Gun control advocates have long argued that the Second Amendment does not guarantee an individual right to keep and bear arms. They have invested much effort in trying to make this position seem credible because they assumed that such a constitutional right would be a formidable obstacle to laws aimed at restricting gun ownership. But it is starting to look like their fears were overblown.
Last year, in United States v. Emerson, the U.S. Court of Appeals for the 5th Circuit carefully considered the Second Amendment's wording, history, and constitutional context. "All the evidence," the court concluded, "indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans." The 5th Circuit nevertheless upheld a federal law that forbids people subject to protective injunctions from possessing firearms, finding that "limited, narrowly tailored specific exceptions or restrictions" do not violate the Second Amendment.
In two recent briefs urging the U.S. Supreme Court not to hear the appeal from the Emerson decision or from a 10th Circuit ruling involving machine gun possession, the Justice Department endorses the 5th Circuit's approach. The brief in the machine gun case says, "The government agrees that the Fifth Circuit's decision in Emerson reflects a sounder understanding of the scope and purpose of the Second Amendment than does the court of appeals' decision in the instant case" (which held that the amendment protects only a state's right to maintain a militia). But the Justice Department argues that the federal ban on machine guns is the sort of restriction the 5th Circuit would approve.
Appended to both briefs was a November 9 memo in which Attorney General John Ashcroft told federal prosecutors, "In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment." At the same time, Ashcroft emphasized that "the existence of this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse." Ashcroft's definition of "reasonable restrictions" seems pretty broad. "The Department can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws," he wrote.
Gun controllers may find it easier to live with the Second Amendment than they thought.