Ashcroft`s Second Amendment May Have Large Loophole

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
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

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.



31, 2001