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DOJ Reaffirms Constitution Protects Individual Right to Arms

Friday, May 10, 2002

U.S. Solicitor General Theodore B. Olson sent gun-ban extremists into a state of virtual "collective" apoplexy when he submitted the federal government’s briefs in two cases that are up for consideration by the Supreme Court of the United States. Why? Because the filings state the federal government holds the accurate view that the Second Amendment protects an individual right. This position was also spelled out last year in a letter from U.S. Attorney General John Ashcroft to then-NRA-ILA Executive Director James Jay Baker (the Ashcroft letter was also included with Olson’s filings), and represents a complete reversal of the Clinton-Gore Administration’s fabrication that the Second Amendment protects a "collective" right of states to maintain militias.

Olson—whose position as Solicitor General requires him to defend federal laws when they are challenged in the courts—asked the Supreme Court to deny certiorari (decline to review) to two firearm-related cases—U.S. v. Emerson and U.S. v. Haney. And while the briefs in both cases clearly reaffirmed that the Second Amendment protects an individual right, Olson also argued that the laws under review are constitutional. This position is based on the government’s view that the Second Amendment allows "reasonable restrictions designed to prevent possession [of firearms] by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." Olson also clearly stated the Department of Justice (DOJ) will continue to defend "all existing federal firearms laws," and explains the DOJ "has a solemn obligation both to enforce federal laws and to respect the constitutional rights guaranteed to Americans."

Anti-gun extremists have reacted to Olson’s filings with the expected wailing. Michael Barnes, President of the gun-ban lobby formerly known as HCI, complained that an "extreme ideology on guns has now become government policy." He failed to explain how the Bush Administration’s position is "extreme" when it mirrors the belief of the vast majority of the American people.

U.S. Senator Charles Schumer (D-N.Y.), who claims to support the individual right to bear arms, complained that the DOJ acted "without any consultation, any notice, any discussion"—apparently implying he feels the DOJ should report to the U.S. Senate, rather than the White House—then stated he feared that anti-gun laws at the state level may suffer as a consequence. He railed, "[I]f New York City had Arizona’s gun laws, Times Square would look like the OK Corral." Schumer seems to forget that Arizona, with firearm laws that are far less restrictive than those of New York City, has much less violent crime. Is the New York senator asserting that his constituents are not as responsible or law-abiding as the citizens of Arizona?

The radical Violence Policy Center (VPC)—a shrill outspoken advocate of banning all hand-guns—went a step farther. It convinced an attorney from a prestigious New York law firm to write to Olson, objecting to the DOJ mentioning anything about the Second Amendment protecting an individual right. The VPC was so eager to protest that the 15-page letter was sent before Olson’s briefs were made public. And while Matt Nosanchuk, the VPC’s Litigation Director and Legislative Counsel, claimed the organization was simply "anticipating" what Olson might do, it is important to note that Nosanchuk previously served in the DOJ under Bill Clinton and Al Gore, and was likely given advance warning via a leak from career DOJ employees who still support the anti-gun policies of the previous administration. It appears VPC in all likelihood improperly obtained advance copies of the briefs—still further proof this group is willing to illegitimately manipulate the resources of our government to advance its gun-ban agenda.

The anti-gun organization that calls itself "Americans for Gun Safety" (AGS) has been far less vocal about the recent actions of the DOJ, in large part because it was too busy launching a deceptive ad campaign aimed at abolishing traditional American gun shows. But perhaps the lack of an AGS position on the DOJ’s most recent actions are also part of a carefully calculated strategy to continue to mislead the general public as to its true intentions. The group has tried to separate itself from other anti-gun organizations by claiming it supports the right to own firearms, so one would think it would leap at the opportunity to praise the DOJ’s position. But Newsday reported AGS spokesman Matthew Bennet (formerly an aide in the Clinton White House) was concerned the briefs "raise questions about the enforceability of gun laws and, importantly, leaves open the question about whether new gun laws could be enforced." It will be interesting to see if AGS remains relatively silent on the DOJ’s actions in order to continue the charade that it supports the rights of law-abiding gun owners, or if it will choose to expose its true anti-gun agenda by condemning the government’s position that the Second Amendment protects an individual right.

Ultimately, what Olson’s briefs will mean to the overall debate over gun control remains to be seen. NRA-ILA Executive Director Chris Cox cautioned that it is too early to tell what the impact on existing laws will be, but also stated, "[O]bviously we’re pleased by this. This is a very good start." And most constitutional and legal experts concur. George Mason University Professor Nelson Lund told the Washington Times, "The decision seems largely symbolic. We don’t have any way of knowing whether it’s going to have any practical effect at all. If so, it will be quite some time before we see an effect." Attorney Stephen Halbrook, who successfully argued a challenge to the Brady Act before the Supreme Court, told the Times, "No court is going to be persuaded because the government says [supporting the individual right to arms is] their policy. It’s what they’ve got to back it up that matters."

But make no mistake, Olson’s filing is a welcome sign that the DOJ will support and view the Second Amendment as our Founding Fathers had originally intended—a protection of an individual right to arms. Chris Cox told the LA Times, "It should come as no surprise that this attorney general has followed through on his correct interpretation that the Second Amendment is an individual right, following through not only in word but in deed."

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.