Statement of Violence Policy Center in Response to D.C. Gun Crime Defendants Using U.S. Department of Justice Second Amendment Policy Shift to Strike Down Gun Laws

The Washington Post reported May 30, 2002, that criminal defendants in Washington, D.C. are seeking to have the District's gun laws declared unconstitutional on Second Amendment grounds. The defendants are relying on the 180-degree shift in the Department of Justice's interpretation of the Second Amendment that was announced May 6, 2002 in briefs filed in the U.S. Supreme Court. Mathew Nosanchuk, the Violence Policy Center's litigation director and legislative counsel, issued the following statement:

"When Solicitor General Theodore Olson filed briefs in the Supreme Court embracing the expansive individual rights interpretation of the Second Amendment, we warned that the primary beneficiaries of the Ashcroft Justice Department's novel interpretation would be criminal defendants. An expansive individual right under the Second Amendment simply is not supported by history of the Constitution or binding Supreme Court precedent and threatens to undermine the Justice Department's enforcement of existing gun laws.

"Now, the chickens have come home to roost. As the Washington Post today reported, the defendants are charged in separate cases with unlawful possession of a handgun and ammunition respectively. They both rely explicitly on the Justice Department's briefs�and a memorandum from Attorney General Ashcroft to all 93 U.S. Attorneys in which he directs them to follow his interpretation of the Second Amendment�to support their Second Amendment challenges to the District's gun laws. According to the brief in one of the cases: �As made clear by the various government representations, the United States now understands and represents before tribunals that the Second Amendment right to bear arms is an individual and personal right, not a collective right of the state to form a militia.' On this basis, the defendants seek to have the District's laws, which impose a virtual ban on the private possession of handguns and ammunition, struck down.

"The reliance by criminal defendants on the Justice Department's new position puts the lie to the Justice Department's claim that it can be tough on gun crime and soft on the Second Amendment. Instead of promoting some abstract concept of constitutional law to score political points with the gun lobby, the Ashcroft Justice Department is handing criminal defendants arguments that will used to invalidate gun laws. The real-world implications of the Department's position make it clear that the Department will have to choose: protect public safety and security or implement an expansive individual rights interpretation of the Second Amendment that gun criminals will use to their advantage."

The Violence Policy Center is a national non-profit educational foundation that conducts research on violence in America and works to develop violence-reduction policies and proposals. The Center examines the role of firearms in America, conducts research on firearms violence, and explores new ways to decrease firearm-related death and injury.