Gun Crazy [WARNING - ANTI-GUN ATTACK ON ASHCROFT]

Take a moment to feel sorry for John Ashcroft. He’s a man of such certainty, such absolute conviction, that he is physically incapable of enforcing a law in which he does not believe. Unlike 60 years of attorneys general who have come before him, he’s decided — without precedent, without procedural grounds, and without the legal authority to do so — to simply rewrite decades’ worth of gun laws. Why? Because he disagrees with them.

AND HE’S LUCKIER than all the rest of us who may also disagree with certain laws and rulings in that he’s in a position to impose his view of the law upon everyone else. Attorneys general have had wide latitude to selectively enforce the laws of which they approve. But Ashcroft has granted himself the further right to actually rewrite and reinterpret settled law — based only upon his personal beliefs and preferences.

Debate has raged for decades over whether the Second Amendment’s “right to keep and bear arms” is a personal right — belonging to every citizen — or a “collective right” belonging only to members of state militias, such as today’s National Guard. While the debate has strong arguments on each side, virtually every federal court in the country has held for over six decades that there is no personal, individual right to own a gun.

The Supreme Court settled this question in the 1939 case of United States v. Miller, in which it upheld a statute requiring the registration of certain types of guns (machine guns and sawed-off rifles, sawed-off shotguns and silencers) on the theory that such guns bore “no reasonable relationship to the preservation or efficiency of a well regulated militia.” Every court since has taken that to mean that the only guns protected by the Second Amendment must be related to one’s role in a militia.

This result absurdly suggests that the state can regulate hunting rifles but not rocket launchers or grenades that might reasonably be used by militias. Other scholars bicker over the original intent of the framers, the history of gun ownership in America, and the fact that courts before Miller upheld the individual rights theory. But all this debate happens on the sidelines, because every court after Miller imposed its collective rights theory, until very recently. In United States v. Emerson, a Texas case decided last October by the 5th Circuit Court of Appeals, the majority found that the Constitution “protects the right of individuals, including those not then actually a member of any militia ... to privately possess and bear their own firearms.” While the court upheld the gun regulation in that particular case as permissible (a father subject to a restraining order had been brandishing a Beretta around his estranged wife and child), it dramatically shifted the presumption in the 5th Circuit from approving all gun restrictions to testing their validity in every case.

Now, when Emerson was argued in the lower courts, the Justice Department took the same position it’d been taking in Second Amendment cases for decades, easily paraphrased as: “Look, Bozo, there’s just no individual right to own a gun.” But when Timothy Joe Emerson appealed the decision to the U.S. Supreme Court, Ashcroft slipped a staggering aside into the DOJ’s brief. Out of the blue the Justice Department went out of its way to announce a completely unprecedented view of the law. Ashcroft now asserted 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 or bear their own firearms.” In the footnotes, this new DOJ policy was qualified with the caveat that these sweeping new individual rights are nevertheless “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.”

And that, ladies and gentlemen, is the sound of your attorney general trying to both suck and blow.

The defense bar reacted to Ashcroft’s pronouncement with delight. Citing Ashcroft, attorneys for every savvy crackhead in the land (plus John Walker Lindh’s) immediately tacked a Second Amendment defense onto their pleadings, arguing that the gun charges against them were invalid since the Second Amendment (according to the attorney general) confers a personal right to bear arms. Defendants filed more than three dozen Ashcroftian challenges to gun possession laws this year in the District of Columbia alone. Ashcroft, who never cared all that much for the rights of crackheads, has responded in every case with the double-constitutional back flip that since the broad right to bear arms is still subject to “reasonable regulation,” the regulations in this case (and, um, in the last one and the next one) are legitimate. So, his prosecutors now argue, in every gun case, that the Second Amendment does confer an individual right, but they then go on to concede that this defendant was charged under a reasonable regulation and should therefore still be convicted.

The balance between inventing new law and refusing to enforce it is a tough one to credibly strike. If Ashcroft is correct in stating that the right to a gun is personal, like the right to free speech or the right to vote, then he should also take the constitutional position that only the very narrowest kinds of regulation would survive the scrutiny of the courts. It won’t work, in other words, for him to advocate an individual right while also upholding every gun law being challenged across the land.

The gun lobby has been less than thrilled with Ashcroft’s decision to give them a personal right to bear arms with one hand and to take it away with the other, by declining to actually challenge a single gun law. What looked like a spectacular victory when Ashcroft unilaterally reversed the Supreme Court last spring has proved pyrrhic. The NRA took issue with the DOJ’s position in Emerson, filing a brief that argued against the gun regulations upheld by both the Emerson court and endorsed by the DOJ. And two gun-rights groups wrote to Ashcroft last spring accusing the administration of “saying things they believe gun owners want to hear, the things they believe will win our votes. But they are not doing anything to follow up on these mere words.”

When is a pander not a pander? When it’s personal. And the reason Ashcroft cannot be accused of merely pandering to the gun lobby is that he was theirs from the get-go. Where guns are concerned, Ashcroft is quasi-religious in his zeal. He’d have lobbied for personal gun rights even if the NRA was comprised solely of old ladies with shrimp forks.

For instance, last fall, Ashcroft blocked the FBI from using gun purchase records gathered under the auspices of the federal Brady Act to determine if any of the 1,200 suspected terrorists detained after Sept. 11 had purchased a gun. This is the man who didn’t hesitate to lock these same people up for months without charges, insisting that looking into their gun records violated their privacy.

Why am I so worked up over the attorney general’s new gun directive if he’s already proved that he won’t enforce it anyway? Won’t this be just one more throwaway policy that is on the books but never enforced? For one thing, it’s not his job to put anything on the books. If Miller was wrongly decided, it’s the job of the legislative or judicial branches to sort it out. The Supreme Court indicated that it’s not inclined to touch this when it declined to hear appeals in Emerson and another Second Amendment case last June. (So, yes, this means that in the 5th Circuit and Ashcroft’s brain, the law is that there is a personal right to bear arms, subject to reasonable regulation, and everywhere else, Miller is still the law.)

For another thing, if the attorney general can override decades of constitutional precedent by dropping a footnote in a brief, what’s to stop him from instituting a DOJ policy barring minors from access to abortions, because he believes that Roe v. Wade was also wrongly decided? What’s to stop him from advising his minions to stop enforcing the civil rights laws, since they just bug him?

What was supposed to stop him from behaving like a demented Über-Supreme-Court was the promise he made to Congress at his confirmation hearings. And yes, it’s worth playing back the tape slowly for this one: Ashcroft, answering questions about his willingness to abide by laws, including gun laws, with which he personally disagreed, stated: “being attorney general means advancing the national interest, not advocating my personal interest.”

If ever there was an argument for strapping all nominees to polygraphs during their confirmation hearings, Ashcroft has just made it.

"On every question of construction (of the Constitution) let us carry our-selves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." (Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322)

"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently,
no majority has a right to deprive them of." (Albert Gallatin of the New York Historical Society, October 7, 1789)

"The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States....Such men form the best barrier to the liberties of America" - (Gazette of the United States, October 14, 1789.)

"No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J. Boyd, Ed., 1950] )

"The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..." (James Madison, I Annals of Congress 434 [June 8, 1789])

"A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms." (Richard Henry Lee, Additional Letters from the Federal Farmer (1788) at 169)

"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [ I Annals of Congress at 750 {August 17, 1789}])

"...to disarm the people - that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison, The Federalist Papers #46 at 243-
244)

"the ultimate authority ... resides in the people alone," (James Madison, author of the Bill of Rights, in Federalist Paper #46.)

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of
regular troops that can be, on any pretense, raised in the United States" (Noah Webster in An Examination into the Leading Principles of the Federal Constitution', 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))

"...if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" (Delegate Sedgwick, during the Massachusetts Convention, rhetorically asking if an oppressive standing army could prevail, Johnathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the
Federal Constitution, Vol.2 at 97 (2d ed., 1888))

"...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who
stand ready to defend their rights..." (Alexander Hamilton speaking of standing armies in Federalist 29.)

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are
afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in Federalist Paper No. 46.)

"As civil rulers, not having their duty to the people before them, may
attempt to tyrannize, and as the military forces which must be
occasionally raised to defend our country, might pervert their power
to the injury of their fellow citizens, the people are confirmed by
the article in their right to keep and bear their private arms."
(Tench Coxe in Remarks on the First Part of the Amendments to the
Federal Constitution' under the Pseudonym A Pennsylvanian' in the
Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)

"Congress have no power to disarm the militia. Their swords, and every
other terrible implement of the soldier, are the birthright of an
American... The unlimited power of the sword is not in the hands of
either the federal or state government, but, where I trust in God it
will ever remain, in the hands of the people" (Tench Coxe,
Pennsylvania Gazette, Feb. 20, 1788)

"The prohibition is general. No clause in the Constitution could by
any rule of construction be conceived to give to Congress a power to
disarm the people. Such a flagitious attempt could only be made under
some general pretense by a state legislature. But if in any blind
pursuit of inordinate power, either should attempt it, this amendment
may be appealed to as a restraint on both." [William Rawle, A View of
the Constitution 125-6 (2nd ed. 1829)

"I ask, sir, what is the militia? It is the whole people, except for
few public officials." (George Mason, 3 Elliot, Debates at 425-426)
"The Constitution shall never be construed....to prevent the people of
the United States who are peaceable citizens from keeping their own
arms" (Samuel Adams, Debates and Proceedings in the Convention of the
Commonwealth of Massachusetts, 86-87)

"To preserve liberty, it is essential that the whole body of people
always possess arms, and be taught alike especially when young, how to
use them." (Richard Henry Lee, 1788, Initiator of the Declaration of
Independence, and member of the first Senate, which passed the Bill of
Rights, Walter Bennett, ed., Letters from the Federal Farmer to the
Republican, at 21,22,124 (Univ. of Alabama Press,1975)..)

"The great object is that every man be armed" and "everyone who is
able may have a gun." (Patrick Henry, in the Virginia Convention on
the ratification of the Constitution. Debates and other Proceedings of
the Convention of Virginia,...taken in shorthand by David Robertson of
Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates
at 386)

"The people are not to be disarmed of their weapons. They are left in full possession of them." (Zachariah Johnson, 3 Elliot, Debates at 646)

"Are we at last brought to such humiliating and debasing degradation,
that we cannot be trusted with arms for our defense? Where is the
difference between having our arms in possession and under our
direction, and having them under the management of Congress? If our
defense be the real object of having those arms, in whose hands can
they be trusted with more propriety, or equal safety to us, as in our
own hands?" (Patrick Henry, 3 J. Elliot, Debates in the Several State
Conventions 45, 2d ed. Philadelphia, 1836)

"The best we can hope for concerning the people at large is that they be properly armed." (Alexander Hamilton, The Federalist Papers at
184-8)

"That the said Constitution shall never be construed to authorize
Congress to infringe the just liberty of the press or the rights of
conscience; or to prevent the people of The United States who are
peaceable citizens from keeping their own arms..." (Samuel Adams,
Debates and Proceedings in the Convention of the Commonwealth of
Massachusetts, at 86- 87 (Peirce & Hale, eds., Boston, 1850))

"And what country can preserve its liberties, if its rulers are not
warned from time to time that this people preserve the spirit of
resistance? Let them take arms....The tree of liberty must be
refreshed from time to time, with the blood of patriots and tyrants"
(Thomas Jefferson in a letter to William S. Smith in 1787. Taken from
Jefferson, On Democracy 20, S. Padover ed.,1939)

"Guard with jealous attention the public liberty. Suspect everyone who
approaches that jewel. Unfortunately, nothing will preserve it but
downright force. Whenever you give up that force, you are inevitably
ruined" (Patrick Henry, 3 J. Elliot, Debates in the Several State
Conventions 45, 2d ed. Philadelphia, 1836)

"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." --(Thomas Jefferson)

"Firearms stand next in importance to the Constitution itself. They
are the American people's liberty teeth and keystone under
independence ... From the hour the Pilgrims landed, to the present
day, events, occurrences, and tendencies prove that to insure peace,
security and happiness, the rifle and pistol are equally indispensable
... The very atmosphere of firearms everywhere restrains evil
interference - they deserve a place of honor with all that is good"
(George Washington)

"A strong body makes the mind strong. As to the species of exercises,
I advise the gun. While this gives moderate exercise to the body, it
gives boldness, enterprise, and independence to the mind. Games played
with the ball and others of that nature, are too violent for the body
and stamp no character on the mind. Let your gun therefore be the
constant companion of your walks.(Thomas Jefferson, Encyclopedia of T.
Jefferson, 318 [Foley, Ed., reissued 1967])

"The supposed quietude of a good mans allures the ruffian; while on
the other hand, arms like laws discourage and keep the invader and the
plunderer in awe, and preserve order in the world as well as property.
The same balance would be preserved were all the world destitute of
arms, for all would be alike; but since some will not, others dare not
lay them aside...Horrid mischief would ensue were one half the world
deprived of the use of them..." (Thomas Paine, I Writings of Thomas
Paine at 56 [1894])

"...the people are confirmed by the next article in their right to
keep and bear their private arms" (from article in the Philadelphia
Federal Gazette June 18, 1789 at 2, col.2,)

"Those, who have the command of the arms in a country are masters of
the state, and have it in their power to make what revolutions they
please. [Thus,] there is no end to observations on the difference
between the measures likely to be pursued by a minister backed by a
standing army, and those of a court awed by the fear of an armed
people." (Aristotle, as quoted by John Trenchard and Water Moyle, An
Argument Shewing, That a Standing Army Is Inconsistent with a Free
Government, and Absolutely Destructive to the Constitution of the
English Monarchy [London, 1697])

"No kingdom can be secured otherwise than by arming the people. The
possession of arms is the distinction between a freeman and a slave.
He, who has nothing, and who himself belongs to another, must be
defended by him, whose property he is, and needs no arms. But he, who
thinks he is his own master, and has what he can call his own, ought
to have arms to defend himself, and what he possesses; else he lives
precariously, and at discretion." (James Burgh, Political
Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses
[London, 1774- 1775])

"Men that are above all Fear, soon grow above all Shame." (John
Trenchard and Thomas Gordon, Cato's Letters: Or, Essays on Liberty,
Civil and Religious, and Other Important Subjects [London, 1755])

"The difficulty here has been to persuade the citizens to keep arms,
not to prevent them from being employed for violent purposes."
(Dwight, Travels in New-England)

"What country can preserve it's liberties if their rulers are not
warned from time to time that their people preserve the spirit of
resistance. Let them take arms." (Thomas Jefferson to James Madison,
Dec. 20, 1787, in Papers of Jefferson, ed. Boyd et al.)

(The American Colonies were) "all democratic governments, where the
power is in the hands of the people and where there is not the least
difficulty or jealousy about putting arms into the hands of every man
in the country. (European countries should not) be ignorant of the
strength and the force of such a form of government and how
strenuously and almost wonderfully people living under one have
sometimes exerted themselves in defense of their rights and liberties
and how fatally it has ended with many a man and many a state who have
entered into quarrels, wars and contests with them." [George Mason,
"Remarks on Annual Elections for the Fairfax Independent Company" in
The Papers of George Mason, 1725-1792, ed Robert A. Rutland (Chapel
Hill, 1970)]

"To trust arms in the hands of the people at large has, in Europe,
been believed...to be an experiment fraught only with danger. Here by
a long trial it has been proved to be perfectly harmless...If the
government be equitable; if it be reasonable in its exactions; if
proper attention be paid to the education of children in knowledge and
religion, few men will be disposed to use arms, unless for their
amusement, and for the defense of themselves and their country."
(Timothy Dwight, Travels in New England and New York [London 1823]

"It is not certain that with this aid alone [possession of arms], they
would not be able to shake off their yokes. But were the people to
posses the additional advantages of local governments chosen by
themselves, who could collect the national will, and direct the
national force; and of officers appointed out of the militia, by these
governments and attached both to them and to the militia, it may be
affirmed with the greatest assurance, that the throne of every tyranny
in Europe would be speedily overturned, in spite of the legions which
surround it." (James Madison, "Federalist No. 46")

"The right of the citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of a republic; since it
offers a strong moral check against the usurpation and arbitrary power
of rulers; and will generally, even if these are successful in the
first instance, enable the people to resist and triumph over them. And
yet, though this truth would seem so clear, and the importance of a
well regulated militia would seem so undeniable, it cannot be
disguised, that among the American people there is a growing
indifference to any system of militia discipline, and a strong
disposition, from a sense of its burdens, to be rid of all
regulations. How it is practicable to keep the people duly armed
without some organization, it is difficult to see. There is certainly
no small danger, that indifference may lead to disgust, and disgust to
contempt; and thus gradually undermine all the protection intended by
this clause of our national bill of rights." (Joseph Story,
Commentaries on the Constitution of the United States; With a
Preliminary Review of the Constitutional History of the Colonies and
States before the Adoption of the Constitution

"A strong body makes the mind strong. As to the species of exercises, I
advise the gun. While this gives moderate exercise to the body, it gives
boldness, enterprise and independence to the mind. Games played with the
ball and others of that nature, are too violent for the body and stamp no
character on the mind. Let your gun therefore be the constant companion of
your walks."
-Thomas Jefferson, Encyclopedia of T. Jefferson, 318
-(Foley, Ed., reissued 1967)

Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong. The right to arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or in the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The `right' to be a soldier does not make much sense. Life in the military is dangerous and lonely, and a constitutionally protected claim or entitlement to serve in uniform does not have to exist in order for individuals to exist if they so choose. Moreover, the right to bear arms does not necessarily have a military connotation because Pennsylvania, whose constitution of 1776. first used the phrase `the right to bear arms,' did not even have a state militia. In Pennsylvania, therefore, the right to arms was devoid of military significance. Moreover, such significance need not necessarily be inferred even with respect to states that had militias. Bearing arms could mean having arms. Indeed, Blackstone's commentaries spoke expressly of the `right to have arms'. An individual could bear arms without being a soldier or militiaman."
Excerpt from Prof. Eugene Levy's Origin Of The Bill Of Rights, pgs 134-135.

"The core meaning of the Second Amendment is a populist/republican/federalist one. Its central object is to arm `We the People' so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of the states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assuarance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of the individuals to posess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges and immunities of United States citizens protected by section 1 of the Fourteenth Amendment against state or local government action."
Laurence Tribe of Harvard Law School.

The first right of every human being is the right of self-defense. Without that right, all other rights are meaningless. The right of self-defense is not something the government bestows upon its citizens. It is an inalienable right, older than the Constitution itself. It existed prior to government and prior to the social contract of our Constitution. It is the right that government did not create and therefore it is a right that under our Constitution the government simply cannot take away. The framers of our Constitution understood this clearly. Therefore, they did not merely acknowledge that the right exists. They denied Congress the power to infringe upon that right.
Senator Larry Craig (R-Idaho), June 6, 2000 US Senate speech

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