By Dave Kopel , of the Independence Institute, and Glenn Reynolds, of InstaPundit.
National Review Online. December 17, 2001 9:20 a.m. More by Kopel on terrorism and civil liberties.
Attorney General John Ashcroft has come under fire for what Boston Globe columnist Tom Oliphant calls "coddling" gun owners. Oliphant's attack was the latest round in the concerted assault on Ashcroft's Second Amendment positions, which started this spring when Ashcroft announced his view (since supported by the recent U.S. Court of Appeals decision in United States v. Emerson) that the Second Amendment protects an individual right to arms.
Ashcroft's stance was consistent with that of the attorneys general for Ronald Reagan, Franklin Roosevelt, Abraham Lincoln, and Andrew Jackson, among others. It was also consistent with most Supreme Court statements citing the Second Amendment, including everything the Rehnquist Court has ever said. Ashcroft's view mirrored repeated congressional declarations of the individual right to arms — including in the Freedmen's Bureau Act of 1866, the Property Requisition Act of 1941, and the Firearms Owners' Protection Act of 1986. It's also compatible with a wide variety of gun controls, as demonstrated by the Court of Appeals decision in Emerson, which ruled that the particular federal gun law at issue did not violate the Second Amendment.
Ashcroft was, however, out of step with the antigun groups, who recognize that a meaningful Second Amendment makes it impossible to ban guns across the board. For the same reason, the attorney general was out of step with the position of the Clinton/Gore/Reno administration. Indeed, the difference between the Bush/Ashcroft view of the Second Amendment and the Clinton/Gore/Reno view was — as President Clinton admitted — the reason Gore lost five close states, and thus the election.
Still smarting from that humiliation, gun prohibition groups have decided to attack Ashcroft for obeying federal gun statutes and for complying with a regulation created by Attorney General Janet Reno. Last week, on the morning Ashcroft was scheduled to testify before the Senate Judiciary Committee, New York Times reporter Fox Butterfield turned a press release from a gun-prohibition group, the Violence Policy Center, into a Times article. Ashcroft's opponents on the Senate Judiciary then used the article to excoriate Ashcroft for obeying the law. Predictably, gun-prohibition sympathizers like Oliphant and the Atlanta Journal-Constitution's Cynthia Tucker have begun piling on.
At issue was Ashcroft's decision to tell the FBI that it couldn't start rummaging though the federal records of legal gun buyers as part of its terrorism investigation. Indeed, the law forbids the keeping of such records in the first place. It does, however, authorize the federal government to retain records of people — such as illegal aliens, or people with temporary visas — who illegally attempt to buy guns. Those records are available to the FBI for any and every law enforcement purpose.
Mr. Butterfield didn't bother to inform his Times readers about what federal law actually says. So let's examine the laws directly.
Since 1998, all federally regulated gun purchases require that the buyer obtain approval from the FBI's "National Instant-Check System," which ensures that the buyer is not a "prohibited person." NICS checks the buyer's name against a database of felons and other prohibited people.
The NRA had pushed the instant check as an alternative to the Brady Bill's waiting period. As a compromise, Congress made the waiting period effective for five years (1994-98) for handguns only, to be replaced in 1998 by the instant check on all guns. Determined to prevent NICS from being perverted into a gun registration system, Congress — thanks to votes of many Brady Bill supporters — specifically forbade the government to compile records of lawful purchasers.
As enacted, the national instant check law, 18 U.S. Code 922(t) provides that:
(2) If receipt of a firearm would not violate subsection (g) or (n) or State law, the [Instant-Check] system shall —
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.
This means, of course, that if the feds were following the law, there wouldn't be any records to examine, since they're supposed to be destroyed once a sale is approved.
It also means that every congressman who voted for final passage of the Brady Act in 1993 (including Senators Kennedy, Biden, and Leahy, as well as then-Representative Schumer) voted for this explicit ban on keeping the federal records of legal gun buyers.
The 1993 prohibition was reinforcing a 1986 Congressional statute, the Firearms Owners' Protection Act (FOPA), which creates a blanket ban on a federal gun registry. The relevant part of FOPA, 18 U.S. Code 926, provides:
(a) The Secretary may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter... No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.
Of the current members of the Senate Judiciary Committee who were in the Senate in 1986, only Kennedy voted against passage of FOPA. Senators Biden, Leahy, Hatch, Thurmond, Grassely, and Specter all voted for it, and hence for the registration ban.
In addition, the annual appropriation for the Department of the Treasury (which controls the Bureau of Alcohol, Tobacco and Firearms) always contains a ban on spending any funds for creation of a federal gun registry.
Quite plainly, all this means that (1) records aren't supposed to be kept on legal purchases of firearms, and (2) it's illegal to establish a national gun registration system. This was underscored in the recent case of RSM v. Buckles, 254 F.3d 61 (4th Cir., 2001), where the federal Court of Appeals pointed out that the government's power to scrutinize gun records was limited, and that a national gun-registration system — even one established through "backdoor efforts" — was illegal.
Even so, when preparing to implement the National Instant Check System, then-Attorney General Reno announced that the government would keep records on lawful gun purchasers for 180 days. The stated purpose of these records was to audit NICS, to make sure it wasn't being misused (e.g., to ensure that gun dealers were not requesting instant checks on people who were not their customers — for example, in case a gun-store owner started requesting background checks on his daughter's boyfriends).
The NRA sued, arguing that by saying the records had to be destroyed, Congress did not mean they should be destroyed "eventually, when the Attorney General gets around to it." The District of Columbia Court of Appeals, in a 2-1 decision, upheld the 180-day record retention. The majority opinion, written by a Clinton appointee, claimed that federal law "does not prohibit all forms of registration." The Clinton majority also asserted that because Congress did not say the records had to be destroyed "immediately," the records could be destroyed sooner — or later.
Dissenting, Judge David B. Sentelle, a Reagan appointee, retorted that Congress had been perfectly clear. "The Attorney General's position," wrote Sentelle, "strikes me as reminiscent of a petulant child pulling her sister's hair. Her mother tells her, 'Don't pull the baby's hair.' The child says, 'All right, Mama,' but again pulls the infant's hair. Her defense is, 'Mama, you didn't say I had to stop right now.'"
The Senate responded to Reno's machinations by restating its 1993 intent. In 1998, Senator Bob Smith (R., N.H.) proposed a rider to an appropriations bill to mandate immediate records destruction. The Senate approved the Smith Amendment, 69 to 31, thanks in part to the support of Senators Daschle, Leahy, and Murray. Later, a conference committee stripped the Smith Amendment, as well as some other non-appropriations riders, from the appropriation bill.
During the 2000 election, candidate Bush condemned the Clinton/Gore/Reno registry of legal gun buyers, and promised to terminate it.
Meanwhile, Reno promulgated a regulation cutting the retention time to 90 days. The Reno regulation forbids the use of the NICS registry for general law enforcement purposes, while allowing registry use for auditing the performance of NICS, as well as for civil or criminal cases arising from the operation of NICS.
Thus, it is plainly illegal for the FBI to dig into the NICS registry for general investigations. Had Attorney General Ashcroft allowed such access, he would have violated the law. (This summer, Ashcroft proposed a revised regulation to cut the retention time to 24 hours, but even this shorter time period violates the congressional mandate that records be destroyed, not kept for "a short period of time.")
Fox Butterfield neglected to tell his readers about the 1986 law forbidding a federal gun registry. He also didn't tell them about the 1993 law mandating destruction of records on legal buyers. Of the Smith Amendment — which passed the Senate 69-31 — Butterfield wrote, "That amendment was defeated."
The Senate Democrats had some basis for being angry with Ashcroft after he began the Senate hearing by declaring, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve." Ashcroft may be correct that his proposals are important for antiterrorism, and do not violate the Constitution. But our system of checks and balances works best when all potential civil-liberties restrictions are subjected to critical public scrutiny. Indeed, the value of the Leahy/ACLU loyal opposition was demonstrated at the Ashcroft hearing, when the attorney general promised the military tribunals would not normally meet in secret, and would be confined exclusively to terrorist offenses. (Both positions are much more rights-protective than the text of President Bush's November 13 executive order authorizing the tribunals.)
Ashcroft's harsh words against the skeptics were unfortunately reminiscent of Bill Clinton's denunciation of the civil liberties groups that lobbied against his plan to use the Oklahoma City bombing as a pretext for a huge expansion of federal surveillance and wiretapping, and use of the military in domestic law enforcement — although none of the Clinton proposals would even arguably have prevented the bombing.
The Democrats also feel betrayed that the Bush administration announced the military tribunals, the eavesdropping on attorney-client conversations, and similar new measures before the ink was barely dry on the misnamed USA Patriot Act, in which Senate had caved in to administration pressure for even more government surveillance, and for the power to conduct secret searches of homes and businesses. These new laws do not sunset and are not restricted to terrorism cases; they apply as well to federal enforcement of laws about pornography, drugs, endangered species, child support, and everything else.
After the House Judiciary Committee unanimously passed a much better, and properly focused, antiterrorism bill, Tom Daschle pressured Senate Judiciary Committee Chair Pat Leahy to surrender to Ashcroft's demands for a much broader bill. Leahy, did so. Leahy & co. feel double-crossed now that the administration has implemented military tribunals by executive decree, after Congress had already given the administration almost everything it asked for.
A proper response would be for the Senate Judiciary to commence hearings on repealing or sun setting the many non-terrorism provisions of the USA Patriot Act, which consist mostly of items that have been on the FBI bureaucracy's wish list for many years, and that had never been able to pass previous Congresses.
Instead, we have the absurd spectacle of senators denouncing the attorney general for respecting civil liberties, and for obeying federal statutes and his predecessor's regulation. At Ashcroft's confirmation hearings, Democrats extracted absolute promises that he would obey and enforce all the laws, even ones he disagrees with. Now, he's being skewered for not inventing a loophole in federal laws that allow no room for loopholes.
Would it make sense for Congress to change the law to allow registration of legal gun purchasers, to assist terrorism investigations? No one has yet made such a case. The FBI has gone fishing for every possible bit of information on the 600 aliens who have been detained. This doesn't mean that we need to drastically reduce the privacy of half our citizen population (about half of all households own guns) simply for the sake of fishing expeditions.
Remember, current law allows record retention for people who illegally attempt to buy guns. It would also allow putting the name of every alien with a temporary visa, and every known illegal alien, into the FBI database of prohibited persons — since those people cannot buy guns lawfully. [ 18 USC Sec. 922(d)(5)(B) & (g)(5)(B)].
Yet the St. Petersburg Times, perhaps the most antigun daily newspaper in America, wrongly told its readers last Sunday that Ashcroft had cut off access to records of illegal aliens who had been stopped from buying guns.
Current law also allows gun tracing — the investigation of the sales history of a particular firearm. If the FBI finds a firearm in the home of a detained person, the Bureau of Alcohol, Tobacco and Firearms is allowed to trace the gun (using its serial number) from its manufacturer to the wholesaler to the retail store. From there, the BATF can interview the person who bought the gun, whoever he transferred it to, and so on.
As part of the tracing that is already allowed, the BATF compiles lists of guns used in crimes, and can trace ownership records. The BATF has successfully connected some of the guns on its trace list with some of the detained people.
We don't know if any of the detained people had permanent resident status (which would allow them to buy guns). It's also possible that an illegal alien or a temporary could obtain a driver's license in his own name, buy a gun, and get approved by NICS. The problem is that, according to the General Accounting Office, some — but not all — non-immigrant aliens and known illegal aliens are put on the NICS prohibited list. What we need is better record keeping on aliens, not on law-abiding Americans.
Yet — even for aliens who slipped through the current, incomplete NICS list — if anyone purchases more than one handgun in a five-day period, his purchases are reported to federal and local law enforcement, and those records are currently available for checking.
It might help the FBI to gather information on detained suspects if every time a person checked into a hotel or motel, a record were kept by the federal government. They could then study the suspect's travel patterns. Yet we don't register all hotel and motel stays for the entire population. The privacy interests of the American people are held to outweigh the possible benefit to law enforcement.
Similarly, we could require the registration of everyone who purchases or checks out a book on nuclear physics or biological or chemical warfare. It's hard to deny that it would be helpful for the FBI to be able to check this database against the names of the detainees. But we don't keep lists of people who own books — even especially dangerous or incriminating books — because First Amendment and privacy rights are more important.
The case against gun registration is stronger still. Even besides the privacy issue, there is the undeniable fact that gun registration lists have been repeatedly used for gun confiscation. This has happened in California, New York City, England, Canada, Australia, and Nazi-occupied Europe, among other places.
Before Sarah Brady became head of Handgun Control, Inc. (now renamed "The Brady Campaign"), her predecessor, the late Nelson T. "Pete" Shields, explained the plan to The New Yorker in 1976:
"The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition — except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal." Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, p. 58.
Gun confiscation is, of course, an indispensable tool for tyranny, as our Founders knew — and as Mullah Omar proved quite recently. As the Boston Globe reported:
Omar guaranteed the residents a peaceful and secure community if they agreed to surrender their arms to him. If the residents were ever threatened by someone from outside, Omar pledged to be responsible for their safety.
Within three or four days, everybody in the town surrendered their weapons to Omar...
right to outlaw federal gun registration, and Attorney General
Ashcroft is right to obey the law. The media and the Senate — which
behaved with such irresponsible passivity when Ashcroft rammed the
so-called "USA Patriot Act" through Congress — ought to stop demanding
infringements of the Second Amendment. Instead, they should start
opposing all efforts to further erode the Bill of Rights.
Attorney General Ashcroft, meanwhile, needs to stop denouncing those
who are defending the Fourth and Fifth Amendments with the same
commendable scrupulousness with which he protects the Second.
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Share this page:
Follow Dave on Twitter.
Kopel's Law & Liberty News. Twice-daily web newspaper collecting articles from Kopel and those whom he follows on Twitter.
Author page on Amazon.
Search Kopel website:
Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.
Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action. Please send comments to Independence Institute, 727 East 16th Ave., Colorado 80203. Phone 303-279-6536. (email) webmngr @ i2i.org
Copyright © 2018