In a brief filed in connection with an appeal to the Supreme Court in a gun possession case, the Bush Justice Department, breaking with sixty years of jurisprudence, asserts that individuals have a constitutionally protected right to own firearms. Seeking to quiet ghosts of gun debates past as the November elections approach, the Administration tries to reassure us that this proposed sea change in American law would, if realized, leave law enforcement and gun laws unaffected. But in doing so, it elevates sophistry and doublespeak to a new art form.
In the case in question, a lower court held that a provision of the 1994 amendment to the gun control act prohibited one Timothy Emerson from possessing a Beretta pistol, since he was under a domestic-violence restraining order obtained by his wife. Even after a court issued the restraining order, Emerson used the pistol to threaten his wife and daughter as they entered his office to retrieve the daughter’s shoes. In his appeal, Emerson claimed that the restriction abridged his Second Amendment rights. The Justice Department, in its brief to the High Court, departed from its historical position and agreed that Emerson did possess an individualized Second Amendment right. But in a legal high-wire act, it argued that this right was nonetheless trumped by his misconduct and that, therefore, the indictment should stand.
Gun control advocates criticized the inclusion of the constitutional assertion in the department’s brief as gratuitous. But on this they miss the point. The real goal of Justice’s new strategy is not to throw a bone to the gun lobby but to mount a backdoor attack on the very legitimacy of gun laws it doesn’t like but doesn’t have the guts, in the current political climate, to try to repeal legislatively. For as the Administration knows, elevating gun rights into the rarefied sphere of constitutional rights would create new, perhaps insurmountable, legal hurdles for existing gun violence statutes.
Individual rights, such as freedom of speech and religion, to which the Attorney General claims gun rights are analogous, occupy a unique area of American law. The Court has repeatedly held that legislative encroachments in these areas are presumptively invalid unless narrowly tailored to meet compelling government interests. On this basis, the Court has invalidated laws in the areas of affirmative action, free exercise of religion and freedom of speech. Recently, in Ashcroft v. Free Speech Coalition, it held that a law prohibiting virtual child pornography was too broadly drafted, and the putative harm it sought to prevent too speculative to pass constitutional muster. Were the Court to embrace the Bush view on the Second Amendment, the likely result would be to invalidate many federal and state gun laws, like the popular Brady law and the ban on assault weapons.
In passing the 1993 Brady Act, which is applied to the general population to screen out felons and other miscreants from buying firearms, the House and Senate judiciary committees did not consciously undertake the exactingly narrow drafting requirements necessary to overcome the constitutional hurdles placed on such rights as speech or religion. Rather, they acted under the authority of the Constitution’s commerce clause, which gives Congress broad legislative discretion. And while Justice’s brief, arguing that the prohibition on gun possession by those with domestic-violence restraining orders could pass the “narrow tailoring” constitutional test it seeks generally for gun laws, may be correct, it is unclear, even improbable, that the broader purpose of laws like the Brady Act (background checks for everyone) could survive the test.
Similarly, because the ban on military-style assault weapons, intended to remove the tools of many gang-type street massacres, was broadly drafted to apply to everyone, that law could be invalidated on the grounds that it is not sufficiently tailored to prohibit access by those with criminal records. So, too, could scores of state and local laws, such as the ban on handgun possession in the District of Columbia. The new proposal by Senators John McCain and Joseph Lieberman to apply background checks at gun shows could also be constitutionally dead on arrival should the Administration view of gun rights become law.
Indeed, this is not the first time since September 11 that the Attorney General has catered to gun owners. In October, responding to gun lobby paranoia about gun registries, he refused to give the FBI access to records that could help it determine if post-September 11 detainees had attempted to purchase weapons.
Each year we lose roughly 28,000 people at the wrong end of a gun barrel, nearly ten times the number of people who perished on September 11. As the Violence Policy Center has documented, Al Qaeda terrorist training manuals note the ease with which one can obtain firearms in the United States–like the .50-caliber rifles that can with precision blow a nine-inch hole in a concrete wall from 100 yards. At a minimum, criminals and terrorists will benefit from new defenses that gun prosecutions violate constitutional rights as envisioned by the Bush Justice Department. Prior to his plea agreement, attorneys for the so-called American Taliban, John Walker Lindh, had already indicated his intention to invoke such a defense on his behalf.
If, when the Attorney General is proclaiming about the need to restrict Americans’ civil liberties, he seeks to expand constitutional liberties for gun owners, he should at least be straight with the American people about the likely legal consequences and what it could mean for safety on our streets.