Attorneys for two men accused of violating the District's ban on handguns are arguing that the law is unconstitutional, citing the Bush administration's position that the Second Amendment gives private citizens the right to bear arms.
Attorney General John D. Ashcroft, the nation's top law enforcement official, recently reversed years of government policy by arguing that the Second Amendment guarantees the right of gun ownership to private citizens, not just to state militias.
The two D.C. defendants are likely to be the first of many to seize upon Ashcroft's position to make constitutional challenges to the city's handgun ban, one of the nation's most sweeping gun-control laws, defense lawyers and legal experts said yesterday.
"The Justice Department is now saying that a general statute like D.C.'s is contrary to the Second Amendment," said A.J. Kramer, the federal public defender in the District.
The motions were filed this month by the Public Defender Service on behalf of Michael A. Freeman, 26, and Vaughn Stebbins, 22. Each man is charged with carrying a pistol without a license, a criminal offense in the District since 1976. Each man has a juvenile record, but no adult convictions were listed in D.C. Superior Court records.
The government's response in one of the cases is due today. Channing Phillips, a spokesman for the U.S. attorney's office, said his agency was awaiting instructions from the Justice Department.
Ashcroft's position on the Second Amendment was staked out in a letter to the National Rifle Association last year, expanded upon in a memo to the nation's U.S. attorneys in November and distilled in legal arguments filed with the U.S. Supreme Court this month.
His view will make it difficult for the U.S. attorney's office to enforce the District's prohibition on all handguns and ammunition, some legal scholars said.
"All of this is brand new," said Stephen Wermiel, a professor at American University's College of Law who specializes in constitutional issues. The effect "of Ashcroft's statements is to highlight all of this on the radar screen in a way that judges are now going to have to look at these arguments more carefully."
Mathew Nosanchuk, litigation director for the Violence Policy Center, a gun-control advocacy group, said it was inevitable that criminal defendants would use Ashcroft's arguments to challenge gun laws.
"People have been thinking about this as an abstract legal theory when it's been clear that Ashcroft's interpretation would have real-world consequences," Nosanchuk said.
The Second Amendment -- "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" -- was interpreted by the U.S. Supreme Court in 1939 to apply only to militias and not to individuals.
For six decades, courts confirmed that interpretation time and again.
But Ashcroft, a strong supporter of gun ownership rights, wrote to the NRA last year that "the text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
An October decision by the 5th U.S. Circuit Court of Appeals echoed that sentiment, although the effect of the ruling was to deny Timothy Emerson, who was under a restraining order, the right to own a gun.
Ashcroft wrote a memo to U.S. attorneys informing them of his policy shift in November, citing the Emerson ruling as precedent.
On May 6, in response to Emerson's appeal to the U.S. Supreme Court, Solicitor General Theodore B. Olson urged the high court not to review the case, saying the government did not think Emerson should be licensed to have a gun.
But in a footnote, he added, "The current position of the United States is that the Second Amendment more broadly protects the rights of individuals . . . to possess and bear their own firearms, subject to reasonable restrictions."
Those restrictions would preclude felons or "unfit persons" from owning weapons and would not allow firearms particularly suited to criminal enterprise, such as machine guns, Olson wrote.
Freeman, one of the two D.C. defendants challenging the city's handgun ban, was convicted as a juvenile of assault with intent to kill, a conviction that might preclude him from having a gun under the Justice Department's guidelines.
Although the debate continues on the Bush administration's position on the Second Amendment, there was consensus among legal scholars yesterday that the District is a logical place for the interpretation to be tested.
The D.C. code effectively prohibits anyone but law enforcement officials from owning a handgun. Rifles and shotguns are strictly regulated.
"The D.C. law is absolutely vulnerable," said Robert Levy, senior fellow for constitutional studies at the Cato Institute, a nonprofit think tank based in the District, who agrees with Ashcroft's interpretation of the Second Amendment. "It's so broad, so across-the-board, that no one can own a handgun, period. It doesn't allow for reasonable regulation."
That is the argument used by attorneys for Stebbins and Freeman.
"The statute under which Mr. Stebbins is being prosecuted is unconstitutional on its face," wrote Edward J. Ungvarsky, Stebbins's court-appointed attorney. "There has been a sea change in the legal community's understanding of the meaning of the Second Amendment -- as highlighted by the position of the United States before the Supreme Court."
Tony Bullock, spokesman for D.C. Mayor Anthony A. Williams (D), defended the city's statutes yesterday.
"D.C. gun laws are among the toughest in the nation, and until the city council and the mayor want to amend them, they're going to stay that way," he said.
Staff writer Dan Eggen contributed to this report.