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Revised View of 2nd Amendment Is Cited as Defense in Gun Cases July 23, 2002 By ADAM LIPTAK Scores of criminal defendants around the nation have asked federal courts to dismiss gun charges against them based on the Justice Department's recently revised position on the scope of the Second Amendment. The new position, that the Constitution broadly protects the rights of individuals to own guns, replaced the view, endorsed by the great majority of courts, that the amendment protects a collective right of the states to maintain militias. While the challenges have been rejected by trial court judges, based largely on appeals court precedent, supporters and opponents of broad antigun laws say the arguments have forced the Justice Department to take contradictory stances. Andrew L. Frey, a deputy solicitor general in the Justice Department from 1973 to 1986, said the department's new position would make life difficult for prosecutors and might give criminal defendants unforeseen opportunities. "Is this a Pandora's box, which, when once opened, cannot be controlled?" asked Mr. Frey, who opposed the new position in a letter to Justice Department officials on behalf of a gun-control group. A spokeswoman for the Justice Department, Monica Goodling, said the department was committed to prosecuting gun crimes. "The department believes it can defend the constitutionality of all existing federal firearms laws while working to take guns out of the hands of those who abuse them," Ms. Goodling said. In briefs filed with the Supreme Court in May, department lawyers said laws that restrict gun ownership by unfit people or restrict ownership of guns "particularly suited for criminal misuse" are appropriate. The department faces the clearest contradictions of its stance in Washington, which has an essentially complete ban on handguns. The city's government is supervised by Congress, and its local crimes are prosecuted by the Justice Department. Ms. Goodling was more guarded in discussing the District of Columbia's gun law. "The department can defend its criminal prosecutions of the firearms laws in D.C., and is doing so," she said. The difference in wording suggests that the department is unwilling to endorse the constitutionality of Washington's gun law in all circumstances. People on both sides of the gun control debate find fault with the department. "The Justice Department has created a very dangerous situation that is endangering public safety and forcing Justice Department prosecutors to litigate with one hand tied behind their backs," said Mathew S. Nosanchuk, litigation director of the Violence Policy Center, a gun control group in Washington. "Criminals are using the department's own Second Amendment language to challenge the gun laws." On the other hand, Robert A. Levy of the Cato Institute, a libertarian research group in Washington, was critical of Attorney General John Ashcroft for announcing the new position in briefs to the Supreme Court in May but not applying it in trial courts. "It's bizarre for Ashcroft to go out of his way to assert that the Second Amendment is about an individual right when he didn't have to say anything," Mr. Levy said. "When he has the chance to make the assertion in a case where it really matters, he doesn't. It's puzzling." Prosecutors opposing the new Second Amendment challenges have filed narrow and cryptic responses. In a brief filed in the District of Columbia Court of Appeals, for instance, the Justice Department noted that its position on the Second Amendment was inconsistent with that of the court, which has held that the amendment protects a collective right. Still, it continued, "although the question of the proper interpretation of the Second Amendment is significant, this case simply does not present that question in a manner suitable for resolution." In other briefs, the government has argued that a particular defendant or weapon fits within its own announced exceptions. According to a brief filed in San Francisco, "The government does not concede that the Second Amendment creates a fundamental individual right for felons to bear arms, or for anyone to bear arms" like the machine guns at issue in that case. The Supreme Court last addressed the meaning of the Second Amendment in 1939, in a decision that lawyers on both sides of the issue say supports their views. That disagreement about Supreme Court precedent, along with a federal appeals court decision last year adopting the individual-rights view, means it is an open question how other appeals courts will view the new challenges. In footnotes in two filings with the Supreme Court in May, the government said the Second Amendment protected the rights of individuals "to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possessions of types of firearms that are particularly suited to criminal misuse." Defendants have said this position amounts to a recognition that the right to bear arms is as fundamental as the right to free speech and so requires courts to be extremely skeptical of government efforts to regulate guns. That is a position that has long been held by groups opposing gun control. Public defenders say they are engaged in a cat-and-mouse game with the government, with the goal of forcing it to articulate its true position. The government's court filings, said John Paul Reichmuth, a federal public defender in Oakland, Calif., are "evasive and anemic to the point of unconsciousness." But, Mr. Reichmuth said, "at some point in some argument where a real case is going on, they won't be able to fall back on their procedural arguments and they'll have to state what the content of the right is." An appeal in the most challenging case, that of the District of Columbia's gun law, has already reached the local appellate court, the District of Columbia Court of Appeals. It was filed by Bashuan Pearson, who was charged with felony weapons possession. In court papers, Mr. Pearson said that he had a license to carry the pistol in question in Maryland and that he had a clean criminal record. Mr. Pearson complained to the appeals court that in its own court papers the Justice Department "refuses to reveal whether, under the current view of the attorney general concerning the meaning of the Second Amendment, the District's gun laws are facially unconstitutional." Mr. Pearson asked for a full-court hearing. Only the full court can overrule an earlier precedent of the court, which held that the Second Amendment protects a collective right. Apparently not satisfied that the Justice Department will adequately defend the local law, the District of Columbia's lawyers have asked to intervene in the case. James C. McKay Jr., a lawyer for Washington, said Justice Department prosecutors must reconcile their day-to-day prosecutorial practices with the department's new policy. "There is a conflict between their very hard approach to gun possession and their position that there is a Second Amendment right to carry a gun," Mr. McKay said. The government is allowed to take contrary legal positions in different settings, legal experts said. "The argument that you're being hypocritical is not a legally sufficient argument," said Akhil Reed Amar, a law professor at Yale. But there are practical difficulties in reconciling warring positions in related litigations, said Michael Dorf, a law professor at Columbia. "Ashcroft is trying to please two different constituencies," Mr. Dorf said. "On the one hand, there is the gun lobby, which is very pleased with his decision. On the other hand, he has to consider federal prosecutors and probably the general public as well." Mr. Frey, the former deputy solicitor general, said he hoped the question would remain academic. "I hope the upshot will be that the attorney general's new position will be rejected and recede into the mists of history," he said, "or that it will turn out to be contentless in that there will be no cases to which it will apply." http://www.nytimes.com/2002/07/23/national/23GUNS.html?ex=1028455141&ei=1&en=12bf59a7b51e8908 HOW TO ADVERTISE --------------------------------- For information on advertising in e-mail newsletters or other creative advertising opportunities with The New York Times on the Web, please contact [EMAIL PROTECTED] or visit our online media kit at http://www.nytimes.com/adinfo For general information about NYTimes.com, write to [EMAIL PROTECTED] Copyright 2002 The New York Times Company <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance�not soap-boxing�please! 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