On May 6, 2002, U.S. Solicitor General Theodore Olson filed a brief in the Supreme Court recognizing that the Second Amendment right to keep and bear arms is a personal right of law-abiding citizens. The filing arose out of the decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), in which the U.S. Court of Appeals for the 5th Circuit held that the Second Amendment protects the right to possess a firearm, but upheld a law barring possession by a person subject to a domestic violence restraining order.
When the case was before the 5th Circuit, the Reno Justice Department argued the Clinton Administration position that the only “right” protected by the Second Amendment was that of the States to maintain militias, not of any individual to possess a firearm. After the 5th Circuit rejected that view in favor of the individual-rights interpretation but upheld the statute, Dr. Timothy Emerson filed a petition asking the Supreme Court to review that decision and to declare the law void.
Given that Attorney General John Ashcroft on previous occasions expressed agreement with the individual-rights view, it was an open question as to how the United States would respond to Emerson’s petition. Moreover, another petition was pending before the Court asserting the invalidity of a law based on the Second Amendment. [1] The due date for the government’s response approached.
The Violence Policy Center (VPC), which lobbies for prohibitions on possession of firearms, anticipated that the brief of the United States in Emerson would agree with the 5th Circuit that the Second Amendment guarantees individual rights. In an effort to prevent such a brief from being filed, VPC retained Andrew Frey, who was Deputy Solicitor General during 1973-86, to write a letter to Solicitor General Olson urging that the United States stick with its Clinton-era position that the Second Amendment does not protect any individual rights.
Frey wrote a lengthy missive on behalf of VPC to Olson dated May 2, 2002, just four days before the brief was due. The letter was quickly posted on the VPC website, which features a regular “Ashcroft Watch” column which is critical of the Attorney General. The following analyzes Mr. Frey’s letter.
Frey asserts that any concession that “the right of the people to keep and bear arms” means what it says would “appear to be a politically motivated action and would impair the credibility of your Office before the Court and in the eyes of the public.” It goes without saying that the Clinton Administration’s anti-Second Amendment policies were nothing but political and that an honest appraisal of this portion of the Bill of Rights would restore, not reduce, credibility. Frey described the VPC as “a national non-profit educational organization” concerned with “firearms violence,” but in reality it is a tiny extremist group which lobbies to criminalize firearm possession by law-abiding Americans and is completely unconcerned with violent criminals.
Frey’s 15-page letter proceeds to make one misstatement after another to denigrate the Second Amendment. Not once does he so much as quote its words: “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.” Frey attacks the decision by the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), but does not, and indeed cannot, refute that court’s textual analysis:
[T]he words “the people” have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, “the people” have “rights” and “powers,” but federal and state governments only have “powers” or “authority”, never “rights.” Moreover, the Constitution’s text likewise recognizes not only the difference between the “militia” and “the people” but also between the “militia” which has not been “call[ed] forth” and “the militia, when in actual service.”
Id. at 227-28 (citing constitutional provisions).
Emerson upheld the law in question, 18 U.S.C. § 922(g)(8), which prohibits firearm possession by a person subject to a domestic violence restraining order. The defendant in that case had notice and an opportunity to be heard, and Texas law requires that such restraining orders be entered only if the judge determines factually that the person is a danger. (The district court in Emerson had interpreted the order to have been a routine, boiler plate order entered without factual findings.)
Frey argues that Emerson’s holding that the Second Amendment protects individual rights was “inconsistent with a long line of decisions of the Supreme Court . . . .” To the contrary, Emerson is consistent with every Supreme Court decision which so much as mentions the Second Amendment. Frey lectured Olson that the government should not file a brief which, “like the Fifth Circuit, gratuitously explicates its interpretation of the Second Amendment.”
If the Second Amendment is addressed, argued Frey, the government should contend that the amendment only protects arms-bearing in the militia. This had been argued by the government in the 1939 Miller case involving whether Congress could tax and register machineguns and short-barreled shotguns. Indeed, that brief argued that the right extended only to “the people collectively” and only “as members of the state militia.” [2]
However, the Supreme Court in United States v. Miller, 307 U.S. 174 (1939), did not even address that argument and held instead that the Second Amendment test was whether “this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” 307 U.S. at 178. The Court never suggested that the possessor had to be in the militia. Moreover, the Court noted that historically “the Militia comprised all males physically capable of acting in concert for the common defense” and that “these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Id. at 179.
The government brief in Miller did not represent the position of the United States. That position was made clear two years later in the Property Requisition Act, which gave the President the power to requisition property for wartime use. It declared that nothing in the act shall be construed:
(1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),(2) to impair or infringe in any manner the right of any individual to keep and bear arms,
P.L. 274, Ch. 445, 55 Stat., pt. 1, 742 (1941). This was a law duly passed by Congress and signed by President Franklin D. Roosevelt. Obviously, the United States considered the Second Amendment to protect individual rights.
Similarly, the position of the United Stat
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