VPC and Washington Post Expose How DC Gun Crime Defendants Use Ashcroft Justice Department’s Second Amendment Policy Shift in Attempt to Strike Down Gun Laws
The Washington Post reported May 30, 2002, that criminal defendants in Washington, D.C. are seeking to have the District’s gun laws declared unconstitutional on Second Amendment grounds. The defendants are relying on the 180-degree shift in the Department of Justice’s interpretation of the Second Amendment that was announced May 6, 2002 in briefs filed in the U.S. Supreme Court. Mathew Nosanchuk, the Violence Policy Center’s litigation director and legislative counsel, issued the following statement:
“When Solicitor General Theodore Olson filed briefs in the Supreme Court embracing the expansive individual rights interpretation of the Second Amendment, we warned that the primary beneficiaries of the Ashcroft Justice Department’s novel interpretation would be criminal defendants. An expansive individual right under the Second Amendment simply is not supported by history of the Constitution or binding Supreme Court precedent and threatens to undermine the Justice Department’s enforcement of existing gun laws.
“Now, the chickens have come home to roost. As the Washington Post today reported, the defendants are charged in separate cases with unlawful possession of a handgun and ammunition respectively. They both rely explicitly on the Justice Department’s briefs—and a memorandum from Attorney General Ashcroft to all 93 U.S. Attorneys in which he directs them to follow his interpretation of the Second Amendment—to support their Second Amendment challenges to the District’s gun laws. According to the brief in one of the cases: ‘As made clear by the various government representations, the United States now understands and represents before tribunals that the Second Amendment right to bear arms is an individual and personal right, not a collective right of the state to form a militia.’ On this basis, the defendants seek to have the District’s laws, which impose a virtual ban on the private possession of handguns and ammunition, struck down.
“The reliance by criminal defendants on the Justice Department’s new position puts the lie to the Justice Department’s claim that it can be tough on gun crime and soft on the Second Amendment. Instead of promoting some abstract concept of constitutional law to score political points with the gun lobby, the Ashcroft Justice Department is handing criminal defendants arguments that will used to invalidate gun laws. The real-world implications of the Department’s position make it clear that the Department will have to choose: protect public safety and security or implement an expansive individual rights interpretation of the Second Amendment that gun criminals will use to their advantage.”
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D.C. Handgun Ban Challenged in Court – Washington Post
Ashcroft and NRA Provide Second Amendment Gun Defense for Accused American Taliban Terrorist John Walker Lindh
One week after the Ashcroft Justice Department formally adopted the National Rifle Association (NRA) view that the Second Amendment guarantees a broad individual right to keep and bear arms, the defense team for accused American Taliban terrorist John Walker Lindh has used the government’s arguments made to the U.S. Supreme Court to urge dismissal of the gun charge filed against him.
The Justice Department position, announced last week in briefs filed with the U.S. Supreme Court, is contrary to both Supreme Court precedent and long-standing and consistent bipartisan Justice Department policy that the Second Amendment protects a militia-based—not an expansive individual—right to bear arms.
VPC Litigation Director and Legislative Counsel Mathew Nosanchuk states, “We warned of this inevitable result and it has not taken long for our fears to come true. The Ashcroft Justice Department has betrayed its law enforcement responsibilities by strengthening the legal position of those charged with committing serious crimes. These are the real-life consequences of a cynical, politically motivated action. Now defendants charged with a gun crime will argue the NRA-endorsed, Ashcroft- implemented, American Taliban defense. The tough-on-crime rhetoric of President Bush, Attorney General Ashcroft, and the NRA means little now that they have given accused gun criminals a new Justice Department-endorsed defense.”
The Violence Policy Center warned of the clear threat to public health and safety posed by the Justice Department shift in a May 2 letter sent to Solicitor General Ted Olson by former Deputy Solicitor General Andrew Frey on behalf of the VPC before the briefs were filed. The letter stated: “Prosecuting gun crimes would also be made more difficult in the wake of a policy change by the government….A person accused of violating one or more of these statutes will have the opportunity to make the argument that he was merely exercising his Second Amendment right at the time of his arrest, and that any statute purporting to impose criminal penalties for that conduct is unconstitutional….The ability of the United States to perform its task of defending the laws enacted by the Congress will be needlessly, and perhaps seriously, compromised by a filing of the sort we here urge you to avoid.”
VPC Exposes Ashcroft Second Amendment Shift
May 2nd VPC Letter to Solicitor General Ted Olson Regarding Interpretation of the Second Amendment (pdf format)
Summary of Violence Policy Center Letter To Solicitor General Ted Olson (html format)
U.S., in a Shift, Tells Justices Citizens Have a Right to Guns – New York Times
U.S. Backs a Right to Bear Arms – Los Angeles Times
U.S. Argues For Wider Gun Rights – Washington Post
Individual Gun Rights Get Administration’s Support – USA Today
VPC Response to General Accounting Office (GAO) Letter on Ashcroft Proposal to Destroy NICS Gun Records Immediately
GAO concludes: “[N]ext-day destruction of NICS records could inhibit the ability of law enforcement to retrieve firearms from persons who were approved to purchase firearms but should not have been.”
In response to the release of GAO’s letter to Senator Richard Durbin (D-IL), the Violence Policy Center released the following statement by VPC Litigation Director and Legislative Counsel Mathew Nosanchuk.
The preliminary results of an investigation conducted by the General Accounting Office (GAO) into the effects of Attorney General John Ashcroft’s proposal to destroy records of approved gun sales within 24 hours confirm what the Violence Policy Center (VPC) has been saying all along. The VPC warned that immediate destruction of records of approved gun sales immediately will put guns into the hands of felons, fugitives, domestic abusers, and other persons prohibited by law from getting them. GAO compared the effectiveness of the Clinton Administration rule that allows records generated by the Brady Law’s National Instant Criminal Background Check System (NICS) to be kept for 90 days to an Ashcroft proposal that would mandate destruction of the records within 24 hours.
In a letter reporting on an investigation requested by Senator Durbin, GAO stated: “[N]ext-day destruction of NICS records could inhibit the ability of law enforcement to retrieve firearms from persons who were approved to purchase firearms but should not have been.” Under current law, the gun-purchase records are kept for 90 days. This enables law enforcement to take action if a prohibited person is approved in error. According to GAO, in a four-month period, the FBI used records more than one day old but less than 90 days old “to initiate over 100 firearm-retrieval actions.” Under the Ashcroft proposal, the records allowing the retrievals would have been destroyed.
The Violence Policy Center recognized this fact last year when it sued Attorney General Ashcroft for unlawfully suspending the final regulation that would have authorized the records to be kept for 90 days. It is one reason why the VPC strongly criticized the Attorney General for proposing that records should be destroyed within 24 hours. The VPC also condemned Ashcroft’s refusal to abandon his proposal for immediate destruction after it was revealed in December 2001 that he was not allowing these records to be used to identify whether potential terrorists had purchased guns from federally licensed dealers.
Follow this link to view the letter from the GAO to Senator Richard Durbin (D-IL)
Follow this link to view the letter from Senator Durbin to Attorney General Ashcroft