Second Amendment

In a non-decisional case, the Court refused to hear two cases convicted of violating federal gun law. The denial of cert in these case would not have been at all unusual except for the fact that the Bush Administration had entered an amicus brief putting forth a new interpretation of the Second Amendment. Although agreeing that the convictions should stand, the administration informed the Court that it has reversed a decades old policy on the Second Amendment. Until now, administrations both Democratic and Republican have adhered to the position that the amendment protects a collective right—of the people—to bear arms, and that this collective right is linked to the power of the state to create a militia, the position enunciated by the Supreme Court in one of the few Second Amendment cases it has ever decided, United States v. Miller (1939). Now, according to Attorney General John Ashcroft, the official administration policy will be to interpret the Second Amendment as guaranteeing an individual right to own firearms, without any qualifying militia condition, subject only to reasonable restrictions. What impact, if any, this statement will have is difficult to tell, and the Court did not comment upon it in its denial of certiorari for these cases. But conservative state and lower court judges may seize upon it should gun ownership groups start challenging state or federal gun laws. If they did, at least some of those cases would certainly reach the Court, and involve it in one of the fiercest public policy debates of our times.

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