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What's behind the Ashcroft shift

By Dr. Michael S. Brown
web posted May 13, 2002

Attorney General John AshcroftLast Monday, the Justice Department, at the direction of Attorney General John Ashcroft, informed the Supreme Court that the official government interpretation of the Second Amendment had changed.

The government now believes the Second Amendment protects an individual right to keep and bear arms. This restores the government position to its original status prior to 1939 and was immediately followed by ritual posturing from activists on both sides of the gun debate.

The anti-gun lobby loves the theory that the right to keep and bear arms is not an individual right, as are all the others mentioned in the Bill of Rights. In a tortuous revision of history, they claim it only applies to the collective rights of state governments.

Legions of legal scholars have been coming out against this non-intuitive interpretation for the last two decades and the gun haters are terrified that their carefully manufactured, but indefensible position will finally collapse like a house of cards.

Pro-gun activists are upset that the Justice Department qualified their support for individual rights by stating that the government can determine who is fit to own a gun and what kinds of guns are acceptable.

Their anger was tempered by their enjoyment of the hysterical reaction from the elite media. The amazing statements contained in many media articles and editorials betray a startling ignorance of the facts.

A brief look at history should put this in context. Prior to 1939, the right to keep and bear arms was universally understood as a basic human right. For Americans, this belief was so strong that there was little mention made of it. There was no more reason to argue in favor of the Second Amendment than there was to argue that the sky was blue or the earth round.

The earliest gun control laws, in the post-civil war era, met little resistance, because they were only directed at blacks. They required gun permits issued by white sheriffs and prohibited "Saturday Night Specials" that blacks could afford. Versions of these racist laws are still in effect in some states and are popular with the anti-gun lobby.

New York's Sullivan Law of 1911 also required a permit to own a gun. It was only applied to immigrants, who threatened the societal status quo. Lacking political power of their own, they were helpless to oppose the law.

The first federal gun control law was passed in 1934 to keep certain types of guns away from immigrants, communists and union organizers. Like many federal laws passed at the time, it was widely thought to be an unconstitutional expansion of federal power.

The legal turning point occurred in 1939 when the infamous Miller case came before the Supreme Court. No argument was offered on behalf of Mr. Miller, who was conveniently deceased at the time, so the court had no choice but to find in favor of the government.

The case was a setup, intended to protect the unconstitutional law passed in 1934. The justices tried to limit the damage by confining their opinion to a very specific issue, but the case has been abused and distorted beyond recognition by judges and prosecutors. It is often misrepresented in publications with an anti-gun bias.

A classic example of this occurred last Wednesday in the New York Times. Here is a quote from the Times article about the Justice Department controversy:

"The court's view has been that the Second Amendment protects only those rights that have 'some reasonable relationship to the preservation of the efficiency of a well regulated militia,' as the court put it in its last word on the subject, a 1939 decision called United States v. Miller."

Here is the full sentence from the Miller opinion. Remember that nobody showed up in court to defend Miller when you read the first phrase, "In the absence of any evidence." The justices meant exactly that.

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

What the court really said in 1939 is that the Second Amendment protects only weapons suitable for military use. Today that would include M16s and other serious hardware. If Miller were interpreted literally, many current gun laws could be reversed.

Understandably reluctant to follow this directive, lower courts developed their own local interpretations. Given the elite position that judges hold in society, it is no surprise that they generally dislike the idea of guns in the hands of ordinary folk.

The Supreme Court has been silent for the last sixty-two years, permitting the development of our current crazy patchwork of conflicting, illogical, unpopular, inequitable and counterproductive gun laws. None have ever been proven to reduce violence and many scholars say they make things worse.

Attorney General Ashcroft deserves credit for taking a first small step toward re-establishing a logical legal base for America's gun laws.

Dr. Michael S. Brown is a member of Doctors for Sensible Gun Laws and may be reached at rkba2000@yahoo.com.

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