Court Rejects Gun Appeals Cases
ANNE GEARAN
Associated Press Writer
WASHINGTON (AP) - The Supreme Court said Monday it will not hear two cases
that would have tested the Bush administration's newly articulated position
that the Constitution protects an individual's right to own guns.
Without comment, the court turned down two men convicted of violating
federal gun laws. The men had argued that the laws are unconstitutional
because the Second Amendment gives Americans the right to "keep and bear
arms."
The cases marked the first time that the Bush administration had told the
Supreme Court that it has reversed a decades-old policy on the Second
Amendment. Until now, the government has said the amendment protects a
collective, not an individual, right to gun ownership.
The distinction is important, because gun laws necessarily restrict
individual rights.
The administration also said its new position does not undermine federal gun
laws, because the Second Amendment right is still subject to "reasonable
restrictions."
Using that rationale, the administration urged the high court not to accept
the appeals of Timothy Joe Emerson and John Lee Haney. Both were properly
charged under laws the administration considers reasonable limitations of
the gun right, Solicitor General Theodore Olson said.
The Second Amendment reads, "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."
The Supreme Court interpreted that in 1939 as a protection of militia
rights, not of individual ones. Decades of Justice Department policy rested
on that interpretation, which preceded most federal laws regulating who may
own what type of gun.
"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," Olson wrote in footnotes
attached to filings in the Emerson and Haney cases.
That right, however, 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," Olson wrote
last month.
Olson, the administration's top Supreme Court lawyer, was reflecting a view
that Attorney General John Ashcroft had voiced last year in a letter to the
National Rifle Association.
"The text and the original intent of the Second Amendment clearly protect
the right of individuals to keep and bear arms," Ashcroft wrote then.
At the time Ashcroft wrote the letter, it was unclear whether he was
expressing his personal view or stating a new policy position for the
government.
That question was mostly answered last November, when he sent a letter to
federal prosecutors praising an appeals court decision that found "the
Second Amendment does protect individual rights" but noting that those
rights could be subject to "limited, narrowly tailored specific exceptions."
That opinion by the 5th U.S. Circuit Court of Appeals went on to reject
arguments from Emerson, a Texas physician, that a 1994 federal gun law was
unconstitutional. The law was intended to deny guns to people under judicial
restraining orders.
"In my view, the Emerson opinion, and the balance it strikes, generally
reflect the correct understanding of the Second Amendment," Ashcroft told
prosecutors.
The appeals put the Justice Department in an awkward position. Although the
government won both cases in lower courts using the old interpretation of
the Second Amendment, Ashcroft had switched gears by the time the appeals
reached the high court.
The cases are Emerson v. United States, 01-8780 and Haney v. United States,
01-8272.
