Washington Once again the issue of a citizen's right to own and bear arms has become a front-burner question thanks to Atty. Gen. John Ashcroft, and his words contain the seed of a solution.
A brief filed with the U.S. Supreme Court on May 6 included text from a letter written last year by Ashcroft to the National Rifle Assn. (NRA) in which he argued that "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 any 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."
This is a departure from the Supreme Court position established in 1939 that adhered to a literal interpretation of the Constitution linking gun ownership to the maintenance of a "well regulated militia."
The Ashcroft position coincides with the NRA position, which fears that constitutional exclusion of an individual right to own a gun could lead to a government confiscation of guns. The idea is that our liberty is secured because gun ownership will prevent an oppressive government from militarily imposing its will upon us.
The argument on the other side is that citizens armed with handguns and shotguns could never stand up to a modern army in any event. The days of the minuteman are long gone.
But this isn't the debate we should be having. Ashcroft has it right when he writes about "reasonable restrictions," though no such language is contained in the Constitution.
A good analogy can be made with driving. Every 16-year-old may believe he or she has a right to drive, but every state in the nation imposes reasonable restrictions on vehicular ownership and operation. Vehicles must be registered, and drivers must be licensed, and no one looks to the Constitution for guidance on either subject.
To make the point, let us assume there is a constitutional right to own and operate a vehicle, such right having been created by constitutional amendment following the invention of the internal combustion engine in 1884. With such an amendment, by what right could any government then compel the registration of vehicles or the licensing of drivers? Similarly, by what right can Ashcroft impose "reasonable restrictions" on gun ownership?
The answer lies in adherence to the literal meaning of the Second Amendment that addresses a well-regulated militia. For individuals, then, gun use and ownership would be a privilege rather than a right. And privileges are subject to regulation. But they cannot be arbitrary because they are covered by the various anti-discrimination laws that cover age, gender, race, national origin, and so forth.
In this way there is common ground between the Ashcroft philosophy and the gun-control philosophy. It is difficult to regulate a right. It is ridiculous not to regulate lethal weapons. Like auto ownership and use, guns ought to be registered, their owners ought to be licensed after passing a test, the age of ownership should be established at 18, the age of use should be 18 (or younger when accompanied by a licensed person), and all felons should be denied licenses.
The idea that virtually anyone can own and operate a gun without proving mental competence or without passing a basic examination that emphasizes gun safety may be constitutional, but it isn't sane. Even Atty. Gen. Ashcroft would "prevent possession by unfit persons."