All hail Charlton Heston!

[clydefo]

Attorney General Ashcroft has ruled that given the way the law has been written, the Department of Gun Purchases cannot reveal to the FBI the weapons purchase histories of the terrorist suspects now in custody.
General Ashcroft can refuse to make their names public and can listen in on consultations with their attorneys, but he can't reveal to the FBI the fact that they may have obtained a boxcar load of AK-47's. I confess that even though I'm a strong 2A kind of guy, I'm at loss for words on this absurdity.

[mc2phat]

Following the law to the letter is required, and I applaud the current administration for doing this. Many people over the last few years have been led to believe that not following the law is acceptable, as long as the ends justify the means. Laws are not enacted and set up to be followed only when it's popular to do so.

[shecky981]

It's those damn hairy apes.







they're made of people, ya know.

[Colonel Sanders]

Regardless of what the law is, I do think that it should be perfectly fine to let the FBI or any other GOVERNMENT AGENCY to know what those terroroist bought.

Logan

[OOPS!]

I disagree, following the law is what makes us better than the terrorists. If the law is bad then congress will need to change it. Besides, a few firearms aren't what worries me. It's the 10 tons of nitrate fertilizer that anyone can buy that would be far more worrisome to me.



OOPS!

[troysvihl]

This demonstrates one thing: that when gun owners opposed the Insta-check system because they said it would be abused just like this . . . they were right, and not just being paranoid. With this sort of information lying around, it becomes irresistable for law enforcement not to want to take a peek.

Vindication for the NRA.


I gotta say, I'm surprised that Ashcroft said he wanted to release the info, but that it took his aides to tell him no. It's a bit disappointing to me that he would even consider releasing it. He was in the Senate when this law went through; he knows that the pro-gun control people were promising over and over again that the info would never be used for any other purposes.

[troysvihl]

Here's a reprint from another site that does a pretty good job of clarifying this whole issue and shows just how disengenuous the Ashcroft critics really are:

Ashcroft's position, remember, is that he can't go to the records of gun-purchase approvals from the "National Instant-Check System" to see if any detainees bought guns and had those purchases approved. I think Ashcroft is right. So -- at the risk of being boring, and even among lawyers discussions with quotations from regulatory statutes are generally considered boring -- here is some more.

First, 18 U.S.C. 922(t) provides, in relevant part:

(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 check, since they're supposed to be destroyed once a sale is approved.

The reason why this matters is that a national gun registration system is explicitly illegal 18 USC 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.

Taken together, this means that (1) there aren't supposed to be records to check at all if a purchase has been approved; and (2) it's illegal to establish a national gun registration system. This was underscored in the recent case of RSM v. Buckles, 254 F3d 61 (4th Cir., 2001), where the court noted that the power to scrutinize gun records was limited, and that a national gun registration system was illegal.

Likewise, while section 926(a) does not directly prohibit BATF's issuance of the letter in this case, that provision clearly demonstrates Congress' concern about any attempt by BATF to establish a national firearms registry. Section 926(a) would be rendered meaningless if BATF could issue limitless demand letters under section 923(g)(5)(A) in a backdoor effort to avoid section 926(a)'s protections for law-abiding firearms owners. Congress clearly did not intend such a result.

I believe that this ban on registration systems is a carryover from previous language in the 1968 Gun Control Act, but I'm not certain; it's too hard to do that kind of legislative history work from home, and anyway it's not really important.

The next question is, what is a gun registration system? The statute doesn't define that, but in common understanding, it's a system that lets the government find out who owns guns, as opposed to a "tracing" system that lets you find out where a gun (say, found at a crime scene) came from. This makes sense: all of these rules are in response to fears by gun owners that a system that lets the government identify gun owners will be abused to produce weapons confiscation. (Contrary to what Josh Marshall says, that's not "paranoid," since it's happened repeatedly, often in the face of previous government promises that it wouldn't). So when Ashcroft doesn't want to look through Instant-Check records -- which were supposed to have been destroyed -- to find out who owns guns, it's because doing so would turn the Instant-Check system into a gun registration system, which is illegal.

Naturally, if you don't think that gun ownership is good, and if you like the idea of gun confiscation -- which many on the left do (my unrelated namesake, columnist Barbara Reynolds, once said that President Clinton should declare "G-day" and send troops door-to-door confiscating weapons) -- then your answer to this (unless you just, you know, care about seeing the government obey the law) would be "so what?" To which I say, "so what?" After all, if you don't like freedom of the press, you won't care much about prohibitions against licensing rules and prior restraints for journalists, either. But that's an argument against the right, not against the provisions protecting it.

Could Ashcroft weasel his way out of this? Sure. Like pretty much all federal regulatory statutes, the ones governing firearms are sloppy, complex, inconsistent, and often unclear. That leaves lots of room for weaseling. But it seems odd to bash Ashcroft for not being a weasel, now doesn't it? Particularly in light of the strenuous effort at his confirmation hearings, just a few months ago, to extract from him promises that he would enforce the law regardless of his personal feelings. Now he's doing that. And people are complaining.

Well, as Ricky Nelson said, you can't please everybody. I've been critical enough of Ashcroft on other issues, as regular InstaPundit readers know. But on this one, he's getting a bum rap. It's probably just a coincidence that it all started out as a press release from a gun control group.

[clydefo]

<b>troysvihl,</b>

Notice that the statute does not say <u>when</u> they are to “destroy all records”.

Also, what does this passage mean? “Nothing in this section expands <b>or restricts</b> the Secretary's authority to inquire into the disposition of any firearm <b>in the course of a criminal investigation.</b> (emphasis added)

[troysvihl]

Notice that the statute does not say when they are to “destroy all records”.

Yeah, well that's part of the "wiggle room" that is alluded to by that author. But that "wiggle room" is only about when the records are to be destroyed. Hardly what I would call sufficient "wiggle room" to violate the law itself by using the information to check for terrorists.

But the legislative history of this law makes it pretty clear that the use of this information in any way other than to check the background of gun buyers will violate Congress's intent. The anti-second amendmant senators and congressman that voted for this law promissed that repeatedly. (isn't it interresting that some of those same people are now mad at Ashcroft for not making them a liar?)

Also, what does this passage mean? “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. (emphasis added)

Exactly what it says. This law only sets up a system of checking backgrounds of gun buyers, and this last sentence makes that clearer to any law enforcement officials. Congress is making it clear to any defendants or prosecutors that there isn't anything in this law that gives them more or less authority.

[clydefo]

<b>troysvihl,</b>

The portions of the stature that you’ve posted do seem to restrict the creation of a registration database but also seem to recognize that such records are subject to review in a criminal investigation.

[Computer Hobbyist]

I vote to change the law. After all, we are at war. Them dirty terrorists don't deserve no stinking rights.

Next time you 2nd amendment fans think about the concerns some of us have had about some of Ashcroft's other positions in the war on terrorism--remember that the constitution contains a whole bill of rights and many parts of that bill (religion, free speech, assembly, fair trial, etc) are more important than the right to carry a gun. Nearly all of those rights have been tempered by other legitimate considerations (you can't scream fire in a crowded theater for example). Most of those tempering considerations have been accepted by the majority of Americans. None of the others are absolutely sacrosanct. It seems that to some only the 2nd amendment is absolute.

CH

[troysvihl]

clydefo -

"Seem to restrict the creation of a database"? The statute comes right out and says specifically that it isn't to be done. I'm not sure how Congress could have made it any more clearer. Maybe if they had adopted my bold-faced type on that part. lol.

But I think Ashcroft's actions are pretty well supported with the combinatoin of that restiction on the database and the Congressmen's repeated statements that this info won't be used for anything other than a background check. So I really don't think Ashcroft's refusal to use the background check info is an example of the NRA's political muscle. Although, I'm sure that the NRA will throw their weight behind getting that law followed and destroying that information. (at least I certainly hope so)




Computer Hobbyist - Well voting to change the law is a whole other issue. As is ranking the importance of individual rights enumerated in the Bill of Rights. Personally, I think that the rights are all pretty important. As your post demonstrates, soon as you start quanitizing their importance, it become pretty easy to curtail them. And that effectivley neuters the Bill of Righs alltogether, since the freedoms contained therein will vary according to who is reading it. And that seems to frighten me a bit more than it does you.

BTW, that "fire in the theater" example is often used by the anti-gun crowd as an example of how the Bill of Rights can be limited. It stems from a Supreme Court decision where Justice Oliver Wendell Holmes actually said: "But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

But it's not a very good example of how the second amendment can be limited because they usually leave out the parts about about doing something 1) falsely that 2) that causes panic, and 3) is a clear and present danger.

So analogizing that supposed limit on the first amendment to limits on the second is only really useful in curtailing second amendment freedoms in cases like shooting a gun at imaginary bad guys in a crowded theatre. But it doesn't do much to convince me that a right to purchase, own, or carry a gun can be constitutionally curtailed. But I digress.



On a completely unrelated and brazenly off-topic note, here's something I came across when I was researching the Holmes quote. I found it rather funny:

Drug prohibition is another example of the triumph of hope over experience. Proof positive that stupidity, not hydrogen, is still the most abundant element in the universe.
- Unknown

[clydefo]

<b>troysvihl,</b>

I did not intend to sound reluctant to concede that the statute bans gun registration. I’ve only seen excerpts and will readily accept your interpretation on that. But what about the <b>”criminal investigation”</b> clause. The statute appears to be going out of it’s way not to exempt the data as evidence in criminal cases.

[troysvihl]

The statute appears to be going out of it’s way not to exempt the data as evidence in criminal cases.

Yes, you're right it does go out of its way to say that. But if the whole statute is to be followed, that data should have been destoyed. It's just sloppy drafting on the part of Congress to not have addressed when it's to be destroyed.

[clydefo]

<b>troysvihl,</b>

I don't know what Congress intended, maybe they fully expected the records to be available for some period of time prior to destruction in case a crime came to light and needed to be investigated. In any event, perhaps Mr. Letter-of-the-Law Ashcroft should reconsider his refusal to allow the FBI access.

[troysvihl]

I don't know what Congress intended, maybe they fully expected the records to be available for some period of time prior to destruction in case a crime came to light and needed to be investigated.

No, Congress's intent is clear that these records were just for the instant-check. It's repeated over and over again in the Congressional record.


In any event, perhaps Mr. Letter-of-the-Law Ashcroft should reconsider his refusal to allow the FBI access.

Thereby turning the instant-check system into a registration system, which is a clear violation of the law.

[clydefo]

<b>troysvihl,</b>
You point out:
"...the legislative history of this law makes it pretty clear that the use of this information in any way other than to check the background of gun buyers will violate Congress's intent. The anti-second amendmant senators and congressman that voted for this law promissed that repeatedly."

Surely they were only agreeing that the data would not be used in any other administrative or regulatory manner. They could not have intended to thwart criminal investigations, as they had just written a provision saying that they were not restricting "...authority to inquire into the disposition of any firearm in the course of a criminal investigation".

The occasional investigation is not going to establish a registration system. The courts would never allow the Feds to engage in some sort of ruse and seek court-ordered investigations of every gun transaction, if that is the fear.

Give it up, Ashcroft!

[troysvihl]

The occasional investigation is not going to establish a registration system.

That's precisely what a registration system is. Anytime you keep track of who bought whatever gun, it's a registration system. Strictly speaking, an insta-check system wouldn't save any information but merely check someone's criminal record. That was Congress's goal in stating the info is to be destoyed.

But we're begining to go round in circles with this conversation. The reason we're going in circles is because of the crappy drafting in this statute. Which proves my point that Ashcroft is certainly not abusing his authority with his interpretation. (despite what the popular media is stating)



The courts would never allow the Feds to engage in some sort of ruse and seek court-ordered investigations of every gun transaction, if that is the fear.

Well, that isn't precisely what is feared. What is feared is that the infirmation gained in an insta-check system is compiled into lists and then that list is used to confiscate weapons when/if they become illegal. And it's quite a well-founded fear.

[Computer Hobbyist]

troysvihl

I know you slavishly believe the constitution prohibits any restriction on gun ownership. Are you aware that there are already reasonable restrictions on gun ownership?

BTW I hear all the stuff about everybody having the right to wander about the countryside carrying a gun, but I never here anything about the right of the rest of us to be free from the fear that a gun owner will blow our brains out while the gun owner is irresponsibly exercising his constitutional rights. I'll never understand why you all refuse to recognize that rights bring responsibilites. Sometimes being responsible means you partially sacrifice a right for the sake of the common good. And don't tell me that we have criminal courts to protect rights. Court's punish people for acting irresponsibly. They don't stop them from acting irresponsibly in the first place. Dead is dead. A person who's brains have been blown out by somebody irresponsibly exercising his rights has never been brought back to life by a court.

I don't want to get into a debate about gun ownership. Legally Ashcroft is following the law. I just think it should be changed to allow us another (and very reasonable) tool to get at the terrorists.

As to your canned response to the Holmes quote, name a constitutional right and I will show you how and when it has been reasonably restricted. As anyone who has studied the constitution knows, in the proper context every right can come into conflict with other rights, requiring that it be restricted. The second amendment isn't any different.

CH

[Alan]

I wasn't going to respond because I was enjoying the intellectual discussion on this topic. I have to strongly disagree with CH and Clyde. The greatest freedom we have in this country is the freedom to make our own decisions whether they be right, wrong or indifferent. I am not going to discuss the merits of 2A as I suspect we all agree gun ownership is embedded in the heart of our Constitution. In fact 1A thru 10A was added by the framers to further clarify items they felt were not appropriately covered in the main body.
As for Clyde's points, there is no relevent correllation to the number of guns purchased and terrorism. As far as I know there have been no domestic acts of terrorism involving guns. The Unabomber used homemade supplies and nails, Oklahoma City was every day regular fertilizer and even 9-11 hijackers used box cutters. Are we going to open a national registry for purchasing nails, fertilizer and box cutters at Home Depot? Or are we going to limit buying only 2 boxes of nails for a 30 day period?
As for CH's points, I'm not sure what is his point. Gun ownership has already been restricted by banning assault rifles, large capaciy clips, bayonet lugs and automatic weapons. 2A is not an open deal to buy any gun you desire. The price being paid is to deal with the consequence of a miniscule number of individuals who misuse their responsibility rather than to eliminate the right completely. We deal with drunk drivers all the time but would we eliminate the ability to purchase cars? 1A means in order to get a free press, ability of expression and assembly we must put up with the undesireable byproduct of pornography.

[Computer Hobbyist]

Alan

Maybe your right and I don't have a point, but I do have an observation. I believe your analogy between gun ownership misuse and automobile ownership and misuse is misplaced. Gun ownership is relatively unimportant in the grand scheme of things (if you think your hand gun or deer rifle will be important to winning a "revolution" if the government gets out of control, you are deluded -- as the Russians have proven, a fax machine is far more important than any gun when it comes to throwing off an oppressive government), while in many modern societies, ownership and operation of an automobile is the moral equivalent of freedom. Beyond being useful as hunting tools, for target practice and to give the owner a way to psychologically compensate for physical short comings, guns are of relatively little value. For the past 40 years I have owned several and have never had occasion to point one at any intruder. I dare say most other gun owners (except for people in law enforcement and the military) have had the same experience. Only a fool would argue that guns are not extremely dangerous. Cars are also extremely dangerous. Unlike guns, however, cars are extremely important and useful. Why are cars more highly regulated than guns? The answer is complex, but part of it has to do with the gun industry's knowledge that some men have a juvenile need feel "real power" in their hands. All hail Charlton Heston--the symbol of male sexual prowess.

CH

[clydefo]

"As for Clyde's points, there is no relevent correllation to the number of guns purchased and terrorism. As far as I know there have been no domestic acts of terrorism involving guns." <b>-Alan</b>

I'm not claiming there is a correlation. But wouldn't it be nice to know? If Ashcroft would stop deliberately misreading the statute, perhaps the FBI might find out if any gun terrorism is in fact being planned.

[LawyerRon]

Next month my younger daughter is traveling to Australia to live for 6 months as an exchange student. Guns are banned there. It's a very nice feeling.

[highrisemech]

LawerRon that is a nice point that guns are banned in that country, but the fact is that law breakers don't care what is banned. Why? Because they are law breakers. If guns were banned in this country who would have them. I'll tell you who the bad guys. Then they would terrorize you in your own home. The fact is that guns in general right or wrong are a deterrant. Now I'm not saying you need to own an armory but it would be wrong to take the guns out of everyones hands because then the real trouble would start. The thought that you may have a gun is what keeps someone from sneaking into your home in the middle of the night. Not that you do or do not have one but the thought that you may have one.
I'm a city dweller but I liken it to the old west modern style.

[LawyerRon]

Quote:
"The fact is that guns in general right or wrong are a deterrent."

highrise,
You are perpetuating the myth that guns are a "deterrent" to someone breaking into your home. There's simply no evidence that they act as a deterrent. So what if you own a gun, they'll just wait till you're not home, as most criminals do. Yes, we've all heard about people being "terrorized" in their homes but such crimes are statistically rare compared to your everyday burglary, which, by the way is driven by the need for drug money.

I happen to presently own two guns (sold the rest years ago) and used to shoot in competition. I even have a "50 Straight" patch in Trap. I've also hunted a bit.

However, I'm not advocating banning guns as that's really an unworkable option. I support the right to own guns. My point is many in our society put forth the idea that "guns equal personal safety" and that's simply not true. If a person wants to kill you with a gun, there's not much you can do about it, even if you're armed. He/She will still get the drop on you; shoot you in the back, etc.

If you still think you're safer with a gun, answer this hypothetical:

Suppose you're in a dark movie theater. We'll stipulate that no criminals are present. Everyone was handed a handgun on the way in for their personal safety. Do you still feel "safer" now?

I hope there's no "unstable" people in the audience.

[highrisemech]

LawerRon I understand your point, but I still feel they are a deterrent.
The hypothetical simply does not match the current circumstances.
Indeed most robbers will wait till your not home but that is because you are not home to shoot them or in fact defend your property. And agreed banning will not work it never has I can sight prohibition as an example. I live in a major city
and have owned one handgun for over fifteen years and it has been collecting dust for that long but it does its job of home defence. I have no disagreement with you but just wanted to make the point on banning. Take care.....;)

[Computer Hobbyist]

highrisemech

The best deterrent is a telephone.

Too many things can happen if you pull a gun because you think somebody is roaming around your house. Despite what you might believe, most of them are bad.

A gun is something to be used only as a last resort. If your in a city, the police can generally be at your home within a few minutes.

Instead of confronting the "bad" guy, you should call the cops and leave the building. Let the professionals handle the problem.

As to defending your property, I've never seen anything worth more than a human life. Even the life of a scumbag thief.

CH

[Alan]

CH. I didn't mean to imply you had no point. I just wasnt able to follow it. I do see your last point that cars can be more useful and therefore considered more important. But as someone else earlier stated you cannot try and quantify value because not everyone has the same value. Therefore I tend to try and make all things equal. PRODUCT Z, when misued, can be deadly. Therefore we should restrict PRODUCT Z. Can I substite guns, cars, knives, forks, ropes, plastic bags, axes, baseball bats, etc for PRODUCT Z and feel comfortable with that statement? Why should guns be singled out? My point is that they shouldn't. Once you start banning one thing because of the possiblity of potential misuse, you can ban everything.
On the same line to Clyde, are we going to go have all stores keep track of all fertilizer sales and nail sales so that Ashcroft can go through those records too? Once again just because it's a gun should not single it out for exception.
Even though I am an avid gun collector, especially military assault weapons, I agree with LawyerRon that a gun is not for home defense. A properly stored weapon would have a trigger lock on the weapon and the ammunition stored separately. If someone were to break into my home I'd be better off using a golf club than my gun because I'd never be able to load it up in time. I guess I am one of those responsible gun owners who feel under seige because of a few bad apples.

[highrisemech]

CH,
I feel I must respond to your statement.First of I understand that everyone has a different opinion and I respect each of them. On that note you would think that you could get a cop quite easily living in a major city but in fact the reverse is true, I have seen responce times vary from two minutes to over 30 minutes for all high priority calls the reason why is that these forces at times can be taxed to the limit. I do aggree there is nothing more important than a human life but if an individual wants to take thier life and threaten mine in my home they best be prepared to face the consequences of that act. I do use a trigger lock and there is only one key (mine) the ammo is hidden seperatly as well as the gun. I have an 18 year old son and a 14 year old son
and I don't think they have ever even seen it but I can say this they will never have access to it as well. My oldest son graduates this year and he is going straight into the police academy to join the Philadelphia Police Dept.
My point of view is this, if a person breaks into your home while you are asleep this would be a very dangerous individual. Telephone yes, obviously try to avoid confrontation and no I don't recommend a gun for anyone to defend thier home that is the choice of the individual. But this is my choice and right, and believe me I have never slept better since owning it. It is a last resort means of defence.