VPC

Shot Full of Holes

Deconstructing John Ashcroft's Second Amendment

Summary

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:

Omitting mention of the Supreme Court's decision in United States v. Miller, which is the most recent case in which the Supreme Court interpreted the Second Amendment at any length. This oversight is analogous to writing a letter about the legal status of racial segregation and ignoring Brown v. Board of Education. (Please see Shot Full of Holes, pages 7-9.)
Misrepresenting the Founding Fathers as supporting an individual right to acquire and possess firearms, as each of Attorney General Ashcroft's citations actually preceded the ratification of the Bill of Rights by at least two years and were not made in connection with the debate on the ratification of the Second Amendment. Moreover, his quotations are highly inaccurate. For example, Ashcroft quotes George Mason at the Virginia constitutional ratification convention as saying, "I ask, sir, what is the militia? It is the whole people... To disarm the people is the best and most effectual way to enslave them." In the transcript of the convention debates, though, Mason is recorded as having said the part of the quote after the ellipses two days before the part of the quote preceding the ellipses. Ashcroft's presentation of these two distinct statements, which are reversed in order and separated by more than 40 pages of debates, is highly misleading. (Please see Shot Full of Holes, pages 14-16.)
Falsely claiming that the Justice Department previously supported an individual right to possess firearms based on congressional testimony given by former Attorney General Homer Cummings. In fact, during the hearing in question, Cummings testified in support of a version of the National Firearms Act of 1934, the most restrictive federal gun control statute in history, the early versions of which would have included strict regulation of handguns. Nowhere in Cummings' testimony did he describe his or the Department's view of the Second Amendment. The constitutional concerns that Ashcroft attributes to Cummings went to the constitutionality under the Commerce Clause of a bill that would regulate the intrastate possession of firearms. The Second Amendment scarcely figured into the discussion. (Please see Shot Full of Holes, pages 22-26.)
Quoting Samuel Adams at the Massachusetts constitutional ratification convention as saying that the Constitution should "never [be] construed...to prevent the people of the United States who are peaceable citizens, from keeping their own arms." In the official journal for the debates, this language is not attributed to Samuel Adams, but is instead presented in the passive voice. Ashcroft does not cite any hard historical evidence confirming that Samuel Adams is responsible for this comment. In addition, Ashcroft quotes this language to support what is arguably the most radical statement in his letter�namely, that the Second Amendment can only be infringed where the government can demonstrate a compelling state interest. Applying this test�the strictest in Constitutional law�to Second Amendment cases would put the Second Amendment on the same footing as free speech and give it greater constitutional protection than a woman's reproductive rights. (Please see Shot Full of Holes, pages 31-32.)
Citing as authoritative Supreme Court cases that are not decisions on the meaning or scope of the Second Amendment. All of the cases concern other constitutional provisions and mention the Second Amendment in passing. Not one of the cases constitutes governing precedent on the Second Amendment. The one case with precedential value, United States v. Miller, is not mentioned at all. (Please see Shot Full of Holes, pages 10-11, 17-21.)

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.