THE ELECTION OF GEORGE W. BUSH has brought forth a change in the government’s view of the Second Amendment. More than a few Americans know the amendment by heart: "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." Under Bill Clinton, the Justice Department maintained that the amendment protects the right of the states to maintain a militia, but doesn’t encompass the right of an individual to keep and bear arms. But now, under Bush, the department holds—as it has in many previous administrations—that the amendment protects a personal right to own firearms.

Attorney general John Ashcroft stated the new understanding in a May 17 letter that received scant attention. You can see why: As a senator, Ashcroft always held the pro-individual-rights position on the Second Amendment, and there was no reason to think he would reverse this position as attorney general, especially since he had reiterated it during his confirmation hearing. Also, Ashcroft’s letter didn’t say whether any particular federal firearms statute might now be unconstitutional. Second Amendment authorities tend to agree that most such laws would survive an individual-rights review, so the letter didn’t seem to have any major implications for federal law enforcement.

Even so, the Ashcroft letter deserves more than a casual glance. It has notable political origins, and it will have consequences at least in terms of how Justice defends gun laws. Most important, it reveals Ashcroft’s approach to constitutional interpretation.

The letter was a response to James Jay Baker, the chief lobbyist of the National Rifle Association, who on April 10 had written Ashcroft asking "your view and that of the current Department of Justice" on whether the Second Amendment "guarantees an individual right to keep and bear arms." There was a history behind Baker’s letter, and it involves a current case, United States v. Emerson. Emerson is Timothy Joe Emerson, a Texas physician whose wife had filed for divorce and who was under a court order not to injure her. When his wife arrived at his office one day, Emerson pulled a Beretta pistol from a desk drawer and placed it on the tabletop. A federal grand jury indicted him for violating a 1994 law barring persons subject to restraining orders from possessing guns. Emerson argued that the indictment violated his Second Amendment right to keep and bear arms, and judge Sam R. Cummings agreed. Nelson Lund discussed the case at length in this magazine ("Taking the Second Amendment Seriously," July 24, 2000).

The Justice Department appealed, and on June 13, 2000, the U.S. Court of Appeals for the 5th Circuit, whose decision is still pending, heard oral arguments in the case. Assistant U.S. attorney William Mateja maintained that the Second Amendment doesn’t protect an individual right to keep and bear arms. That position caught the eye of NRA member Robert D. Grace of Amarillo, Texas. Grace wrote attorney general Janet Reno asking whether Mateja’s view of the Second Amendment was the department’s position. On August 22, solicitor general Seth Waxman wrote Grace back confirming that it was.
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