Another feature story by the none other, Dick Dahl. lol ~Amanda

Ashcroft’s Second Amendment Action Poses Broad Threat
6/4/2002

Feature Story
by Dick Dahl

Attorney General John Ashcroft’s job as the nation’s top prosecutor is to put criminals behind bars. But his recent unilateral reversal of government policy on the meaning of the Second Amendment has handed criminals a new weapon that they can use to defend themselves in court.

The first signal appeared on May 15, when lawyers for John Walker Lindh, the American who is accused of fighting for the Taliban, filed a motion to dismiss the firearms charge that the government had filed against him. They said that the charge, one of 10 counts filed against Lindh, is a violation of the Justice Department’s new interpretation of the Second Amendment as an absolute guarantor of individual rights to own and use guns.

Then, on May 30, the Washington Post reported that attorneys for two men accused of violating the District of Columbia’s handgun ban are arguing that the law is unconstitutional based on the administration’s new position on constitutional gun rights.

These motions by the lawyers for Lindh and the Washington, D.C. defendants are probably the first of a wave. As Mathew Nosanchuk, litigation director and legislative counsel at the Violence Policy Center, says, “You’re going to have lots of criminal defendants making these claims. In addition, you’re going to have the NRA challenge all kinds of laws.”

Many outraged voices have arisen since early May, when Solicitor General Ted Olson filed papers on two cases with the U.S. Supreme Court on behalf of Ashcroft stating that “the current position” of the U.S. government is that the “collective rights” interpretation of the amendment, as established by the U.S. Supreme Court, is simply wrong. That interpretation, established in the case of U.S. v. Miller in 1939, concluded that the Second Amendment guaranteed the collective right of states to form armed militias.

Bill Press of Tribune Media Services wrote an opinion piece (posted on www.cnn.com) in which he accuses Ashcroft of engaging in “a shocking display of executive arrogance” to “single-handedly reverse….29 years of federal policy on guns.” Furthermore, Press wrote, “(e)ven if Ashcroft disagrees with official policy on guns, it’s not in his power to change it.”

Aschroft’s arrogance in trying to reverse judicial precedent is one thing. Another is what appears to be a contradiction of the pledge he made during his confirmation hearings that he would not allow his personal beliefs to affect his duty to uphold the law of the land no matter what he may think of it.

During his confirmation hearings, Sen. Dianne Feinstein (D-CA) asked him about his position on the Second Amendment and gun laws. He answered, “What I am trying to clarify here is that I believe there are constitutional inhibitions on the rights of citizens to keep and bear certain kinds of arms. And some of those I would think goodjudgment, some of those I’d think bad judgment. But as attorney general, it’s not my judgment to make that kind of call my judgment. My responsibility is to uphold the acts of the legislative branch of this government in that arena, and I would do so and continue to do so in regard to the cases that now exist and further enactments of the Congress.”

Following Ashcroft’s issuance of the Second Amendment memo in early May, Michael Barnes, president of the Brady Center to Prevent Gun Violence, responded by saying, “This action is proof positive that the worst fears about Attorney General Ashcroft have come true: his extreme ideology on guns has become government policy.” The Coalition to Stop Gun Violence said in a statement: “What is astounding about this blatant political act by Attorney General John Ashcroft is that the Justice Department did not need to make the assertion that the Second Amendment protects an individual right to bear arms in order to protect its legal position in the two cases.”

Curiously, however, even though Ashcroft’s action poses one of the greatest threats to common-sense gun regulation ever, there have been precious few calls for action against Ashcroft by gun-violence-prevention groups. “It’s been relatively quiet,” said Maura Keefe of the year-old Alliance for Justice program, Gun Industry Watch. “But to be motivated, people have to understand the threat.”

One group that has been banging a critical drum on Ashcroft’s performance as attorney general has been People for the American Way. The organization recently completed a report on Ashcroft’s first year in office, “The Triumph of Right-Wing Ideology Over Our Constitution and Laws,” which includes a summary of his extraordinary actions to undermine law enforcement. Besides the Second Amendment turnaround, the Ashcroft Justice Department also halted efforts by the FBI to access gun-purchase records of potential terrorists.

The legal reality of the Justice Department’s action on the Second Amendment is that it may very well come to constitute an impediment to prosecutors and lawmakers alike. “There’s no question this is going to embolden all kinds of efforts on the part of gun-rights groups to litigate things,” said Saul Cornell, an Ohio State University associate professor of history who has written about the history and politics of gun control. Nosanchuk of the VPC agrees, saying that the new interpretation will now make it easier for them to argue first that prospective new laws violate the Second Amendment. He also points to the potential influence it may have on the assault-weapons ban, which will come up for Congressional action before it’s scheduled to sunset in 2004.

Still, while people are talking about the content of Ashcroft’s memos, what about the legitimacy of the action itself? Nosanchuk, for one, contends that it lacks legitimacy. He said that the Ashcroft memo was based on the one letter he sent to the NRA last year at the organization’s request, in which he said that he agreed with the gunlobby’s individual-rights intepretation of the Second Amendment. “The NRA letter was prepared without any consulting career people, and it provides the basis for this conclusory memorandum that Ashcroft sends to U.S. attorneys. There’s the letter and there’s a conclusory memo that’s stapled to the back of a brief. How is that legitimate?”

One of the responses to that very question is that it is legitimate because a three-judge federal appellate panel last year upheld, by 2-1, the finding by a judge in a lower court that the Second Amendment provides the individual right. That appeals court, the Fifth Circuit, is considered by many to be the most conservative in the country. In addition, Nosanchuk counters, as many other lawyers have, that the appellate ruling was qualified as nonbinding, nonprecedential “dicta.”

“So here you have a judicial activist judge who does this Emerson case, which is then relied on by an executive-branch activist, Ashcroft, to produce this illegitimate result. It’s ironic. I remember Ashcroft sitting in confirmation hearings when he was a senator railing against judicial activists. So then a judicial activist decision becomes one of the bases for his Second Amendment flip-flop.”

Are there other reasons for the flip-flop? The new website, www.gunguys.com thinks so. A recent article posted on that site suggests that one likely answer comes from following the enormous flow of money that the NRA has given Ashcroft when he was in office and seeking reelection. The article points out that in the 2000 election cycle, the NRA and its political action committees spent a combined total of $534,668 on behalf of Ashcroft in his failed Senate re-election bid.

Even though criminal defendants and gun-rights activists have already begun scurrying to take advantage of the new interpretation, the damage hasn’t necessarily been done yet — as Nosanchuk points out, the danger comes when the new view takes “traction” in the courts. He argues that Congress has a responsibility to hold Ashcroft accountable for breaking the promises that he made during his confirmation hearings. But he also points out that because gun control and the Second Amendment are volatile issues, especially during an election year, there’s little motivation for members of Congress to do so.

Which leaves it to the people. Nosanchuk encourages activists and anyone interested in gun-violence prevention to contact their own U.S. representatives, but especially Democratic members of the Senate Judiciary Committee, to express their displeasure. The message, he said, is a simple one: “This guy basically has said one thing and done another. He’s basically lied.”

If so, Nosanchuk says John Ashcroft must be held accountable for his actions.