Summary of Violence Policy Center Letter To Solicitor General Ted Olson Regarding Interpretation of the Second Amendment

Ever since the Violence Policy Center (VPC) made public Attorney General John Ashcroft's letter to the National Rifle Association (NRA) supporting a novel interpretation of the Second Amendment, the VPC has closely monitored Attorney General Ashcroft's efforts to transform his personal views regarding the scope of the right protected by the Second Amendment into official Justice Department policy. For more than 60 years, the Justice Department has argued to the Supreme Court that the Second Amendment does not secure an expansive individual right. In his May 2001 letter to the NRA, Attorney General Ashcroft reversed the position, stating that "the text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."

On May 2, 2002, Andrew Frey of Mayer, Brown, Rowe & Maw, one of the nation's leading Supreme Court lawyers and a former Deputy Solicitor General in the Department of Justice, wrote to Solicitor General Ted Olson on behalf of the VPC urging him not to abandon the Department's long-standing interpretation of the Second Amendment in its pleadings in U.S. v. Emerson and U.S. v. Haney, now pending before the Supreme Court. Key points of the 15-page letter include the following:

• "A change in position at this point, especially a gratuitous one where ample grounds exist to defeat the petitions without taking a position on the more contentious Second Amendment issues, would inevitably appear to be a politically motivated action and would impair the credibility of your Office before the Court and in the eyes of the public."
  
  
• The U.S. Court of Appeals for the Fifth Circuit in its decision in the Emerson case tried to have it both ways, rejecting a constitutional challenge to the Gun Control Act's protective order gun ban, but also including "extensive dicta" recognizing the Second Amendment as protecting an expansive individual right�dicta that was "unnecessary to the court's decision, and is inconsistent with a long line of decisions of the Supreme Court."
  
  
• For more than 60 years, the Justice Department has consistently argued to the Supreme Court that the Second Amendment does not secure an expansive individual right. The Department did so in the leading Supreme Court case of U.S. v. Miller (1939). In Miller, the Supreme Court adopted the government's position that the Second Amendment does not guarantee an individual right to keep and bear arms independent of service in a well regulated state militia. Miller remains good law to this very day.
  
  Since Miller, the government (regardless of the sitting President's political party) has routinely employed the Court's analysis of the Second Amendment to defeat numerous Second Amendment challenges to federal firearms regulations. For example, it did so in a 1986 Supreme Court brief by Reagan Administration Solicitor General Charles Fried, as well as in numerous recent Supreme Court briefs stating in no uncertain terms that "Miller remains good law and confines the Second Amendment's domain to militia-based activities."
  
  The government also made this argument in scores of briefs filed in courts of appeals, including in the Emerson case in the federal court of appeals. In numerous cases, the Supreme Court has denied review in Second Amendment cases without even asking for a response from the Solicitor General.
  
  
• Because the government succeeded in defeating Emerson's Second Amendment claim in the court of appeals and is opposing review by the Supreme Court, "it would be capricious...for the government to espouse an entirely inconsistent approach to the Second Amendment in opposition to Emerson's petition for certiorari."
  
  
• Such a change of position would "abandon a long-standing and consistent stance" and "it would declare (gratuitously) that the legislative power of the United States is materially constrained in an area of great public importance and high political content."
  
  
• Absent the "most compelling" circumstances, the Attorney General's personal views should remain his views, "not a thirteenth-hour revision of the official position of the United States."
  
  
• Attorney General Ashcroft wrongly suggested in his letter to the NRA that the "individual rights view is embraced by the preponderance of legal scholarship on the subject." In fact, while there are numerous law professors on each side of the issue, historians are virtually unanimous in rejecting the individual rights interpretation. In addition, there is very recent, important scholarship endorsing the militia-based interpretation of the Amendment, including work by Pulitzer Prize winning historian Jack Rakove. Rakove and others have demonstrated decisively that the historical record provides scant support for the expansive individual-rights interpretation of the Second Amendment.
  
  
• There is no support for the expansive individual rights position in the case law. In addition to U.S. v. Miller, the Supreme Court's 1980 decision in Lewis v. United States concluded that firearms restrictions "do not trench upon any constitutionally protected liberties." In case after case, lower courts have reaffirmed that the Second Amendment does not confer an individual right to keep and bear arms unrelated to the maintenance of a state militia. The court in Emerson ignored this large body of precedent.
  
  
• Prosecuting gun crimes would be made increasingly difficult in the wake of a policy change by the government. The Department's prosecutorial efforts would be needlessly complicated if the federal government endorses an expansive individual rights interpretation. A person accused of violating federal laws will argue that he was merely exercising his Second Amendment rights.
  
  
• The United States could have argued that Emerson's petition for review be denied simply by suggesting that the case is premature because Emerson has yet to go to trial and there is no conflict among the circuits: "To address the lower court's discussion of the Second Amendment, other than to mention briefly that it is dictum unsupported by case law or history, would be a dubious exercise of the responsibilities of your Office," the VPC letter states.
  
  
• The expansive individual right recognized in Emerson "is not consistent with the historical record, and certainly not compelled by it." The Solicitor General cannot properly "ignore or discard the hefty mass of contrary precedent and recent scholarship."

In conclusion, the VPC argued that "abandonment at this time of the government's long-standing position on this issue is fraught with peril for the credibility of your Office and the administration in the eyes of the public and the Supreme Court."