Shot Full of Holes

Deconstructing John Ashcroft's Second Amendment

"What I am trying to clarify here is that I believe that there are constitutional inhibitions on the rights of citizens to keep and bear certain kinds of arms. And some of those I would think good judgment, 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."

—John Ashcroft, at his confirmation hearing for attorney general, responding to a question from Senator Dianne Feinstein (D-CA).

"I will advise the president, to the best of my knowledge, on legal matters. They will not be result-oriented; they will be law-oriented advices."

—John Ashcroft, at his confirmation hearing for attorney general, responding to a question from Senator Charles Schumer (D-NY).

On May 17, 2001, Attorney General John Ashcroft shook the foundation of the U.S. Justice Department's enforcement of federal gun laws, writing to National Rifle Association (NRA) chief lobbyist James Jay Baker on official Department of Justice stationery to proclaim a 180-degree shift in the Department's position regarding the Second Amendment to the U.S. Constitution. The timing of Attorney General Ashcroft's letter coincided with the NRA's annual meeting of members, where Baker touted the letter as evidence that "[i]n John Ashcroft, we have an Attorney General who agrees with us."¹ In his letter [please see Appendix A], Attorney General Ashcroft detailed a position on the Second Amendment²—interpreting it to explicitly protect an individual right to privately possess firearms—that directly conflicts with longstanding legal precedent, historical evidence, and established policy of the Department of Justice. By seeking to elevate firearms ownership to the status of a fundamental constitutional right, Attorney General Ashcroft has placed his NRA membership before his responsibility as the nation's chief law enforcement officer, jeopardizing the Department's ability to vigorously enforce this nation's gun laws and keep guns out of the hands of felons, fugitives, stalkers, and other prohibited persons.

The Violence Policy Center (VPC) was the first gun control organization to obtain a copy of the Ashcroft letter, which was made available at the NRA's annual meeting. The VPC publicly criticized Attorney General Ashcroft, an NRA Life Member, for pandering to a special interest group which donated substantial sums of money to his unsuccessful 2000 reelection campaign in Missouri for the U.S. Senate. The VPC also criticized Attorney General Ashcroft for abandoning the long-established position of the Justice Department and undermining ongoing litigation by the Department. Most significantly, the letter contradicted the position taken by the Justice Department in United States v. Emerson³, pending before the United States Court of Appeals in New Orleans. The Department's longstanding position on the Second Amendment was detailed in briefs filed with the court in New Orleans, as well as in an August 22, 2000, letter by former Solicitor General Seth P. Waxman, who affirmed the Department's position [please see Appendix B]. The irreconcilable conflict between the Department's established position and the letter has not gone unnoticed by the criminal defendant in the Emerson case. On July 18, 2001, Timothy Joe Emerson filed a motion to have the Ashcroft letter considered as supplemental authority by the court of appeals, "for it documents the government's position on a central issue in the case as explained by the Attorney General himself."⁴

Attorney General Ashcroft's letter to the NRA was immediately hailed by the gun lobby. The NRA cited it as proof of a shift in Department policy on the Second Amendment—a claim the Department has not disputed. According to NRA chief lobbyist James Jay Baker:

[T]his dramatically reverses the "collective rights" theory held by the Clinton administration....It is a welcome change that reverses the opinion of the Clinton-Gore Solicitor General who claimed that the Second Amendment "precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized militia."⁵

Gun control supporters condemned the letter, charging that Attorney General Ashcroft had abandoned his Senate confirmation hearing pledge to defend federal gun laws from spurious and frivolous pro-gun legal challenges.

Although Attorney General Ashcroft's spokesperson freely admitted that the "the attorney general was expressing department policy in the letter to the NRA,"⁶ the Department of Justice sought to downplay the significance of the letter. The Department claimed that the letter did not signal a change in the Department's commitment to enforce existing gun laws;⁷ rather, it was asserted, the letter simply restored a view of the Second Amendment that existed before the anti-gun Clinton Administration.

Nothing could be further from the truth. By forcing what the NRA's Baker termed "a distinct shift"⁸ inconsistent with Justice Department policy on the Second Amendment that can be traced back more than 65 years, to Republican and Democratic administrations alike, Attorney General Ashcroft has opened up every federal restriction on the acquisition and possession of firearms to a constitutional challenge. Armed career criminals who are serving time in federal prison today will be emboldened to file petitions for a writ of habeas corpus, alleging that their convictions violated this newfound constitutional right. Violent felons, charged with possession of assault weapons, will challenge their indictments on the grounds that the federal assault weapons ban is unconstitutional. Mandatory background checks under the Brady Handgun Violence Prevention Act will be attacked as an unconstitutional infringement of a citizen's newfound right to acquire handguns instantly.

The NRA and gun criminals will seek to have the Second Amendment incorporated against the states, so that more restrictive state and local gun control laws—such as municipal handgun bans—can be struck down as unconstitutional. Emboldened by this recent policy shift, the NRA already has indicated that it intends to bring test cases challenging the District of Columbia's ban on handguns. As NRA Executive Vice President Wayne LaPierre told ABC News: "I think it's a great test case for this. When we take a case to the Supreme Court, I think we're going to win."⁹

Rather than continue a theoretical debate over which side's view of the Second Amendment is correct—the Ashcroft/NRA view or the longstanding position of the Justice Department—the Violence Policy Center has analyzed the Ashcroft letter to evaluate the accuracy and strength of the Attorney General's argument. The review was prompted by several factors. First, the VPC recognizes the highly irregular nature of this letter. For the sitting Attorney General to send official correspondence describing a view of a legal issue that is diametrically opposed to the position taken by the Justice Department in ongoing litigation is most unusual and, to the VPC's knowledge, unprecedented. Second, even the most cursory reading of the letter reveals that Attorney General Ashcroft, in citing Supreme Court cases that mention the Second Amendment, omits any reference to the one case in which the Court actually ruled on the amendment, holding that it decidedly does not secure an individual right to bear arms. Third, far from trying to dissuade critics that the letter signals a shift in policy, the Department of Justice is in the process of entrenching this policy shift by ordering the Department's Office of Legal Counsel (OLC) to prepare a formal opinion on the Second Amendment.¹⁰ For OLC to prepare such an opinion at this time is highly irregular, as the Second Amendment is currently the subject of ongoing litigation in the Emerson case and the Department of Justice set forth its position regarding the Second Amendment at great length in the briefs filed in the court of appeals. This is precisely why OLC—in its traditional role—refrains from commenting on subjects under litigation by the Department, instead allowing the Department's litigators in individual cases to lay out its positions.¹¹ Fourth, the Department's aggressive attack on its own longstanding policy regarding the Second Amendment and on current law conflicts with assurances Attorney General Ashcroft provided to the Senate Judiciary Committee during his confirmation hearings. Answering queries as to whether his personal views on the Second Amendment would affect his ability to carry out the law enforcement programs of the Department of Justice, Ashcroft replied:

What I am trying to clarify here is that I believe that there are constitutional inhibitions on the rights of citizens to keep and bear certain kinds of arms. And some of those I would think good judgment, 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.¹²

Finally, the VPC felt compelled to meet the challenge that the NRA posed to critics of the Ashcroft letter in a laudatory article that appeared as the cover story in one of the NRA's publications. Pro-gun lawyer Stephen Halbrook praised the letter, calling it "very well written" and noting that "the Attorney General's citations of original sources is critical to the strength of the letter."¹³ He defied critics to rebut the letter's claims based on the authorities Ashcroft cites:

By setting forth both the clear meaning and the citations, I don't know how the critics are going to be able to avoid confronting the actual evidence.¹⁴

The VPC has taken Halbrook at his word and confronted the "actual evidence" in the Ashcroft letter head-on. What the VPC has found is troubling—the Ashcroft letter collapses of its own weight under thorough analysis. The letter contains gross factual errors, takes historical material out of context, misquotes sources, and portrays as authoritative cases that have nothing at all to do with the Second Amendment. This deconstruction of the Ashcroft letter reviews each of the Attorney General's assertions and the documentation he provides in support. It reveals that the letter is an astonishingly inadequate piece of legal reasoning and an exemplar of wishful, and at times bizarre, revisionist history.

While the VPC holds clear views in the debate over the meaning of the Second Amendment,¹⁵ Attorney General Ashcroft's letter was reviewed dispassionately and carefully, each assertion scrutinized to determine its factual and contextual accuracy. The following deconstruction follows the content and order of the Ashcroft letter. Each section of the analysis leads off with a quotation from the relevant section of the letter being addressed. Each quotation is immediately followed by an analysis.

1. Transcript of remarks of James Jay Baker at the NRA annual meeting of members, May 19, 2001, at 6.
   
   
2. The Second Amendment provides, in full, "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." U.S. Const. Amend. 2.
   
   
3. 46 F. Supp. 2d 598 (N.D. Tex. 1999), appeal docketed, No. 99-10331 (5th Cir. March 30, 1999).
   
   
4. Appellee's motion to allow letter to be submitted under Fed. R. App. P. 28(j) in United States v. Emerson, No. 99-10331 (5th Cir.), July 18, 2001, at 1-2.
   
   
5. James O.E. Norell, "In Step with the Founding Fathers," America's 1st Freedom, July 2001, at 35.
   
   
6. Craig Gordon and Tom Brune, "Ashcroft Changes U.S. Gun Position/Says 2nd Amendment Applies to Individuals," Newsday, July 12, 2001, at A4.
   
   
7. David S. Cloud, "Ashcroft Finding May Provoke Challenges to Federal Gun Laws," The Wall Street Journal, July 11, 2001, at A3.
   
   
8. Naftali Bendavid, "Ashcroft Alters U.S. Gun Stance", Chicago Tribune, July 13, 2001, at 7.
   
   
9. "Attorney General Declares Individual Right to Bear Arms," ABC News/ Reuters, July 12, 2001, at http://more.abcnews.go.com/sections/us/dailynews/guncontrol_010711.html.
   
   
10. David S. Cloud, "Ashcroft Finding May Provoke Challenges to Federal Gun Laws," The Wall Street Journal, July 11, 2001, at A3.
    
    
11. OLC has a longstanding (though occasionally broken) tradition of "disinterested" constitutional analysis. Although OLC may reconsider past court decisions from time to time, it does not do so for political reasons. Given the slapdash nature of the Ashcroft letter and the Attorney General's political motivations for reconsidering previous OLC Second Amendment opinions, it comes as no surprise that the Department freely admits that the letter to the NRA "would carry the same legal weight as a formal legal opinion in stating department policy." Craig Gordon and Tom Brune, "Ashcroft Changes U.S. Gun Position/Says 2nd Amendment Applies to Individuals," Newsday, July 12, 2001, at A4.
    
    
12. Confirmation Hearing of the Honorable John Ashcroft (Day Two), January 17, 2001, available at www.washingtonpost.com/wp-srv/onpolitics/elections/ashcroft_hearing text011701.htm.
    
    
13. James O.E. Norell, "In Step with the Founding Fathers," America's 1st Freedom, July 2001, at 35-36. A portrait of the Attorney General adorns the cover of the magazine and a full-page photograph of Ashcroft appears at the beginning of the article.
    
    
14. Id. at 36.
    
    
15. See Josh Sugarmann and Kristen Rand, Violence Policy Center, Cease Fire: A Comprehensive Strategy to Reduce Firearms Violence 62 (1997).