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 ttorney
General John Ashcroft has come under fire for what Boston Globe
columnist Tom Oliphant calls "coddling" gun owners. Oliphant's
attack was the latest round in the concerted assault on Ashcroft's
Second Amendment positions, which started this spring when Ashcroft
announced his view (since supported by the recent U.S. Court of
Appeals decision in
United States v. Emerson) that the Second Amendment
protects an individual right to arms.
Ashcroft's
stance was consistent with that of
the attorneys general for Ronald Reagan, Franklin Roosevelt, Abraham
Lincoln, and Andrew Jackson, among others. It was also consistent
with
most Supreme Court statements citing the Second Amendment, including
everything the Rehnquist Court has ever said. Ashcroft's view mirrored
repeated congressional declarations of the individual right to arms
— including in the Freedmen's Bureau Act of 1866, the Property
Requisition Act of 1941, and the Firearms Owners' Protection Act
of 1986. It's also compatible with a wide variety of gun controls,
as demonstrated by the Court of Appeals decision in Emerson,
which ruled that the particular federal gun law at issue did not
violate the Second Amendment.
Ashcroft was,
however, out of step with the antigun groups, who recognize that
a meaningful Second Amendment makes it impossible to ban guns across
the board. For the same reason, the attorney general was out of
step with
the position of the Clinton/Gore/Reno administration. Indeed,
the difference between the Bush/Ashcroft view of the Second Amendment
and the Clinton/Gore/Reno view was — as President Clinton admitted
— the reason Gore lost five close states, and thus the election.
Still smarting
from that humiliation, gun prohibition groups have decided to attack
Ashcroft for obeying federal gun statutes and for complying with
a regulation created by Attorney General Janet Reno. Last week,
on the morning Ashcroft was scheduled to testify before the Senate
Judiciary Committee, New York Times reporter Fox Butterfield
turned a
press release from a gun-prohibition group, the Violence Policy
Center, into a Times article. Ashcroft's opponents on
the Senate Judiciary then used the article to excoriate Ashcroft
for obeying the law. Predictably, gun-prohibition sympathizers like
Oliphant and the Atlanta Journal-Constitution's Cynthia Tucker
have begun piling on.
At issue was
Ashcroft's decision to tell the FBI that it couldn't start rummaging
though the federal records of legal gun buyers as part of
its terrorism investigation. Indeed, the law forbids the keeping
of such records in the first place. It does, however, authorize
the federal government to retain records of people — such as
illegal aliens, or people with temporary visas — who illegally
attempt to buy guns. Those records are available to the FBI for
any and every law enforcement purpose.
Mr. Butterfield
didn't bother to inform his Times readers about what federal
law actually says. So let's examine the laws directly.
Since 1998,
all federally regulated gun purchases require that the buyer obtain
approval from the FBI's "National Instant-Check System,"
which ensures that the buyer is not a "prohibited person."
NICS checks the buyer's name against a database of felons and other
prohibited people.
The NRA had
pushed the instant check as an alternative to the Brady Bill's waiting
period. As a compromise, Congress made the waiting period effective
for five years (1994-98) for handguns only, to be replaced in 1998
by the instant check on all guns. Determined to prevent NICS from
being perverted into a gun registration system, Congress —
thanks to votes of many Brady Bill supporters — specifically
forbade the government to compile records of lawful purchasers.
As enacted,
the national instant check law,
18 U.S. Code 922(t) provides that:
(2) If receipt
of a firearm would not violate subsection (g) or (n) or State law,
the [Instant-Check] system shall —
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the
call (other than the identifying number and the date the number
was assigned) and all records of the system relating to the person
or the transfer.
(Emphasis added.)
This means,
of course, that if the feds were following the law, there wouldn't
be any records to examine, since they're supposed to be destroyed
once a sale is approved.
It also means
that every congressman who voted for final passage of the Brady
Act in 1993 (including Senators Kennedy, Biden, and Leahy, as well
as then-Representative Schumer) voted for this explicit ban on keeping
the federal records of legal gun buyers.
The 1993 prohibition
was reinforcing a 1986 Congressional statute, the Firearms Owners'
Protection Act (FOPA), which creates a blanket ban on a federal
gun registry. The relevant part of FOPA,
18 U.S. Code 926, provides:
(a) The Secretary
may prescribe only such rules and regulations as are necessary to
carry out the provisions of this chapter... No such rule or regulation
prescribed after the date of the enactment of the Firearms Owners'
Protection Act may require that records required to be maintained
under this chapter or any portion of the contents of such records,
be recorded at or transferred to a facility owned, managed, or controlled
by the United States or any State or any political subdivision thereof,
nor that any system of registration of firearms, firearms owners,
or firearms transactions or dispositions be established. Nothing
in this section expands or restricts the Secretary's authority to
inquire into the disposition of any firearm in the course of a criminal
investigation.
Of the current
members of the Senate Judiciary Committee who were in the Senate
in 1986, only Kennedy voted against passage of FOPA. Senators Biden,
Leahy, Hatch, Thurmond, Grassely, and Specter all voted for it,
and hence for the registration ban.
In addition,
the annual appropriation for the Department of the Treasury (which
controls the Bureau of Alcohol, Tobacco and Firearms) always contains
a ban on spending any funds for creation of a federal gun registry.
Quite plainly,
all this means that (1) records aren't supposed to be kept on legal
purchases of firearms, and (2) it's illegal to establish a national
gun registration system. This was underscored in the recent case
of
RSM v. Buckles, 254 F.3d 61 (4th Cir., 2001),
where the federal Court of Appeals pointed out that the government's
power to scrutinize gun records was limited, and that a national
gun-registration system — even one established through "backdoor
efforts" — was illegal.
Even so, when
preparing to implement the National Instant Check System, then-Attorney
General Reno announced that the government would keep records on
lawful gun purchasers for 180 days. The stated purpose of these
records was to audit NICS, to make sure it wasn't being misused
(e.g., to ensure that gun dealers were not requesting instant checks
on people who were not their customers — for example, in case
a gun-store owner started requesting background checks on his daughter's
boyfriends).
The NRA sued,
arguing that by saying the records had to be destroyed, Congress
did not mean they should be destroyed "eventually, when the
Attorney General gets around to it."
The District of Columbia Court of Appeals, in a 2-1 decision,
upheld the 180-day record retention. The majority opinion, written
by a Clinton appointee, claimed that federal law "does not
prohibit all forms of registration." The Clinton majority also
asserted that because Congress did not say the records had to be
destroyed "immediately," the records could be destroyed
sooner — or later.
Dissenting,
Judge David B. Sentelle, a Reagan appointee, retorted that Congress
had been perfectly clear. "The Attorney General's position,"
wrote Sentelle, "strikes me as reminiscent of a petulant child
pulling her sister's hair. Her mother tells her, 'Don't pull the
baby's hair.' The child says, 'All right, Mama,' but again pulls
the infant's hair. Her defense is, 'Mama, you didn't say I had to
stop right now.'"
The Senate
responded to Reno's machinations by restating its 1993 intent. In
1998, Senator Bob Smith (R., N.H.) proposed a rider to an appropriations
bill to mandate immediate records destruction. The Senate approved
the Smith Amendment, 69 to 31, thanks in part to the support of
Senators Daschle, Leahy, and Murray. Later, a conference committee
stripped the Smith Amendment, as well as some other non-appropriations
riders, from the appropriation bill.
During the
2000 election, candidate Bush condemned the Clinton/Gore/Reno registry
of legal gun buyers, and promised to terminate it.
Meanwhile,
Reno promulgated a regulation cutting the retention time to 90 days.
The Reno regulation forbids the use of the NICS registry for general
law enforcement purposes, while allowing registry use for auditing
the performance of NICS, as well as for civil or criminal cases
arising from the operation of NICS.
Thus, it is
plainly illegal for the FBI to dig into the NICS registry for general
investigations. Had Attorney General Ashcroft allowed such access,
he would have violated the law. (This summer, Ashcroft proposed
a revised regulation to cut the retention time to 24 hours, but
even this shorter time period violates the congressional mandate
that records be destroyed, not kept for "a short period of
time.")
Fox Butterfield
neglected to tell his readers about the 1986 law forbidding a federal
gun registry. He also didn't tell them about the 1993 law mandating
destruction of records on legal buyers. Of the Smith Amendment —
which passed the Senate 69-31 — Butterfield wrote, "That
amendment was defeated."
The Senate
Democrats had some basis for being angry with Ashcroft after he
began the Senate hearing by declaring, "To those who scare
peace-loving people with phantoms of lost liberty, my message is
this: Your tactics only aid terrorists, for they erode our national
unity and diminish our resolve." Ashcroft may be correct that
his proposals are important for antiterrorism, and do not violate
the Constitution. But our system of checks and balances works best
when all potential civil-liberties restrictions are subjected to
critical public scrutiny. Indeed, the value of the Leahy/ACLU loyal
opposition was demonstrated at the Ashcroft hearing, when the attorney
general promised the military tribunals would not normally meet
in secret, and would be confined exclusively to terrorist offenses.
(Both positions are much more rights-protective than the text of
President Bush's November 13
executive order authorizing the tribunals.)
Ashcroft's
harsh words against the skeptics were unfortunately reminiscent
of Bill Clinton's denunciation of the civil liberties groups that
lobbied against
his plan to use the Oklahoma City bombing as a pretext for a
huge expansion of federal surveillance and wiretapping, and use
of the military in domestic law enforcement — although none
of the Clinton proposals would even arguably have prevented the
bombing.
The Democrats
also feel betrayed that the Bush administration announced the military
tribunals, the eavesdropping on attorney-client conversations, and
similar new measures before the ink was barely dry on the
misnamed USA Patriot Act, in which Senate had caved in to administration
pressure for even more government surveillance, and for the power
to conduct secret searches of homes and businesses. These new laws
do not sunset and are not restricted to terrorism cases;
they apply as well to federal enforcement of laws about pornography,
drugs, endangered species, child support, and everything else.
After the House
Judiciary Committee unanimously passed a much better, and properly
focused, antiterrorism bill, Tom Daschle pressured Senate Judiciary
Committee Chair Pat Leahy to surrender to Ashcroft's demands for
a much broader bill. Leahy, did so. Leahy & co. feel double-crossed
now that the administration has implemented military tribunals by
executive decree, after Congress had already given the administration
almost everything it asked for.
A proper response
would be for the Senate Judiciary to commence hearings on repealing
or sun setting the many non-terrorism provisions of the USA Patriot
Act, which consist mostly of items that have been on the FBI bureaucracy's
wish list for many years, and that had never been able to pass previous
Congresses.
Instead, we
have the absurd spectacle of senators denouncing the attorney general
for respecting civil liberties, and for obeying federal statutes
and his predecessor's regulation. At Ashcroft's confirmation hearings,
Democrats extracted absolute promises that he would obey and enforce
all the laws, even ones he disagrees with. Now, he's being skewered
for not inventing a loophole in federal laws that allow no room
for loopholes.
Would it make
sense for Congress to change the law to allow registration of legal
gun purchasers, to assist terrorism investigations? No one has yet
made such a case. The FBI has gone fishing for every possible bit
of information on the 600 aliens who have been detained. This doesn't
mean that we need to drastically reduce the privacy of half our
citizen population (about half of all households own guns) simply
for the sake of fishing expeditions.
Remember, current
law allows record retention for people who illegally attempt to
buy guns. It would also allow putting the name of every alien with
a temporary visa, and every known illegal alien, into the FBI database
of prohibited persons — since those people cannot buy guns
lawfully. [
18 USC Sec. 922(d)(5)(B) & (g)(5)(B)].
Yet the St.
Petersburg Times, perhaps the most antigun daily newspaper in
America, wrongly told its readers last Sunday that Ashcroft had
cut off access to records of illegal aliens who had been stopped
from buying guns.
Current law
also allows gun tracing — the investigation of the sales history
of a particular firearm. If the FBI finds a firearm in the home
of a detained person, the Bureau of Alcohol, Tobacco and Firearms
is allowed to trace the gun (using its serial number) from its manufacturer
to the wholesaler to the retail store. From there, the BATF can
interview the person who bought the gun, whoever he transferred
it to, and so on.
As part of
the tracing that is already allowed, the BATF compiles lists of
guns used in crimes, and can trace ownership records. The BATF has
successfully connected some of the guns on its trace list with some
of the detained people.
We don't know
if any of the detained people had permanent resident status (which
would allow them to buy guns). It's also possible that an illegal
alien or a temporary could obtain a driver's license in his own
name, buy a gun, and get approved by NICS. The problem is that,
according to the General Accounting Office, some — but not
all — non-immigrant aliens and known illegal aliens are put
on the NICS prohibited list. What we need is better record keeping
on aliens, not on law-abiding Americans.
Yet —
even for aliens who slipped through the current, incomplete NICS
list — if anyone purchases more than one handgun in a five-day
period,
his purchases are reported to federal and local law enforcement,
and those records are currently available for checking.
It might help
the FBI to gather information on detained suspects if every time
a person checked into a hotel or motel, a record were kept by the
federal government. They could then study the suspect's travel patterns.
Yet we don't register all hotel and motel stays for the entire population.
The privacy interests of the American people are held to outweigh
the possible benefit to law enforcement.
Similarly,
we could require the registration of everyone who purchases or checks
out a book on nuclear physics or biological or chemical warfare.
It's hard to deny that it would be helpful for the FBI to be able
to check this database against the names of the detainees. But we
don't keep lists of people who own books — even especially
dangerous or incriminating books — because First Amendment
and privacy rights are more important.
The case against
gun registration is stronger still. Even besides the privacy issue,
there is the undeniable fact that gun registration lists have been
repeatedly used for gun confiscation. This has happened in California,
New York City, England, Canada, Australia, and Nazi-occupied Europe,
among other places.
Before Sarah
Brady became head of Handgun Control, Inc. (now renamed "The
Brady Campaign"), her predecessor, the late Nelson T. "Pete"
Shields, explained the plan to The New Yorker in 1976:
"The first
problem is to slow down the number of handguns being produced
and sold in this country. The second problem is to get handguns
registered. The final problem is to make possession of all handguns
and all handgun ammunition — except for the military, police,
licensed security guards, licensed sporting clubs, and licensed
gun collectors — totally illegal." Richard Harris, "A Reporter
at Large: Handguns," New Yorker, July 26, 1976, p. 58.
Gun confiscation
is, of course, an indispensable tool for tyranny, as our Founders
knew — and as Mullah Omar proved quite recently.
As the Boston Globe reported:
Omar guaranteed
the residents a peaceful and secure community if they agreed to
surrender their arms to him. If the residents were ever threatened
by someone from outside, Omar pledged to be responsible for their
safety.
Within three
or four days, everybody in the town surrendered their weapons
to Omar...
Congress was
right to outlaw federal gun registration, and Attorney General Ashcroft
is right to obey the law. The media and the Senate — which
behaved with such irresponsible passivity when Ashcroft rammed the
so-called "USA Patriot Act" through Congress — ought
to stop demanding infringements of the Second Amendment. Instead,
they should start opposing all efforts to further erode the
Bill of Rights. Attorney General Ashcroft, meanwhile, needs to stop
denouncing those who are defending the Fourth and Fifth Amendments
with the same commendable scrupulousness with which he protects
the Second.
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