SECOND THINGS FIRST:
Attorney General Ashcroft's Protection Of The Rights Of Possible Terrorists To Possess Firearms

By MICHAEL C. DORF

Monday, Dec. 10, 2001

It was revealed last week that the Justice Department, in a move approved by Attorney General John Ashcroft, has prevented FBI agents from cross-checking the names of aliens detained on suspicion of terrorism against a federal database containing information about persons who attempted to purchase firearms. At a time when the Administration has asserted broad authority to question, detain, and try aliens according to standards that have prompted serious questions from across the political spectrum, the Justice Department's solicitude for the gun-possession rights of aliens suspected of terrorism is difficult to comprehend.

When asked by the Senate Judiciary Committee about the Justice Department's policy on use of the database, known as the National Instant Check System or "NICS", Ashcroft gave a seemingly straightforward reply. He said that "the law which provided for [NICS] indicates that its only permissible use . . . is to audit the maintenance of that system." In other words, his hands are tied by a statute that Congress itself enacted.

But the Attorney General is mistaken. In fact, even without any action by Congress, the Administration has the authority to reverse its current policy on use of NICS. And it could do so without threatening the ability of law-abiding citizens to possess firearms.

Federal Gun Control Law Background

Since 1968, federal law has prohibited firearms possession by several categories of potentially dangerous persons, including convicted felons, illegal drug users, those who have been adjudicated mentally ill, and persons illegally or unlawfully in the United States. In 1993 Congress passed the Brady Act to aid in the enforcement of these restrictions.

The Brady Act called for the creation of a national computer database that would enable a firearms dealer instantly to check whether a potential purchaser fell into a forbidden category. However, when the Act went into effect in 1994, the instant check system did not yet exist. During this interim period, the Act required that local police chiefs run background checks on firearms purchasers before a sale could become final.

In 1997, in Printz v. United States, the Supreme Court ruled that the interim provision of the Brady Act was unconstitutional because it "commandeered" state officials to perform a federal function in violation of the Tenth Amendment. The decision had no long-term practical impact, however, because by 1998, the national database, NICS, was up and running.

Privacy Provisions of the Brady Act

The interim provision of the Brady Act contains a prohibition that resembles what Ashcroft described in his testimony last week. It states that when a police chief or his equivalent issues a report finding that a person is eligible to purchase a gun, "the information contained in" the report may "not be used for any purpose other than to carry out the" Brady Act itself.

Notice, however, that even under this interim provision, the privacy protection only applied to people who successfully purchased firearms. It would not have prevented the FBI from reviewing Brady Act records of people who unsuccessfully attempted to purchase firearms.

The version of the Brady Act that is now in effect is similar. It provides that if a person is approved by NICS for a firearms purchase, the government must destroy all record of the application (except for an identifying number).

But crucially, the Brady Act does not forbid federal law enforcement authorities from using information gathered through NICS if the information relates to someone who was turned down for a firearms purchase. Indeed, NICS only saves information about people who are turned down for firearms. In response to questioning before the Senate, Attorney General Ashcroft should have said that NICS could be used to provide information about persons now in custody who unsuccessfully tried to purchase firearms. The Attorney General and his staff seem to have misread the statute.

So why did Ashcroft think he was forbidden from querying NICS with the names of suspected terrorists? It turns out that a provision of federal law does forbid using NICS even for obtaining information about people who unsuccessfully attempted to purchase firearms, but that provision is a federal regulation, 28 C.F.R. sec. 25.6(j), adopted in 1998, not a federal statute. The Administration could therefore lift the prohibition without any action by Congress.

Misplaced Second Amendment Concerns

Given the large number of legal changes that the Administration has swiftly adopted, it would take almost no effort at all to rescind the regulation in question. So why hasn't the Administration moved to do so?

It is possible that Ashcroft and his advisers simply misread the Brady Act. They have a lot on their plate right now and it's a long, complicated statute.

It seems more likely, however, that Ashcroft is concerned about the Second Amendment. He may choose to read the statute in light of the 1998 regulation because he believes that this reading is required by the Constitution.

But if that is his concern, it is almost entirely misplaced.

As I explained in an earlier column, there is an ongoing debate over whether "the people" who have a "right to keep and bear arms" refers to individual persons or to the people collectively when organized in what the Second Amendment calls "a well-regulated militia." Attorney General Ashcroft takes the individual right view, whereas most (but not all) courts have taken the collective right view.

Even under the individual right view, however, the Second Amendment would not bar the use of NICS proposed by the Senators. As the Fifth Circuit Court of Appeals recognized in its pro-individual right decision in United States v. Emerson earlier this year, the right to keep and bear arms, like other constitutional rights, is subject to limited, reasonable restrictions. Now the individuals at issue here are already being held in federal custody. In other words, they have been deprived of one of the most fundamental rights - liberty itself. Certainly, if there is a constitutionally sufficient basis to deprive a person of his very freedom of movement, there is a sufficient basis to search government records to see whether that person has attempted to illegally arm himself.

That's right, with a few limited exceptions, it is a federal crime for aliens temporarily in this country to possess firearms. Nor is there a plausible argument that this provision of federal law violates the Second Amendment, even under the individual right view. The individual right view, after all, repeatedly emphasizes the connection between, on the one hand, firearms possession for defense of self and country, and on the other hand, citizenship. It does not extend to aliens here on student or tourist visas.

The Rest of the Constitution

In his Senate testimony last week, the Attorney General questioned the patriotism of those who have raised concerns about his methods. In doing so, Ashcroft contravened the spirit though not the letter of the First Amendment. By invoking a non-existent provision of the Brady Act to defend his unwillingness to use NICS, Ashcroft honored neither the letter nor spirit of the Second.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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