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Last year, John Ashcroft proposed a new policy of destroying Brady Act gun purchase records after 24 hours, even though a federal appeals court had ruled that it is perfectly legal for the department to maintain those records for six months to audit the background check system. The attorney general cited the “privacy interests” of gun buyers as paramount. He ignored the Federal Bureau of Investigation’s recommendation that the record retention period be increased to one year. And he ignored warnings, confirmed by a General Accounting Office report last week, that a 24-hour policy would prevent authorities from retrieving guns from hundred of felons and other prohibited gun buyers who managed to slip through the Brady background checks. Ashcroft has also stopped the FBI from continuing to review Brady records to determine if persons detained as suspected terrorists had recently purchased a gun. The FBI’s review had already established that several detainees had done precisely that. Nonetheless, the attorney general said that the FBI did not have the authority to review the Brady records for this purpose. He relied upon a Justice Department regulation — which, of course, the department could change. Instead, while asking Congress for broad new authority to fight terrorism, the attorney general has requested no additional authority to check gun sale records. Ashcroft appears to support the broadest possible exercise of federal power to fight crime and terror, except when it comes to guns. Perhaps nothing, however, is more revealing of the attorney general’s special relationship with guns than the department’s policy shift on the meaning of the Second Amendment. Earlier this year, in footnotes in Supreme Court briefs urging denial of certiorari in two separate cases involving gun crimes — Haney v. United States and Emerson v. United States — the solicitor general departed from the Justice Department’s long-standing reading of the amendment. For decades, the department had argued that the Second Amendment protects only gun possession reasonably related to the preservation of a well-regulated militia. It did so again in the lower courts in Haney and Emerson. The argument has proven persuasive for more than six decades. Until the 5th U.S. Circuit Court of Appeals’ opinion last October in Emerson, every federal circuit court had agreed that the right is confined to participation in an organized state militia, finding that the Supreme Court had settled the issue in United States v. Miller (1939). But in his Supreme Court briefs, the solicitor general took a different view, writing that “the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms.” The footnotes did find this broader right “subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse,” and both briefs urged the Supreme Court not to hear the appeals from lower court rulings that upheld gun laws. (The Court did, in fact, deny certiorari in both cases last month.) Nevertheless, the department’s position amounts to an invitation to federal judges to decide for themselves whether a gun law under attack is sufficiently “reasonable” or what firearms are “particularly suited to criminal misuse,” instead of deferring to the judgment of Congress or state legislatures. As the Cato Institute’s Robert Levy, a strong opponent of gun control laws, cheerfully observed [see related item], the individual rights view “establish[es] a presumption against gun control.” SEIZING THEIR CHANCE What will be the impact of this policy shift on actual gun prosecutions? There is no doubt that Second Amendment challenges to gun laws will now become a standard part of the criminal defense attorney’s tool kit. Sure enough, a week after the Haney and Emerson briefs were filed at the Supreme Court, the defense team for American Taliban fighter John Walker Lindh sought dismissal of the firearms charges against him, citing in support the Justice Department’s newly discovered individual right to be armed. Although, not surprisingly, the gun charges against Lindh survived — and his plea bargain did ultimately include one count of carrying an explosive device while committing a felony — there is no question that the department’s revised reading of the Second Amendment gives new credibility to defense arguments that previously would not have been taken seriously. The Washington Post recently reported that the Haney- Emerson footnotes have already been invoked to support some 30 defense motions to dismiss firearms charges in the District of Columbia alone. According to The New York Times, the defense bar’s enthusiastic embrace of Ashcroft’s Second Amendment shift is repeating itself in scores of cases across the country. CONFLICTED AND CONFUSED When defense attorneys make this argument, how will federal prosecutors respond? Less than a month after the Emerson ruling adopting the individual rights view, the attorney general issued an extraordinary memorandum to all U.S. Attorneys explaining that the 5th Circuit’s opinion reflects “the correct understanding of the Second Amendment” and directing that briefing in all gun cases be coordinated with the Criminal Division of the Justice Department (presumably to ensure adherence to the new interpretation). Does this mean that federal prosecutors will now disavow what is the controlling legal authority on the Second Amendment everywhere but the 5th Circuit? Will they refuse to make the strongest possible argument for the constitutionality of gun laws (i.e., that they are clearly constitutional unless they adversely affect a “well regulated Militia”) simply because two judges on the 5th Circuit have rejected that view? Briefs filed by the government in D.C. gun cases demonstrate the quandary Ashcroft has created for federal prosecutors. For example, in proceedings in United States v. Freeman, involving an indictment for possession of an unregistered firearm, the government did cite the controlling legal authority in the District — a 1987 D.C. Court of Appeals decision establishing that the Second Amendment guarantees no individual right to be armed. In doing so, however, prosecutors explained that this authority “contains reasoning that is inconsistent with the position of the United States as to the scope of the Second Amendment,” noting that they were, nevertheless, ethically obligated “to point the Court to controlling legal authority known ‘to be dispositive of a question at issue.’” In other words, as a result of the Ashcroft policy shift, federal prosecutors are citing controlling legal authority clearly establishing the constitutionality of gun laws only to fulfill their ethical obligations. At the same time, they are forced to agree with defendants that this authority is wrong. The newly conflicted and confused position of prosecutors will be even more apparent in future cases. The defendant in Freeman was a convicted felon, making it easy for the government to argue that his gun possession would not be protected even under the broad individual rights view. But for illegal possession cases not involving convicted felons, the government’s concession of a broad individual right may have a materially adverse impact. Moreover, Freeman was before a trial judge, who is bound by the decisions of the appeals courts, regardless of the prosecutor’s view of those decisions. What happens when such cases reach the appellate courts? Presumably, the Ashcroft Justice Department will require prosecutors to argue for a reversal of prior case law, even though such case law would firmly establish the constitutionality of the statutes that government lawyers are supposed to defend. A PUBLIC MESSAGE Ashcroft’s supporters may argue that he simply found the 5th Circuit’s reasoning in Emerson so compelling that he was forced to recognize it as “the correct view of the Second Amendment” despite the opposite conclusions of every other federal circuit court. The attorney general, however, tipped his hand on the Second Amendment well before the 5th Circuit ruling, and he did so in a most troubling way. On May 17, 2001, on the eve of a National Rifle Association convention, he wrote a letter to the NRA, on Justice Department letterhead, explaining that it was “unequivocally” his view “that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms,” and rejecting the argument of “some” that the amendment “guarantees only a ‘collective’ right of the States to maintain militias.” At the time, those arguing for the militia view of the Second Amendment included Justice Department attorneys in Emerson, then pending in the 5th Circuit. Thus, the Ashcroft letter directly undercut the legal position of his own department — and his client, the United States of America — in a pending case. To make matters worse, the NRA had filed an amicus brief in Emerson, arguing against the Justice Department’s position. Overjoyed by Ashcroft’s statement, the NRA ensured that his letter was read aloud to its conventioneers. The letter thus amounted to an extrajudicial statement, which the attorney general had reason to believe would be made public, to an opposing amicus party in a pending case, stating that he agreed with that party’s interpretation of the Constitution and disagreed with that being advanced by the United States. The attorney general’s conflicted position prompted the filing of an ethics complaint by Common Cause and the Brady Center to Prevent Gun Violence. We supported our complaint with an opinion letter from Professor Samuel Dash of Georgetown University Law Center (who had been chosen by Independent Counsel Kenneth Starr to provide ethics advice during the Monica Lewinsky investigation). Dash found the attorney general’s conduct to be “an impermissible conflict of interest” amounting to an “act of disloyalty to his client.” The ethics complaint remains pending in the Justice Department’s Office of Professional Responsibility. During Ashcroft’s confirmation hearings, several senators raised concerns about whether his personal and political views would conflict with his duty to defend federal laws with which he disagreed, particularly gun laws. In response, Ashcroft reassured the senators that “being attorney general means advancing the national interest, not advocating my personal interest,” and vowed that he would “defend vigorously” federal firearms laws, regardless of his personal views. Those statements, on which the Senate relied in confirming Ashcroft, now ring hollow. The attorney general has a strongly held personal ideology about the role of guns in society and their constitutional status, which he has now enshrined as official government policy. He proposes to destroy Brady background check records after 24 hours, though the courts have ruled he could keep them for at least six months. He requires federal prosecutors to argue a view of the Second Amendment that weakens their defense of federal gun laws, although it has been endorsed by only two federal appellate judges and repeatedly rejected by all but one circuit court. This is hardly the vigorous defense and enforcement of gun laws that our nation deserves. Dennis A. Henigan is director of the Legal Action Project at the Brady Center to Prevent Gun Violence in Washington, D.C.

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