WHAT'S WRONG WITH THE JUSTICE DEPARTMENT'S NEW POSITION ON THE RIGHT TO BEAR ARMS -- AND WHAT ISN'T

By MICHAEL C. DORF

Wednesday, May. 15, 2002

In two recently filed briefs in the United States Supreme Court, Solicitor General Theodore Olson told the Court that the Justice Department had reversed its longstanding position on the Second Amendment.

Prior Republican and Democratic Administrations alike had endorsed the view that the right to bear arms protected by the Second Amendment is a right of states to organize their militias, and not a right of individual citizens, outside state militias, to gun ownership. However, two identical footnotes in the two briefs Olson submitted take a sharply different position.

Olson's footnotes state: "The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

In other words, under the Administration's new view, the federal government simply lacks the power to regulate most gun-ownership by law-abiding citizens. Pursuant to this view, many provisions of federal law, including those enacted as part of the Brady Handgun Violence Prevention Act, are void as unconstitutional.

Perhaps the Justice Department's view would not have such far-reaching consequences if a handgun were deemed the kind of firearm that is described in the footnote as "particularly suited to criminal misuse." However, Olson probably did not intend this language to create such a broad exception to the general right. Rather, he probably had something like automatic weapons and armor-piercing ammunition in mind.

Moreover, the Justice Department may mean its interpretation of the Second Amendment to limit not only the federal government, but also the states. To adopt that position, the Supreme Court would have to overrule its 1886 decision in Presser v. Illinois. If the Court did so, its ruling would have very far-reaching consequences indeed, because the strictest gun control laws are enacted at the state and local level.

Given these stakes, it is hardly surprising that the Justice Department's about-face has sparked renewed debate over what the Second Amendment means. The now-famous footnote has also led to criticism of the manner in which the Department has gone about changing policy. Most of that criticism, however, is undeserved.

The Cases, and Contexts, In Which the Footnote Appears

The Justice Department's controversial footnote appears in briefs in opposition to petitions for writs of certiorari - that is, requests that the Supreme Court hear appeals - in two cases.

The cases are Haney v. United States and Emerson v. United States. The Justice Department does not believe either case should be heard, for it agrees with the decisions of the Tenth and Fifth Circuits, respectively, in each case.

In Haney, the United States Court of Appeals for the Tenth Circuit upheld the conviction of an Oklahoma man who had walked into a police station and confessed to owning two unlicensed machine guns in violation of federal law. The Tenth Circuit rejected Haney's contention that he was entitled to possess these weapons under the Second Amendment. In so holding, it relied on its own and Supreme Court precedents that restrict the Amendment's application to cases involving state-organized militias.

In its footnote, the Justice Department disagreed with the Tenth Circuit's ruling that the Second Amendment applies only to militias, and not individuals. However, the Department nevertheless agreed with the lower court's decision to uphold Haney's conviction. That makes sense, since Haney's machine guns are "particularly suited to criminal misuse" and thus, in the Department's view, probably not the kind of guns an individual has a Second Amendment right to possess.

In Emerson, the United States Court of Appeals for the Fifth Circuit upheld the conviction of a Texas man who was convicted of possessing a firearm after having been ordered not to threaten or harm his daughter or his estranged wife. Emerson argued that the federal law criminalizing firearms possession under such circumstances violated his rights under the Second Amendment.

In a lengthy opinion, the Fifth Circuit endorsed the claim that the Second Amendment protects an individual right to firearm possession, but went on to find that the government interest in keeping firearms out of the hands of dangerous people just barely justified overriding Emerson's rights.

Here, the Justice Department appeared to agree with both major points of the lower court's analysis. In the footnote, it expressed the view that the Second Amendment protects an individual right to firearm possession. And like the lower court, it also appeared to deem Emerson, in the footnote's language, an "unfit person[]," who may be denied the right to firearms consistent with the Amendment.

The Merits of the Second Amendment Issue: A Heated, Ongoing Debate

In a column that appeared shortly after the Fifth Circuit's decision in Emerson, I argued that the court got it wrong. The people who drafted and ratified the Bill of Rights worried that the federal government would create a large standing army. By preserving state militias, they hoped to limit federal reliance on standing armies. Although it is possible to read the Second Amendment as protecting an individual right of firearm possession unconnected with the militia, in light of its text, original understanding, and subsequent development, in my view that is not the best reading.

Others--including the Fifth Circuit, the Bush Justice Department, some scholars, and a large number of readers who sent me polite and not-so-polite emails--disagree. That, of course, is their right under the Second Amendment's neighbor, the First Amendment. The debate over how to interpret the Second Amendment will continue as long as there are divisions over gun control, for in America, policy questions are frequently framed and discussed in constitutional terms.

Not all of the criticism of the Justice Department has been couched as disagreement over how to interpret the Second Amendment, however. The Department has also been charged with a variety of procedural irregularities. Are these charges fair? Mostly they are not.

Abandoning the Role of Zealous Prosecutor? An Unfair Criticism.

Some commentators have questioned whether it is appropriate for the Justice Department--the federal agency charged with the duty to enforce the criminal law--to be arguing that a power claimed by Congress (here, the power to regulate firearms) is unconstitutional.

Under this view, the job of the prosecutor is to be a zealous advocate for law enforcement. Leave it to the defense bar to raise constitutional objections and attempt to protect individual rights.

This complaint, however, is misguided and the view it expresses is ultimately dangerous. The incentives for professional advancement already lead prosecutors to over-value law enforcement at the expense of civil liberties.

Providing defendants with zealous attorneys is one mechanism by which our legal system attempts to prevent abuses, but given the prosecutor's power and discretion, it is hardly sufficient. Would we want a Justice Department that zealously advocated the admission in court of coerced confessions or perjured testimony, on the theory that it is up to defense lawyers alone to protect the Fifth Amendment right against self-incrimination and the Sixth Amendment right to confront adverse witnesses?

A Clinton Administration Precedent Shows Olson Is Within His Proper Role

Consider a recent precedent. A federal statute had purported to overrule the Supreme Court's 1966 decision in Miranda v. Arizona. If the statute had been held valid, then a suspect's confession would, in some instances, have been admissible in court even when he had not been read his Miranda rights. When the question of the statute's constitutionality arose, the Clinton Administration's Justice Department declined to defend the statute.

The Department took the view that the statute was unconstitutional and that, although there were respectable arguments that could be made in its defense, those arguments were unpersuasive. The better view, it believed, was that Miranda rights were constitutionally-mandated, and thus a statute purporting to eliminate them was unconstitutional.

In declining to defend the anti-Miranda law, and thus preferring individual rights over a Congressional statute, was the Clinton Administration shirking its prosecutorial duty? On the contrary, it was admirably declining to enforce what it viewed as an unconstitutional law.

Nor did the Clinton Justice Department's stance prevent the Supreme Court from ultimately deciding the issue. When the Solicitor General declined to defend the law's constitutionality, the Court appointed University of Utah law professor Paul Cassell, a prominent critic of the Miranda decision, to argue for the statute's constitutionality.

Cassell did an admirable job. Nevertheless, the Court, in a 7-2 decision in the 2000 case of Dickerson v. United States ruled the statute unconstitutional. (Cassell, meanwhile, has been nominated for a seat on the federal district court in Utah.)

If the Clinton Department acted properly in defending Miranda warnings that it saw as part and parcel of the Fifth Amendment right against coercive interrogation, then the Bush Administration is now acting properly in defending an individual right to bear arms that it sees as part and parcel of the Second Amendment.

Of course, one might think that then, the Clinton Administration's Fifth Amendment view was right, while now, the Bush Administration's Second Amendment view is wrong. More than one observer has commented on Attorney General Ashcroft's willingness to curtail nearly all civil liberties save the liberty to possess a gun.

I am sympathetic to that complaint, as I indicated in an earlier column on the Attorney General's refusal to use a federal database to identify aliens in illegal possession of firearms. But the charges of misreading the Constitution and misplaced priorities are ultimately claims about the substance of the Justice Department's policy, rather than the appropriateness of its decision not to argue a point it does not believe.

The proper response to Olson's position is to address it on the merits - not to contend it is improper or unethical for him to adopt it. Indeed, one might argue that it might be improper or unethical for him to do the reverse: to argue against the recognition of an individual right in which he sincerely believes.

A Gratuitous Point? Not At All.

Commentators have also complained that the Justice Department gratuitously went out of its way to inject its Second Amendment views into cases where resolution of the issue is unnecessary. The government itself argues in both Haney and Emerson that the petitioners should lose regardless of whether the Second Amendment protects militias or individuals. So why bring up the Second Amendment at all?

The answer is that both Haney and Emerson raise Second Amendment claims in their petitions, and both the Tenth and Fifth Circuits addressed the merits of those claims. It takes four Justices to decide to accept a case for review. If four Justices believe that reading the Second Amendment to confer an individual right might result in the reversal of either Haney's or Emerson's conviction, then they need to know that the Justice Department is not prepared to argue for the militia-only interpretation of the Amendment.

They need to know, in other words, that they should be thinking about appointing someone to argue the position in the Justice Department's stead, as they did in Dickerson. Accordingly, it would have been irresponsible for the Justice Department not to have informed the Court of its change of heart on the meaning of the Second Amendment.

Burying the Point in a Footnote? It Still Made Headlines.

Another line of criticism takes aim at the Solicitor General's relegating the Second Amendment point to a footnote. This objection resonates with a broader claim about the Bush Administration's domestic policy. The claim is that the President and his ministers present themselves as moderates to the general public, but they secretly work to advance an extreme right-wing agenda that they communicate to their activist constituency through winks, nods, and now footnotes.

Whatever truth there may be to this charge in other contexts, if the Solicitor General's goal in explaining the Justice Department's position was to hide it, the tactic was a spectacular failure. The policy shift has been the subject of numerous front-page news stories and op-eds.

For Whom Does the Solicitor General Speak? Why Positions Change Over Time.

Finally, the Solicitor General has been criticized for changing Justice Department policy. For example, Andrew Frey, a former deputy solicitor general, was quoted in the New York Times as complaining that the militia-only interpretation of the Second Amendment "has been the government's position for more than 60 years." Suggesting that the Justice Department bureaucracy should be insulated from political judgments, Frey continued: "People who happen to be in office temporarily shouldn't use the office to promote their personal views."

The fact that the Justice Department has long adhered to a position does not suffice as a reason for continued adherence to that position. It is admirable that Justice Department employees have a sense of professionalism and fairness that transcends loyalty to any particular administration. Yet, like any federal agency, the Justice Department should be permitted to change its position in response to changed circumstances, changed social mores, and yes, even political changes.

The Administration had every right to change its policy on the Second Amendment. It acted appropriately by announcing that change in a footnote in cases in which the issue was not essential to the bottom-line outcome. The problem here is the substance of the Administration's position, and the debate should be fought on its merits. The procedural issues are merely a distraction.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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