From The New York Times: U.S., in a Shift, Tells Justices Citizens Have a Right to Guns. The Justice Department told the Supreme Court for the first time late Monday that the Constitution "broadly protects the rights of individuals" to own firearms.
The law is a living thing. It isn't just what Legislatures enact (thank God). It's the sum total of legislative action, judicial ruling, and executive action. That's why it's so hard to get a straight answer out of a lawyer. It's also why it's so important to have Attorneys General who don't have ideological agendas -- or who are willing to put them aside.
The question came up in force during confirmation hearings for John Ashcroft, a conservative Republican from Missouri who is quite frank about his Pentacostal faith. From Ashcroft's confirmation testimony before the Judiciary Committee:
But, as I have explained this afternoon, I well understand that the role of the Attorney General is to enforce the law as it is, not as I would have it.
The late Charles Black (paid link), professor of Constitutional Law at The Yale Law School, taught many of the nation's political leaders. My wife, who fondly remembers taking Black's class, says that he would sometimes drawl -- mostly in jest -- "I don't see what all the fuss is about. Just read the Constituton and do what it says."
There's an excellent profile of Ashcroft in the April 15, 2002 issue of The New Yorker (not available online). The article talks at some length about Ashcroft's ties to the National Rifle Association. Yet since The Depression, the Supreme Court and the Justice Department has read the Second Amendment as requiring a militia. This has been settled law through the administrations of Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush and Clinton.
Now comes Ashcroft, enforcing the law "as it is," telling the Court that:
"The current position of the United States, however, 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."
What's next? This, too, is from Ashcroft's confirmation:
As is well known, consistent with Republican United States Attorneys General before me, I believe Roe v. Wade, as an original matter, was wrongly decided. I am personally opposed to abortion. But, as I have explained this afternoon, I well understand that the role of the Attorney General is to enforce the law as it is, not as I would have it.... If confirmed as Attorney General, I will follow the law in this area as in all other areas. The Supreme Court's decisions on this have been multiple, recent, and emphatic.
As opposed to the 1939 Miller decision, I suppose, which was neither multiple nor recent.
I can't help but wonder what Ashcroft has next on his list.