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Ashcroft’s remaking of America

Understanding the full effect of John Ashcroft’s 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 government’s understanding of the Second Amendment, the one governing the right to bear arms.

We won’t 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 general’s moral sensibilities extended beyond statues to the need to protect real people from real danger.

National Catholic Reporter, May 17, 2002