Attorney General John Ash-croft has drawn harsh criticism from anti-gun activists for noting that the Second Amendment guarantees an individual right to keep and bear arms. Blinded by their outrage, activists have failed to notice that his position, even if adopted by the U.S. Supreme Court, is not likely to have practical consequences anytime soon.
In a November memo to federal prosecutors, Ashcroft endorsed United States v. Emerson, an October decision in which 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." The Justice Department appended Ashcroft's memo to Supreme Court briefs it filed in May.
But those briefs urged the Supreme Court not to hear appeals from two decisions that rejected challenges to gun control laws. In fact, one of the cases was Emerson, in which the 5th Circuit upheld a federal law that prohibits gun ownership by people subject to restraining orders. 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.
Gun controllers may find it easier to live with the Second Amendment than they thought.