Second Reading

The debate over the right to keep and bear arms is only beginning.


Did Attorney General John Ashcroft provide ammunition to a Taliban fighter? That is the thrust of a story that appeared in The New York Times on May 16 under the headline, "Lindh Wants Charge Dropped Using Justice Dept. Argument."

John Walker Lindh's lawyers argue that punishing him for carrying a gun in Afghanistan would violate his Second Amendment right to keep and bear arms. They note that the Justice Department has taken the position that the amendment applies to individuals.

But Lindh's lawyers also argue that charging him with supporting foreign terrorist organizations violates his First Amendment right to freedom of association. Oddly, the headline in the Times did not read, "Lindh Wants Charges Dropped Using ACLU Argument."

The decision to play up the Second Amendment angle suggests that the Times is eager to highlight the dire consequences of taking gun rights seriously. Only a week before, in a front-page story, the paper had warned that Ashcroft was "reversing decades of official government policy on the meaning of the Second Amendment."

For many years gun control advocates have argued that the right to keep and bear arms is no more relevant to contemporary policy debates than the right to keep soldiers from living in your house during peacetime. But just when they had gotten used to treating the Second Amendment like a buried relic, it began to surface in some alarming places.

Last year, for example, the U.S. Court of Appeals for the 5th Circuit concluded that "the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans." Attorney General John Ashcroft endorsed this position in a November 9 memo to federal prosecutors.

That memo was appended to two Supreme Court briefs filed by the Justice Department this month. In one of them, Solicitor General Theodore Olson said the 5th Circuit's decision "reflects a sounder understanding of the scope and purpose of the Second Amendment" than the position favored by anti-gun activists, who say the Framers only meant to protect a state's right to maintain a militia.

Having struggled for so long to make this position seem credible, despite a mountain of historical evidence to the contrary, gun controllers are understandably dismayed at the possibility that the Justice Department will persuade the Supreme Court to reject it once and for all. But they may find it easier to live with the Second Amendment than they thought.

The 5th Circuit's recognition of a constitutional right to own a gun did not stop it from upholding a federal law that strips people of this right when they are subject to a restraining order. The man who challenged the law was a Texas physician going through an acrimonious divorce, and the court found that the possibility of violence was sufficient, "though likely barely so," to justify the restriction.

More generally, the court said "limited, narrowly tailored specific exceptions or restrictions for particular cases" may be consistent with the Second Amendment. Ashcroft's memo likewise 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.

Among other things, this means Ashcroft considers the federal ban on "assault weapons," which targets guns based on their scary looks, a reasonable restriction. Presumably, an equally arbitrary federal ban on "Saturday night specials" (inexpensive handguns) also would meet his standard.

Evidently, the Brady Law, which requires Americans to get clearance from the police before exercising their constitutional rights, is a reasonable restriction. Perhaps federal licensing and registration would pass muster too.

I once asked Ira Glasser, then the ACLU's executive director, why his organization did not seem interested in defending the Second Amendment. He surprised me by saying that he believed the amendment applied to individuals.

But Glasser quickly added that the right to keep and bear arms did not rule out all forms of gun control. In fact, he was hard pressed to say what kind of gun control it did rule out.

I should have realized then what is clear now: Bringing the Second Amendment back from legal oblivion is only the beginning of the debate.