Quantcast

Julian Epstein | The Nation

Julian Epstein

Author Bios

Julian Epstein

Julian Epstein was the chief minority counsel to the House Judiciary
Committee and, before that, the majority staff director of the House
Government Operations Committee.

Articles

News and Features

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.