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Ashcroft & Guns

From: robert n lyman <>
Date: Wed, 12 Dec 2001 10:27:44 -0800 (PST)
To: <>
Cc: <>
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:

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:

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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