Ashcroft's Second Amendment May Have Large Loophole
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A tip of the hat to Attorney General John Ashcroft, who in a letter to the National Rifle Association makes clear that the Second Amendment is back in the Constitution this week. What's in the Constitution and what isn't varies, you know, depending on which gaggle of politicos happens to get hold of the document. But back during the dark age of Bill Clinton, the right to keep and bear arms definitely wasn't there.

In his May 17 letter to the executive director of the NRA, Mr. Ashcroft stated plainly that "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms. 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." The NRA itself could not have put it any more clearly.

The Second Amendment states, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." The issue is whether the language means that individuals can keep and bear arms or only the states. Among the "some" in Mr. Ashcroft's letter who have claimed that only the states have the "collective" right to keep and bear arms was the Clinton administration.

If that were true, then gun control laws, state or federal, that forbid individual ownership of firearms wouldn't violate the amendment. And, if individual ownership is what the Second Amendment guarantees, then such gun control laws are unconstitutional. That's what worries the gun gestapo, which greeted the Ashcroft letter with its usual whoops and whines.

"This is a monumental and dangerous change," panted a spokesman for Handgun Control, Inc. (The Washington Post, May 24). "This goes against established precedent." It might mean "a massive shift in how federal gun laws might be interpreted," said another spokesman for the Violence Policy Center, which is generally unconcerned about violence when committed against the law-abiding.

What they're worried about is that the NRA and similar groups will now bring litigation against gun control laws and gut them as unconstitutional. That's not a bad idea, but the NRA says it has no plans to do so. Moreover, as one of the nation's staunchest defenders of gun rights, Larry Pratt of Gun Owners of America, pointed out, Mr. Ashcroft left himself a loophole.

Mr. Ashcroft, of course, often leaves himself loopholes, which is why he gets only a tip of the hat for his letter and not a 21 individually-owned guns salute. The loophole in this case is that he also said in his letter that Congress has the right to enact gun control laws "for compelling state interests." That language renders what he says he believes about the Second Amendment all but meaningless.

You can cite "compelling state interest" to justify just about any gun control law on the books, most that aren't on the books, and even laws that would confiscate privately owned guns outright. After all, if the Congress or Mr. Ashcroft or the president or the Supreme Court or somebody declared that there is a "compelling state interest" in forbidding individuals from owning firearms, who or what is there to say otherwise?

The case for the individual right to keep and bear arms is all but overwhelming. Those who took that position include not only most of the republican political theorists who influenced the drafters of the Constitution and the Bill of Rights but also the mainstream of contemporary legal and historical scholarship. The essence of the theory is that the right to keep and bear arms is "necessary to the security of a free state" precisely because the militia could resist the government itself, and it couldn't resist the government if only the government had the guns. Only if individual citizens could keep their own weapons could they expect to keep their state free.

The main text of Mr. Ashcroft's letter is therefore unexceptionable. It's the loophole that may cause a problem, and it's the loophole that has no basis whatsoever in American constitutional law, history or political theory. As Mr. Pratt says, "that was not the intent of the founding fathers. The Second Amendment means no gun control and all gun control laws are unconstitutional." If Mr. Ashcroft believes otherwise, he ought to explain why.

The mere existence of the Ashcroft loophole is worrisome and should be to the millions of American gun owners who supported the Bush ticket because of its commitment to the right to keep and bear arms. If that commitment was less than what it seemed to be, maybe the Constitution under Mr. Bush's gaggle of politicos is not really so different from what it was under Mr. Clinton's.



May 31, 2001

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