Ashcroft Interprets 2nd Amendment

Attorney General John Ashcroft. AP

Attorney General John Ashcroft reaffirmed his view that an individual's right to bear arms is guaranteed by the Constitution in response to an inquiry by the National Rifle Association.

"While some have argued that the Second Amendment guarantees only a 'collective' right of the States to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," he said.

Ashcroft reiterated his position in a letter May 17 to NRA executive director James Jay Baker. The NRA, the largest lobbying group representing the interests of gun owners, had written Ashcroft in April, asking him whether he believed that the Second Amendment guarantees an individual right to keep and bear arms.

Gun rights advocates had accused the Clinton administration of trying to undermine Second Amendment rights, pointing to arguments government lawyers made in a federal lawsuit against Timothy Joe Emerson, a Texas man who had been indicted for violating a 1994 law barring people under restraining orders from having guns.

Emerson argued that the 1994 law violated his Second Amendment rights. A Republican-appointed judge agreed and dismissed the charges. The Justice Department appealed, arguing that the Second Amendment does not extend an individual right to keep and bear arms.

In a letter last August, former Solicitor General Seth Waxman said that government lawyers "did indeed take the position that the Second Amendment does not extend an individual right to keep and bear arms."

"That position is consistent with the view of the Amendment taken both by the federal appellate courts and successive administrations," Waxman wrote.

Waxman said the Supreme Court and eight appellate courts "have uniformly rejected arguments that it extends firearms rights to individuals independent of the collective need to ensure a well-regulated militia."

In his letter to the NRA, Ashcroft took the opposite view, saying that that in decisions dating back to 1890s, the Supreme Court "routinely indicated that the right protected by the Second Amendment applied to individuals."

More recently, he said, the U.S. Attorney General in 1934 adopted this view, as did Congress and President Ronald Reagan in 1986.

During his confirmation, Ashcroft said he supported the right to bear arms for citizens but added, "I don't believe the Second Amendment to be one that forbids any regulation of guns." He said he supports child safety locks and a ban on assault weapons.

In the letter, Ashcroft declined to comment on the Emerson case. Justice Department officials, speaking on condition of anonymity, said the department does not plan to make additional arguments in the case, which is pending before a three-judge appellate panel.

Government lawyers would look at the panel's ruling before deciding whether to appeal to the Supreme Court, officials said, adding that Ashcroft thinks the 1994 law is a reasonable restraint on Second Amendment rights.

Baker said he NRA always asks new administrations to state a position on the Second Amendment. He characterized his letter to Ashcroft as routine.

"We always ask the new folks to give their opinion on what the Second Amendment means," said Baker.

Ashcroft's answer pleased the NRA.

"It was clear from the campaign and from Ashcroft's letter that the Bush administration respects the individual right embodied in the Second Amendment," said Baker.

Mindy Tucker, Ashcroft's spokeswoman, said Ashcroft, in his letter to the NRA, was reaffirming his support of the right to own guns.

"It was simply him stating the position of the Justice Department which is consistent with that of past administrations, both Republican and Democrat," said Tucker.

The NRA supported President George W. Bush during last year's election, pouring over $1 million into his campaign.

Mr. Bush and Ashcroft advocate better enforcement of existing gun laws as opposed to adopting new gun legislation. Last week the administration unveiled plans to mobilize federal and local prosecutors who will focus exclusively on gun-related crimes.





By KAREN GULLO
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  • CBSNews.com staff CBSNews.com staff

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