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Commentary: The government and gun rights

More than five years ago, on May 6, 2002, the U.S. government told the Supreme Court — for the first time — that it had changed its decades-long position on gun rights. In footnotes dropped into two documents urging the Court not to hear two Second Amendment cases, the U.S. Solicitor General (then Theodore B. Olson) formally put before the Justices the government’s new support for an individual right to have guns for private use.

The footnote recalled that the government had previously argued in court filings that the Second Amendment “protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia.” But it then added: “The current policy of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any military or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of firearms that are particularly suited to criminal misuse.”

Attached to the brief was a copy of a November 9, 2001, memo by Attorney General John Ashcroft to all U.S. attorneys outlining the changed position. (Ashcroft in May 2001 had already made his views known in a letter to the the National Rifle Association, saying “let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms….I believe it is clear that the Constitution protects the private ownership of firearms for lawful purposes.”)

Those statements were included in briefs in opposition to Haney v. U.S. (docket 01-8272) and Emerson v. U.S. (01-8780). The Court denied review of both, without comment, on June 10 of that year.

Now that the Supreme Court has finally accepted for review the issue raised in those and other unsuccessful appeals, the question immediately arises whether the Justice Department will join in the new case — District of Columbia v. Heller (07-290) — granted review on Tuesday.

Because the Heller case seeks to test the meaning of the Amendment as it applies to a federal entity — the District of Columbia, it would appear that the outcome of the case would have a direct bearing on the constitutionality of an array of federal gun control laws. That is more than enough of a governmental interest to justify a brief on the merits stating the government’s current view. But will it?

The government did not file any brief when the Heller case was in the D.C. Circuit Court, nor did it join in the case as the Supreme Court pondered whether to hear it. But now that the case is on the Supreme Court’s docket for decision, it has vastly greater potential significance — legal and political.

In strictly legal terms, the Department presumably has an interest in assuring that, even if the case results in a decision in favor of an individual right to have a gun, it leaves room for “reasonable” controls on gun possession and use. While state governments are likely to make the same point in coming amicus briefs (as four of them did at the petition stage), only the Solicitor General could make that argument on behalf of federal legislation.

In political terms, the briefing in the Heller case will be unfolding as the new presidential election season begins to intensify, almost surely making gun control into a campaign issue.

The District of Columbia’s opening brief is due in 45 days — that is, the first week in January. If the government is to get into the case as an amicus on the side of those claiming an individual right to guns, its brief would be due by the second week in February. The case is expected to be scheduled for oral argument in the week of March 17. If the government moves into the case (it does not have to have the Court’s permission to file an amicus brief), it very likely would ask for some of the argument time.

The Bush Administration has been very close to the gun rights community — indeed, gun rights advocates, including the NRA, were strong supporters of George W. Bush for the presidency, and they claimed a major share of the credit after he was elected. In fact, high-level NRA officials said after the election that they expected to have special influence at the White House.

If the question of the Solicitor General taking part in the case is seen as a matter of protecting the federal interest in “reasonable” gun control, then it might not become a major political issue as the Department decides whether to get involved. But if the White House were to make it into a political question, that might raise some difficult moments for the new Attorney General, Michael B. Mukasey, who has vowed political independence from White House influence.