The Wrong Choice to Enforce America's Gun Laws
During the first year of the Clinton Administration, 39,595 American lives ended in gunfire. By 1998, the latest year for which statistics are available, that number was reduced by nearly a quarter to 30,708. Much of this progress is attributable to innovative policy strategies and vigorous enforcement of our nation's gun laws by the U.S. Department of Justice (DOJ). America still has a long way to go to end the scourge of gun violence. Unfortunately, John Ashcroft as Attorney General would take us in exactly the wrong direction.
John Ashcroft is undeniably sympathetic to the positions and policies of the National Rifle Association and the gun industry. In its "Election ‘94" round-up, the NRA boasted, "Gun Owners Win Big!" and counted Ashcroft as one of the new senators NRA members had worked hard to elect. Last May, NRA chief lobbyist James Jay Baker stated that reelecting Ashcroft to the U.S. Senate was one of the organization's top priorities. According to The Hill newspaper, Mr. Baker said, "That is a clear good-guy bad-guy race from our stand point. We plan to do whatever it takes to make sure John Ashcroft retains that seat."1
Not surprisingly, Ashcroft's selection has been hailed by the gun lobby. On January 5, 2001, Neal Knox, former NRA board member and leading pro-gun activist, declared, "George W. Bush's now-complete cabinet is the most solidly conservative, and most generally pro-gun, of any President in memory—including Ronald Reagan's."2
During the 2000 elections, the National Rifle Association claimed that if George Bush won the presidency, the NRA would be working out of his office. With John Ashcroft as Attorney General, the NRA will be firmly entrenched in the Department of Justice.
The shared positions of John Ashcroft and the NRA are hostile to an important mission of the Department of Justice: vigorous and impartial enforcement of our nation's gun laws. The following are examples of areas where Ashcroft's record and pro-NRA sentiments are likely to conflict with the mission of the Department of Justice.
John Ashcroft would be the first Attorney General in recent history who has been the beneficiary of massive spending by a special interest group with a political agenda that is in direct conflict with the duties of the office. The NRA spent a combined total of $374,137 on behalf of Ashcroft in his failed 2000 Senate reelection bid. The NRA's Political Action Committee contributed $9,900 directly to the Ashcroft campaign and spent $339,237 in independent expenditures on his Senate effort. The NRA also contributed $25,000 to the Ashcroft Victory Committee in March of 2000.
Ashcroft supports NRA efforts to immediately destroy essential records maintained under the Brady law's National Instant Criminal Background Check System (NICS). NICS serves as the foundation for the background check required under the law. Currently the records are temporarily retained for six months because the FBI has determined that to be the time necessary to conduct audits of the system's accuracy and effectiveness. The Department of Justice has described the purpose of the six-month retention rule as follows:
In response to the document retention policy, the NRA sued the Department of Justice to require the immediate destruction of the records, which would have seriously undermined the effectiveness of the background check system.4 The NRA suit was dismissed by a federal appeals court on July 11, 2000. However, Ashcroft is on record as opposing the position of the Department of Justice and siding with the NRA. On July 21, 1998, he voted for legislation offered by Senator Robert Smith (R-NH) that would have required the FBI to destroy immediately any records relating to an approved handgun transfer.
As recently as last Congress, Ashcroft voted to weaken the Brady law. Current federal law provides the FBI with three business days to conduct background checks under the Brady Handgun Violence Prevention Act.5 The Department of Justice has determined that, while 95 percent of background checks are completed within two hours, "22 percent of all gun buyers who are found to be prohibited persons are not found to be prohibited until more than 72 hours have passed." The NRA has repeatedly argued, however, that 24 hours is sufficient time to complete the checks. This is in spite of the fact that the FBI has estimated that under a 24-hour rule, more than 17,000 people who were stopped by the current Brady instant check system in a six-month period would have been sold the firearms.
During the May 1999 Senate vote on whether to expand the current Brady background check to all sales at gun shows (not just those by licensed dealers), Ashcroft sided with the NRA and voted against the measure, notwithstanding the fact that the Department of Justice and the Department of the Treasury had recently issued a report concluding, "Gun shows provide a large market where criminals can shop for firearms anonymously."6 At the same time, Ashcroft supported the NRA's 24-hour position, voting in favor of legislation sponsored by Senate Judiciary Chair Orrin Hatch (R-UT) that would have weakened our nation's gun laws by reducing the time allowed to conduct the background check by all gun show sellers—including licensed dealers—from three business days to 24 hours.
Under President Clinton, the Department of Justice has taken the lead in prosecuting illegal gun traffickers. Of 1,090 cases involving illegal firearms trafficking recommended for prosecution by agents of the Bureau of Alcohol, Tobacco and Firearms, nearly 90 percent were referred to the U.S. Attorney's Office. The U.S. Attorney declined prosecution in only 10 percent of the cases. Many of these cases involved licensed gun dealers who were diverting large quantities of firearms to the illicit market.
In 1998 Ashcroft expressed serious concerns regarding a bill sponsored by Senate Judiciary Chair Orrin Hatch—the Violent and Repeat Juvenile Offender Act of 1997—which would have expanded federal authority to prosecute illegal firearm traffickers. Ashcroft's concerns centered on a provision in the bill that would have added federal firearms violations to the list of offenses that would trigger prosecution under the federal Racketeer Influenced and Corrupt Organizations (RICO) statute. The change would have subjected firearm traffickers to harsh federal penalties.
The Violence Policy Center has obtained a copy of a handwritten note to Larry Pratt, executive director of the Gun Owners of America (GOA),7 in which Ashcroft thanked Pratt for "bringing to my attention the RICO (2nd amendment) problems with the juvenile justice bill." He went on to say, "I am working to see that the RICO provisions are stripped from the bill prior to floor consideration."8 He then referenced a letter that he and Senator Larry Craig (R-ID) had written to Senator Hatch. The bill was later amended to weaken the provision dealing with illegal firearms trafficking.
Ashcroft opposes the federal ban on assault weapons and high-capacity ammunition magazines.9 This 1994 law, which passed with the support of virtually every major national law enforcement organization in the United States, is scheduled to sunset on September 13, 2004. Reauthorization and much-needed improvements in the law will require the support of the nation's chief law enforcement officer. The NRA strongly opposes the ban on semi-automatic assault weapons and high-capacity magazines and has vigorously worked to repeal it. Ashcroft has stated his opposition to the ban.10 He twice voted—on May 13, 1999, and on July 28, 1998—against legislation offered by Senator Dianne Feinstein (D-CA) to ban the importation of high-capacity magazines. Absent reauthorization in 2004, it will be legal to once again manufacture semi-automatic assault weapons—including the AK-47 used most recently in the shooting of seven in a Wakefield, Massachusetts, Internet firm and the TEC-9, the weapon of choice of the killers at Columbine High School—along with high-capacity ammunition magazines which can hold 20, 32, or even 100 rounds of ammunition.
A Department of Justice led by John Ashcroft may literally result in more guns being put in the hands of convicted felons. The Department of Justice has resisted attempts by convicted felons to use the courts to obtain restoration of their firearm privileges. This is the direct result of Congress' refusal to continue funding for the federal "relief from disability" program, despite support for the program from the National Rifle Association. Until 1992, that program existed solely for the purpose of restoring the ability of felons convicted of federal crimes to legally buy and possess guns. In the 10-year period from 1982 until 1992, this guns-for-felons program processed 22,000 applications from convicted felons, and restored gun privileges to approximately one-third of those applicants. Crimes committed by felons who obtained "relief" include sexual assault, homicide, and firearm violations. When Congress de-funded the program in 1992, felons resorted to the courts as a backdoor avenue to obtain restoration of their firearm privileges. The Department of Justice has vigorously fought the cases brought by felons. To date, only the Court of Appeals for the Third Circuit has agreed to restore the gun privileges of felons although several other federal circuits have considered such cases. Following the Third Circuit's ruling, the lower courts have restored the gun privileges of at least three felons.
In addition, on May 14, 1999 Ashcroft voted for an amendment offered by Senator Orrin Hatch (R-UT) which would have required the FBI to create a database to identify felons who have been granted "relief" to ensure that these felons are able to easily buy firearms when their names are checked through the NICS. The amendment passed the Senate 48 to 47. This database would have included individuals such as Jerome Sanford Brower, who pleaded guilty in an international terrorist plot to transport explosives to Libya. The database would also have included Sherman Dale Williams, who pleaded guilty to two counts of illegal transfer of machine guns. Williams received "relief" despite the fact that local law enforcement officials expressed fears that he would be a threat to the community if armed. Many felons granted "relief" are subsequently rearrested. For example, Michael Paul Dahnert of Wisconsin was convicted in 1977 of burglary. He was granted "relief" in 1986. Two months after "relief" was granted, he was rearrested and charged with first degree sexual assault and four counts of second degree sexual assault. Dahnert received five years in prison.11
As Attorney General, Ashcroft will be charged with defending federal gun laws from lawsuits seeking to have them invalidated. This may well place all existing laws—as well as any new laws passed by Congress—at serious risk. The gun lobby, firearm manufacturers, or other plaintiffs routinely sue to overturn existing federal gun laws. This has been the case with the Brady Handgun Violence Prevention Act, which requires a background check on purchasers buying guns from licensed dealers. Also challenged in court were the federal assault weapons ban, the Gun Free School Zones Act, and the Domestic Violence Offender Gun Ban, which prohibits firearm possession by individuals convicted of misdemeanor crimes of domestic violence. In each of these cases, the Justice Department zealously defended the law in the courts.
Two important cases are currently pending in which the actions of the Department of Justice could be determinitive. In United States v. Emerson12, the Department is appealing a ruling which held that a federal law prohibiting firearms possession by persons subject to a restraining order for domestic violence is unconstitutional under the Second Amendment (this is virtually the only federal court ruling interpreting the Second Amendment as protective of an individual right). This case is now pending before the United States Court of Appeals for the Fifth Circuit. Whatever the outcome at the appeals court level, the case may be appealed to the U.S. Supreme Court. Ashcroft has made very clear that his interpretation of the Second Amendment comports with that articulated by the trial judge in Emerson13.
The second case was filed November 14, 2000, in the United States District Court for the District of Columbia.14 It seeks to weaken the laws regulating the transfer and possession of firearms regulated under the federal National Firearms Act (NFA). That law strictly regulates the manufacture, transfer, and possession of certain types of firearms including machine guns, silencers, short-barreled rifles and shotguns, and destructive devices. The NFA requires a background check of buyers of such weapons and that the firearms be registered with the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). The suit argues that certain components of the background check required before an NFA weapon may be transferred are unconstitutional. Specifically, the plaintiffs are challenging a regulation requiring certification by a local chief of police, county sheriff, district attorney, or other appropriate local official of the applicant's identity and that the local official has "no information indicating that the receipt or possession of the firearm would place the transferee in violation of local law or that the transferee will use the firearm for other than lawful purposes." This campaign is in response to the actions of some local law enforcement officials who out of a concern for public safety are often reluctant to complete such "sign-offs." Without this requirement, local law enforcement officials will have no control over how many of these dangerous weapons are brought into their jurisdiction.
Ashcroft endorsed, and worked on behalf of, a failed 1999 NRA-backed referendum in his home state of Missouri that would have allowed the carrying of concealed handguns by convicted criminals. Opponents of "Proposition B" pointed out that the measure would have granted concealed handgun licenses to convicted criminals, including child molesters and stalkers, throughout the state. Despite these serious concerns, Ashcroft did radio ads supporting the NRA's referendum that, according to Associated Press reports, "blanketed the Missouri airwaves."15 The NRA and Ashcroft lost the referendum on April 6, 1999, despite outspending their opponents by a five-to-one margin.
America deserves an Attorney General who will work hard to protect our gun laws and reduce gun violence. With John Ashcroft as Attorney General, America risks losing the ground it has gained in reducing firearm-related violence.
All contents © 2001 Violence Policy Center
The Violence Policy Center is a national non-profit educational foundation that conducts research on violence in America and works to develop violence-reduction policies and proposals. The Center examines the role of firearms in America, conducts research on firearms violence, and explores new ways to decrease firearm-related death and injury.