Ashcroft have come true: his extreme ideology on guns has now become government policy," Mr Barnes said.

Mr Ashcroft, a long-time member of the NRA, who lobbied and voted with extraordinary loyalty for its cause as a senator, was fiercely opposed by gun-control activists at his Senate confirmation hearings last year. They pointed out that he had called the federal assault weapons ban "wrong-headed" and had told a Senate hearing on the meaning of the Second Amendment that it supports "good government" because an armed citizenry "is less likely to fall victim to a tyrannical central government . . ."

That reasoning has found some backing among even liberal legal historians, drawing on historical analogies with American settlers' fight for independence.

But, in an age when a developed, legitimised state has, or at least claims to have, established, the rule of law, it is a logic that strangely places the man most responsible for the protection of the public firmly in the ideological camp of the dwindling band of far-right, paranoid anti-state militias.

And Mr Ashcroft has been waiting for his chance. In October, the federal appeals court in New Orleans, saying it did not find the Miller decision persuasive, declared that "the Second Amendment does protect individual rights," rights that nonetheless could be subject to "limited, narrowly tailored specific exceptions." Mr Ashcroft then quickly sent a letter to all federal prosecutors' offices, urging them to inform the Department's criminal division of any case that raised a Second Amendment question so the department could "co-ordinate all briefing in those cases" and enforce federal law "in a manner that heeds the commands of the Constitution."

His intervention in the current two cases will not contribute to a reversal this time of the court's position. In both cases, one involving a violent abuser's right to arm himself, the other, the right to own a machinegun, he is seeking to support the argument that they fall into the category of "limited narrowly tailored specific exceptions". But the Attorney General clearly has his eye on the long run and hopes to lay the basis for a subsequent challenge.

In putting down a marker, he is also reminding the administration's radical conservative activist base that he is still very much one of them.