Ashcroft makes his own gun rules.

Ashcroft makes his own gun rules.

Ashcroft makes his own gun rules.

The law, lawyers, and the court.
Sept. 26 2002 6:59 PM

Gun Crazy

A trigger-happy AG takes out the courts and Constitution.

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.

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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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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."

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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 briefthat 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."

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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.