EDITORIAL Ashcrofts remaking of America
Understanding the full effect of
John Ashcrofts tenure as attorney general will probably take years. From
the silliness of covering nude statues at the justice department (imagine him
dealing with the public art in some European city) to the enormously serious
matters of secret tribunals and detaining untold numbers of people
incommunicado and without recourse to legal counsel, this is a public official
who clearly sees the law as his to interpret and dodge.
The latest episode in the John Ashcroft initiative to make the
culture unto his own liking was his assertion recently that the justice
department was altering the federal governments understanding of the
Second Amendment, the one governing the right to bear arms.
We wont pretend here to do what decades of legal scholarship
has failed to do: fashion some consensus on the meaning of the Second
Amendment. For the record, that amendment reads: A well regulated
Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
The Supreme Court, which last ruled on the matter in 1939, has
held that the Second Amendment protects rights that have a reasonable
relationship to the preservation of efficiency of a well regulated
militia. That means reasonable restraints can be placed on gun
ownership.
It is difficult to understand just what Ashcroft is driving at in
a legal sense. His latest initiative seems to raise far more questions than it
answers. Does he, for instance, want no restrictions to apply to gun ownership?
Unlikely, even for someone who was, literally, an NRA cover boy last summer. In
fact, in the footnotes to briefs the justice department submitted in two
ongoing cases, the department explains that, different from the historic
Supreme Court understanding of the amendment, 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, 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.
It sounds for all the world as if that is the policy that has been
operative for years. The arguments, as far as we understand, have been over
what constitutes reasonable restrictions.
More telling -- and to the political point, perhaps -- is that the
language in the footnote is the same as that in an Ashcroft letter to the
National Rifle Association last year.
Even constitutional experts are having some difficulty explaining
where the attorney general is headed on this one. But one thing is certain, he
is not out to convince the NRA that more stringent policy is needed to control
guns.
Pity. According to reputable groups advocating stricter gun laws,
28,000 Americans a year die from guns. That number includes 13 children a
day.
Would that the attorney generals moral sensibilities
extended beyond statues to the need to protect real people from real
danger.
National Catholic Reporter, May 17,
2002
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