The Bush administration has told the Supreme Court that it believes the Constitution protects an individual's right to possess firearms. This is a first. It reverses decades of Justice Department policy.
At the same time, the administration's top Supreme Court lawyer said the high court need not test that principle now.
The administration's view represents a reversal of government interpretations of the Second Amendment going back some 40 years.
"The current position of the United States ... 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," Solicitor General Theodore Olson wrote in two court filings this week.
That right, however, is "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."
Olson, the administration's top Supreme Court lawyer, was reflecting the view of Attorney General John Ashcroft that the Second Amendment confers the right to "keep and bear arms" to private citizens and not merely to the "well-regulated militia" mentioned in the amendment's text.
Ashcroft caused a stir when he expressed a similar sentiment a year ago in a letter to the National Rifle Association.
"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," Ashcroft wrote.
Critics accused him of kowtowing to the NRA and of undermining federal prosecutors by endorsing a legal view 180 degrees away from what has been official Justice Department policy through four Democratic and five Republican administrations.
At the time Ashcroft wrote the letter, it was unclear whether he was expressing his personal view or stating a new policy position for the government. That question was mostly answered last November, when he sent a letter to federal prosecutors praising an appeals court decision that found "the Second Amendment does protect individual rights" but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."
That opinion by the 5th U.S. Circuit Court of Appeals went on to reject arguments from Texas physician Timothy Emerson that a 1994 federal gun law was unconstitutional. The law was intended to deny guns to people under judicial restraining orders.
"In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment," Ashcroft told prosecutors.
Emerson appealed to the Supreme Court, putting the Justice Department in an awkward position. Although the government won its case in the lower court using the old interpretation of the Second Amendment, Ashcroft had switched gears by the time the case reached the high court.
Olson's court filing Monday urged the high court not to get involved and acknowledged the policy change in a lengthy footnote. Olson also attached Ashcroft's letter to prosecutors.
Olson made the same notation in a separate case involving a man convicted of owning two machine guns in violation of federal law. In that case, the government also won a lower court decision endorsing a federal gun control law.
The Justice Department issued a statement Tuesday night saying its latest comments reflect the attorney general's position in the November letter to prosecutors.
"This action is proof positive that the worst fears about Attorney General Ashcroft have come true: his extreme ideology on guns has now become government policy," said Michael Barnes, president of the Brady Center to Prevent Gun Violence, which promotes gun control.
Barnes noted that other federal appeals courts and the Supreme Court have not found the same protection for individual gun ownership that the 5th Circuit asserted in the Emerson case.
The Supreme Court last ruled on the scope of the Second Amendment in 1939.
The amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia," the high court said then.
The cases are Emerson v. United States, 01-8780 and Haney v. United States, 01-8272.