Second-Amendment Setup: What They Say Isn't What You Get

© By Aaron Zelman and Claire Wolfe
© JPFO Inc, updated December 2008, from 2002 original.

(NOTE - some external links may be time-expired.)

Who made the following statements?
1."The broad principle that there is an individual right to bear arms is shared by many Americans, including myself. I’m of the view that you can’t take a broad approach to other rights, such as First Amendment rights, and then interpret the Second Amendment so narrowly that it could fit in a thimble. But I’m also of the view that there are limits on those rights. Just as you can’t falsely shout fire in a crowded movie theater, you can put restrictions on who can own guns and how, when, and where they may be possessed."

♦ Attorney General John Ashcroft
♦ Solicitor General Theodore Olson
♦ President George W. Bush
♦ Sen. Charles Schumer

2. "While some have argued that the Second Amendment guarantees only a ’collective’ right of the States to maintain militias, I believe the Amendment’s plain meaning and original intent prove otherwise. Like the First and Fourth Amendments, the Second Amendment protects the rights of ’the people,’ which the Supreme Court has noted is a term of art that should be interpreted consistently throughout the Bill of Rights. … Of course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests … just as the First Amendment does not prohibit [government from legislating against] shouting ’fire’ in a crowded movie theater. "

♦ Sen. Dianne Feinstein
♦ NRA President Charlton Heston
♦ Attorney General John Ashcroft
♦ President George W. Bush

Hard to tell, isn’t it?
Dedicated Second-Amendment activists may recognize that the second statement was made by Attorney General John Ashcroft in his famous May 2001 letterto the National Rifle Association. For this and other support of the pro-individual rights position, gun owners nationwide cheered Mr. Ashcroft.
But who made the first statement? It exactly reflects Ashcroft’s point of view, but it wasn’t Ashcroft who said it. Here’s a hint: No pro-gunner ever cheered this speaker. The statement was made by Sen. Charles Schumer, one of the nation’s most vehement and persistent opponents of firearms ownership, at a May 2002 press conference in which he criticized Attorney General Ashcroft, not for his views, but merely for his means of expressing them.
Similarly, at his confirmation hearings, Ashcroft admitted he agreed with and would enforce all the restrictions on firearms ownership Sen. Schumer has worked so hard to impose over the years. And in May 2002, immediately after the Justice Department filed a Supreme Court brief claiming the individual rights position as its official policy, Ashcroft said on "Larry King Live" that he fully supported the Brady Law, calling it a "reasonable regulation".
In their verbal sparring, Ashcroft and Schumer look like fierce opponents. Yet they express precisely the same viewpoints. They advocate stringent enforcement of precisely the same laws.
So where is the difference between the two?
And if Second-Amendment supporters have achieved such a victory with the individual-rights position (rather than the "militia rights" or "states’ rights" position) being voiced in high places, why are our opponents suddenly proclaiming individual rights while still working to destroy gun ownership? And why are our "friends" doing exactly the same thing?
As the following examples show, what these politicians and lobbyists proclaim and what they do are universes apart.

Case in point: Project Safe Neighborhoods
Which presidential administration called for appointment of 700 state and federal prosecutors whose sole responsibility is to prosecute "gun crimes"? We’re not talking about crimes of violence, but about miscarriages of justice like these¹:

• Dane Yirkovsky came across a single .22 cartridge while laying carpet, pocketed it, and apparently forgot it. Because he had previous burglary convictions, he was a "felon in possession of ammunition." Fifteen years of his life are being wiped away by a mandatory minimum federal sentence.
• Katica Crippen went to federal prison for posing for photos holding her boyfriend’s firearm. Crippen, with a previous drug conviction, was another "felon in possession."
• Michael Maloney had a youthful drug conviction, but had cleaned up his act, undergone extensive background checks to get a liquor license, and believed his felony record was expunged. So when he bought a .22 to protect himself when making late-night cash deposits at the bank, he checked No when asked if he was a felon. The BATF disagreed -- and Maloney got a 15-year mandatory-minimum sentence over the protest of the judge who sentenced him.
• Candisha Robinson sold illegal drugs to undercover officers. Because the officers later found an unloaded gun locked in a trunk in her closet, federal prosecutors charged Robinson with "using" a gun while committing a drug crime.

Prosecutions such as these are not only a grave injustice to the victims. They are not only destroying trust in the entire justice system. They are not only costing taxpayers a fortune. They divert otherwise ordinary criminal prosecutions from state courts to federal courts. Federalizing of criminal prosecutions is a dangerous process that further undermines the Constitution by expanding federal government authority far beyond the tiny handful of constitutionally-defined federal crimes such as treason.
It wasn’t the Clinton administration that called for more prosecutions like these. It wasn’t the Clinton administration that created hundreds more prosecutors for the sole purpose of imprisoning thousands more non-violent gun owners. It’s the allegedly pro-gun George W. Bush administration, in its Project Safe Neighborhoods.
The Bush administration’s fact sheet for Project Safe Neighborhoods also says, "In addition to strict enforcement of existing gun laws, the President supports expanding instant background checks to close the gun show loophole and banning the importation of high-capacity ammunition clips."
In other words, we ain’t seen nothin’ yet. President Bush wants even more laws that violate the Second Amendment. (For more, see our sidebar article "What’s a Compelling State Interest? What’s a Felon?" (In the grey box to the right)

The Clinton administration was ruthless about passing laws, but lax about enforcing them. It takes a law-and-order Republican administration -- enthusiastically backed by organizations like the National Rifle Association -- to carry out the Democrats’ dirty work. This is what Margaret Thatcher described at the "ratcheting process," in which a "left-wing" government pushes through policies that were previously intolerable to the people, and a "right-wing" government then enforces policies it once ardently opposed after those policies have become business-as-usual. It hardly matters whether the ratcheting loss of Second-Amendment rights is a deliberate plot or merely the product of the prevailing political mindset that "government should do whatever it thinks necessary, regardless of the Constitution." The result is the continuing loss of liberty --and in the case of Project Safe Neighborhoods, vastly increased danger of punishment for gun owners. Case in point: Americans for Gun Safety Americans for Gun Safety also says it supports the individual-rights position on the Second Amendment. This group, which appeared suddenly on the scene about two years ago, initially positioned itself as an "educational group." It said it had no political agenda. It said (we paraphrase): "Let’s face the fact that Americans have an absolute right to keep and bear arms; let’s simply make gun ownership safer." But from its beginnings, AGS (founded by Andrew McKelvey, multimillionaire founder of Monster.com) threw millions into political campaigns to "end the gun-show loophole" -- politician-speak for having the federal government regulate and track all private sales of firearms. AGS helped pass state laws in Oregon and Colorado to achieve that goal. And AGS and Sen. John McCain, another ardent gun prohibitionist, have been as thick as thieves in a so-far unsuccessful attempt to impose Brady tracking, government databases, and waiting periods (which still exist despite the alleged "instant-check system") on private firearms sales nationwide. AGS no longer pretends to be merely an "educational" group. While showing happy gun hobbyists as a background image on its Web site, its entire aim is to discourage gun ownership by making it more difficult to purchase firearms, and to hand the government the name of every person in the nation who ever legally purchases a gun. (Criminals will still buy untraced firearms while their law-abiding brethren submit to government scrutiny.) Individual-rights hypocrisy All the while, the proponents of waiting periods, citizen-tracking, unsafe "safety" measures, and arbitrary restrictions on the manufacture and ownership of firearms sanctimoniously claim they believe wholeheartedly in the individual right to keep and bear arms. Just like John Ashcroft. Just like Bush administration Solicitor General Theodore Olson. Just like Charles Schumer. As Sarah Brady always claimed, all they want is "a few reasonable restrictions." From Ashcroft to Schumer, they devoutly respect our individual right to keep and bear arms, except for a few harmless little limitations like: Not allowing us to buy inexpensive handguns ("Saturday-night specials") Not allowing us to buy handguns with high-capacity magazines Not allowing us to buy short-barreled shotguns Not allowing us to buy semi-automatic rifles with a military appearance Not allowing us to buy fully automatic firearms -- or being able to buy them only at exorbitant prices and after paying exorbitant taxes to the government Forbidding us to own guns if we’re one of the millions of non-violent felons Forbidding us to own guns if we’ve ever (even decades ago) been convicted of a large group of misdemeanors Forbidding us to buy guns if the FBI’s "instant-check" system is down Forbidding us to buy guns if we won’t give a social security number Forbidding us to defend ourselves with firearms on airplanes, in courthouses, and hundreds of other public places Forbidding trained schoolteachers, principals, or parents from defending school children against Columbine-style rampages Forcing us to keep our guns locked away or disabled in our homes so we can’t use them against a violent attacker Forcing us to beg government permission and submit to fingerprinting and criminal background checks to carry a handgun (IF they allow us to carry one at all) Wanting us to tremble before 700 special prosecutors whose sole mission is to arrest and jail people like us It doesn’t matter what they say The individual rights position is now referred to by legal scholars as "the standard model." Virtually no serious scholar now gives credence to the "state’s rights" or "militia rights" position from which opponents of gun ownership claimed their authority for so many years. Are we better off because the individual-rights interpretation now prevails? We should be, because the change represents a tremendous philosophical shift in the direction of honesty and liberty. To whatever extent courts in the future may use that interpretation to throw out outrageous anti-gun laws and the convictions based on them, we will be better off. But we are not better off as long as politicians and lobbyists succeed in cynically using the individual-rights position to pursue their old, familiar goals of limiting firearms ownership and punishing firearms owners for harmless, technical violations of obscure laws. And those are the straits we’re in now. If we are foolish enough to keep paying attention to what they say, rather than what they do, their cynical misuse of our trust and the English language will have no limit. And neither will the injustice they can impose.

What’s a Compelling State Interest? What’s a Felon? In his famous, and widely cheered, letter to the National Rifle Association, Attorney General John Ashcroft made the caveat that gun ownership can be restricted for "compelling state interests." But what, in this day of omnipresent government, does that mean? Note that Ashcroft did not say "protection of innocent people against violent criminals." In theory, when evaluating a law that seems to infringe on a fundamental right, judges are supposed to examine whether the law in question is narrowly tailored to advance a truly "compelling state interest." Great injustice may be permitted, but only in a great cause. For example, during World War II, the Supreme Court ruled that internment of Japanese-Americans was allowable because of a "compelling state interest" -- the preservation of the nation in wartime. It was a decision that seems outrageous to most of us now, but was widely supported amid the tension of the war. Other laws, that don’t affect fundamental rights, are tested for whether they "reasonably" advance a "legitimate" state objective. As we see every day, there’s virtually nothing the government doesn’t consider its own "legitimate" objective -- such things as: Forcing us to wear seatbelts Regulating how we can landscape our own properties Deciding whom we can hire to fix our roof Determining what substances we can put into our own bodies and Determining exactly what our children must be taught. Where the courts will draw the line on the Second Amendment remains to be seen; for most of the last century, judges have treated the individual right to own firearms as if it simply didn’t exist. Only in the last few years have we seen even minimally favorable decisions (in the Emerson case). Given today’s climate of government supremacy, there is still no adamant principle to prevent courts from deciding that the state has a "compelling interest" in "preventing an epidemic of gun violence," "protecting children" against firearms, tracking all citizens who own firearms (for "public safety"), requiring firearms to be locked up in a secure storage facility, etc., etc., etc. One thing we know for certain: It’s clear (as the accompanying article shows), that both "right-" and "left-wing" politicians consider any restriction on firearms ownership to be compelling and in their interest. In another portion of his statement to the NRA, Ashcroft gave, as an example of "compelling state interests," the authority to forbid convicted felons from owning firearms. But again, government mission creep makes even this reasonable-sounding authority far more dangerous than it appears. When felons were first forbidden to own firearms, a person usually had to commit terrible, violent criminal deeds to become a felon. Now you can make an error on EPA or IRS paperwork and be forbidden forever to own firearms -- without the slightest suspicion that you are a threat to anyone. Indeed, when reporter David Holthouse examined every prosecution made under Colorado’s Project Exile (a forerunner to the Bush administration’s Project Safe Neighborhoods), he discovered that 154 of the 191 "gun criminals" targeted had no violent criminal records at all and two were merely illegal aliens (a civil offense) with no criminal record of any sort.2 Newsflash, April 12, 2003: Bush Betrays the Second Amendment and Backs Renewal of Assault Weapons Ban:

Footnotes

1. Examples are from a Cato Institute study, "There Goes the Neighborhood: The Bush-Ashcroft Plan to ’Help’ Localities Fight Gun Crime," by Gene Healy, issued May 28, 2002 (http://www.cato.org/pubs/pas/pa-440es.html), and from "More Injustice on the Way" a June 12, 2002 column by Paul Craig Roberts (http://www.newsmax.com/commentarchive.shtml?a=2002/6/11/203057)
2. Cato, pg. 10.
© 2002 Aaron Zelman. Permission is granted to distribute this article in its entirety, so long as full copyright information and full contact information is given for JPFO.
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Jews For The Preservation of Firearms Ownership, Inc. P.O. Box 270143 Hartford, WI 53027

Phone (262) 673-9745 Fax: (262) 673-9746 http://www.jpfo.org