Shot Full of Holes
Deconstructing John Ashcroft's Second Amendment
This Violence Policy Center analysis, Shot Full of Holes: Deconstructing John Ashcroft's Second Amendment, reveals the extent to which U.S. Attorney General John Ashcroft has undercut and jeopardized the Justice Department's enforcement of federal gun laws. On May 17, 2001, Ashcroft sent a letter to National Rifle Association (NRA) chief lobbyist James Jay Baker that announced a drastic shift in the Department's position regarding the Second Amendment to the U.S. Constitution. In his letter, NRA Life Member Ashcroft told the NRA that he believes the Second Amendment protects the private ownership of firearms for lawful purposes.
The Ashcroft Justice Department freely admits that the Attorney General's letter, written on official stationery, does not merely express his personal views; it sets Department policy on the Second Amendment. At the same time, however, the Department has sought to allay fears that this policy change will adversely affect federal enforcement of gun laws. Nothing could be further from the truth. Ashcroft's pronouncement flatly contradicts Supreme Court precedent on the amendment, historical evidence, and longstanding Justice Department policy dating back more than 65 years.
Moreover, the letter flatly contradicts the Department's current litigating position in United States v. Emerson, a case pending before the federal court of appeals in New Orleans. In Emerson, the Justice Department appealed the decision of federal district court judge Sam R. Cummings, who ignored controlling legal precedents to find that domestic abusers have a constitutional right to possess firearms under the Second Amendment. In the Emerson appeal, the Department restated in no uncertain terms its unwavering position that the Second Amendment does not create an individual right. However, by elevating the Second Amendment to a constitutional right akin to free speech, the Attorney General Ashcroft has undermined the Department's own litigation position in Emerson and paved the way for violent gun criminals and the gun lobby to challenge the constitutionality of every federal gun law on the books.
The Ashcroft letter is a highly irregular pronouncement of Department policy, and the Violence Policy Center felt compelled to analyze the letter's contents, especially because Ashcroft buttresses his interpretation of the Second Amendment with references to Supreme Court cases, legal scholarship, statements by the Founding Fathers, and a former attorney general. However, despite attempts to represent these materials as favorable to his view, the Ashcroft letter collapses of its own weight. And Ashcroft's omission of key sources reveals the letter to be inadequately researched, weakly constructed, and hopelessly biased. Ultimately the letter is little more than a predetermined conclusion in search of supporting documentation.
The VPC analysis demonstrates conclusively that the historical sources and legal precedents Ashcroft cites in fact support a reading of the Second Amendment that encompasses the entire provision�one which indisputably links the ownership of firearms to participation in a well-regulated militia. Furthermore, Ashcroft's letter blatantly neglects to mention many references which should have been included; such as the Supreme Court's 1939 decision in United States v. Miller; the Department's position in the pending Emerson case; and the longstanding litigating and policy position of the Justice Department, all of which contradict his position.
Ashcroft's use of legal precedent and historical evidence is extremely misleading and inaccurate. Although too numerous to completely summarize, the Ashcroft letter's omissions, mistakes, and misrepresentations include:
For the Ashcroft letter to serve as an official statement of policy on the Second Amendment, with all of its misrepresentations, mistakes, and omissions, brazenly demonstrates the willingness of the Ashcroft Justice Department to undermine the Department's standards and enforcement priorities to further the political agenda of the gun lobby. The revelation that Attorney General Ashcroft has asked the Department's Office of Legal Counsel to validate his conclusions with a formal opinion underscores the lengths to which the Attorney General is willing to go to weave the conclusions of his letter into the fabric of the Department's policy. Shot Full of Holes sends a strong warning that the Ashcroft Justice Department believes that it can give credence to a discredited and distorted view of the Second Amendment. Most importantly, if brought to their natural conclusion, Attorney General Ashcroft's efforts to change the Department's position on the Second Amendment will have dangerous real-world implications that will be measured in increased death and injury from firearms.
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.