Ashcroft & Guns
From: robert n lyman <rlyman@u.washington.edu>
Date: Wed, 12 Dec 2001 10:27:44 -0800 (PST)
To: <means@hearstdc.com>
Cc: <letters@keepandbeararms.com>
Subject: Ashcroft and Guns
Ms. Means,
Your recent editorial concerning AG John Ashcroft's refusal to permit the FBI
to use the records generated by the NICS as part of the terrorism probe aroused
my interest, and also my ire. You are, of course, entitled to your own opinion.
You are most certainly NOT entitled to your own facts.
Let me begin by saying you are absolutely
right to condemn Ashcroft for being "selective about which civil liberties
he thinks are important." I have personally written my Congressional representatives
about the erosion of the Bill of Rights in the anti-terror fervor. However,
I should point out that you are just as guilty of this hypocrisy as Ashcroft,
as you attack the Second Amendment while defending the rest of the Bill. This
is an odd disease which has infected journalism. One would think that people
whose livelihoods depended on the Bill of Rights would be less eager to destroy
it piecemeal.
Setting that aside, allow me to
point out a couple of factual problems with your article. To begin with, if
we assume that you are correct in asserting that none of the currently detained
suspects is a U.S. citizen or permanent resident (how on Earth can you know?),
then NONE of them is permitted by law to own a gun without jumping through all
manner of legal hoops, which vary from state to state. Legal non-citizen purchases
can most likely be traced through state law-enforcement agencies. If, on the
other hand, they used fake I.D.'s to make a gun purchase, it is not clear how
the NICS can help, unless the FBI knows all of the possible aliases under which
such a purchase can be made. In any case, it is not clear how perfectly legal
transactions affect this case, given that those bent on mayhem have a sizeable
black market to turn to, which can supply them with better weapons at lower
prices.
Second, Ashcroft's position on the
law (that it forbids him to reveal NICS records) is exactly the position which
the Brady Bill's supporters took back in 1993. It would have been impossible
to secure NRA support for the Brady bill (yes, the NRA did support the law at
the time) without assurances that records would be promptly destroyed and not
used against legal gun purchasers. It is worth noting that Ashcroft is willing
to turn over NICS denials, which represent attempted illegal transactions. You
somehow missed this very important point in your article.
Thirdly, your interpretation of the Miller case is flawed. This is hardly your
fault; it has been grossly misinterpreted by thousands of lawyers, almost none
of whom have bothered to actually read the text of the decision. I encourage
you to read it for yourself: http://www.2ndlawlib.org/court/fed/sc/307us174.html.
It is a short decision, written in plain language. The key element is the following:
"The Court can not take judicial notice that a shotgun having a barrel
less than 18 inches long has today any reasonable relation to the preservation
or efficiency of a well regulated militia; and therefore can not say that the
Second Amendment guarantees to the citizen the right to keep and bear such a
weapon."
In other words, "a short-barreled
shotgun is not (to our knowledge) a suitable military weapon, and therefore
the citizen has no particular right to own it."
This can then be reversed: if a
weapon is suitable as an infantryman's personal arm, then the citizen DOES have
a Second Amendment right to keep and bear it. That is a rather painful proposition
for freedom-hating liberals.
This decision CANNOT be interpreted
as supporting the notion that only the National Guard has rights under the Second
Amendment--if that were the intent of the Miller court, then the entire appeal
would have been dismissed for lack of standing. Miller was not a member of either
the National Guard or some other militia, and thus would have had no rights.
Clearly the "collective rights" theory falls flat, at least as regards
the Miller decision.
The recent Emerson decision casts
new light on the Miller decision. If you have time (I don't) then read it here:
http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm.
Finally, a non-factual point. The tragedies of Sept. 11 were committed by foreigners
with boxcutters. Do you think that you and your left-wing friends could leave
law-abiding, peaceful American gun owners (that would be "the gun lobby"
to you) alone for a change?
Robert Lyman
Seattle, WA
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