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rights on the right 11
1
Dismantling legislative restrictions on gun rights
2
In the gun rights context, criminal defense attorneys repeatedly sought to 3
build on United States v. Lopez by challenging the constitutionality of the 4
federal ban on firearms possession by convicted felons, which dated to the 5
federal Gun Control Act of 1968. These efforts were uniformly unsuccess- 6
ful, given that the felon- in- possession statute, unlike the GFSZA, applied 7
only to guns that had been transported in interstate or foreign commerce. 8
In the nine years following Lopez, federal appellate panels issued at least 9
twenty- eight decisions rejecting commerce clause challenges to the felon- 10
in- possession law. All of these holdings were unanimous on this point, 11
70
though Sixth Circuit Judge Alice M. Batchelder wrote separately in one 12
case to indicate that if not for governing circuit precedent, she would have 13
ruled the other way, and all three members of a Fifth Circuit panel in 14
another case indicated that the issue was due some reconsideration by 15
SCOTUS. 71 16
If and when it did so, the Court would no longer be pushing against 17
headwinds from the federal executive branch. After George W. Bush 18
succeeded Clinton in the White House in 2001— with John Ashcroft suc- 19
ceeding Janet Reno at the Department of Justice (DOJ)— the federal 20
government’s litigation posture in gun rights cases shifted significantly. 21
22
In its brief to the court of appeals, the government argued that the Second 23
Amendment protects only such acts of firearm possession as are reasonably 24
related to the preservation or efficiency of the militia. The current position 25
of the United States, however, is that the Second Amendment more broadly 26
protects the rights of individuals, including persons who are not members of 27
any militia or engaged in active military service or training, to possess and bear 28
their own firearms, subject to reasonable restrictions designed to prevent pos- 29
session by unfit persons or to restrict the possession of types of firearms that are 30
particularly suited to criminal misuse. 22 31
32
In August 2004, DOJ’s Office of Legal Counsel (OLC) formally endorsed 33
this view, with Principal Deputy Assistant Attorney General Steven G. 34
Bradbury issuing a 106- page memorandum concluding that “[t]he Second 35
Amendment secures a right of individuals generally, not a right of States 36
or a right restricted to persons serving in militias.” 23 37
Like United States v. Lopez, United States v. Emerson (5th Cir. 2001) 38
led to a number of follow- up suits, but here, the organized rights advocates 39

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