by Dave Kopel
America's 1st Freedom, Feb. 2009
President-elect Barack Obama’s nomination of Eric Holder for attorney general is terrible news for the Second Amendment—and for the rule of law.
In the Clinton administration, Eric Holder served as deputy attorney general—the second highest-ranking position in the Department of Justice (DOJ)—under the infamous Janet Reno. Holder’s performance then and afterwards showed that he was a perfect fit for a department run by one of the worst, most lawless attorneys general in American history.
In early 2008, as the Supreme Court was getting ready to hear the Heller Second Amendment case, Holder joined Reno and several other former officials from the Clinton Department of Justice in signing an amicus(“friend of the court”) brief. The brief was filed in support of the District of Columbia’s ban on all handguns, and ban on the use of any firearm for self-defense in the home. (The brief is available at www.nraila.org/heller/.)
The Reno-Holder brief argued that the Second Amendment is a “collective” right, not an individual one, and asserted that belief in the collective right had been the consistent policy of the U.S. Department of Justice since the Franklin Roosevelt administration. A brief filed by some other former attorneys general and DOJ officials took issue with the Reno-Holder characterization of DOJ’s historical position. But the Reno-Holder brief did accurately express the policy of the Department of Justice when Janet Reno was attorney general and Eric Holder was deputy attorney general. At the 2000 oral argument before the Fifth Circuit Court of Appeals in United States v. Emerson, the assistant U.S. attorney followed the Reno-Holder line, and told the judges that the Second Amendment was no barrier to gun confiscation, not even of the confiscation of guns from on-duty National Guardsmen!
The Supreme Court’s decision in District of Columbia v. Heller unanimously rejected the Reno-Holder theory. A majority of five justices, led by Justice Antonin Scalia, recognized that the Second Amendment is an ordinary individual right, similar to the First Amendment rights of freedom of speech and free exercise of religion. The four dissenters, led by Justice John Paul Stevens, agreed that the Second Amendment protects an individual right, but argued that it applies only to people serving in official state militias.
Notably, not one justice agreed with the Reno-Holder assertion that the Second Amendment is a “collective right,” which belongs to nobody at all. The “collective right” version of the Second Amendment is as self-evidently absurd as the notion of “collective property” in a Communist dictatorship; supposedly the property right belongs to everyone “collectively,” but in practice it belongs only to the government, and no person has any rights.
As deputy attorney general, Holder worked hard to restrict gun ownership. He advocated federal licensing of handgun owners, a three-day waiting period on handgun sales (even though the National Instant Check System does its work in a few minutes to a few hours), rationing handgun sales to no more than one per month, banning possession of handguns and so-called “assault weapons” (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration and mandatory prison sentences for trivial offenses (for example, giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday).
He also promoted the factoid that, “Every day that goes by, about 12, 13 or more children in this country die from gun violence”—a statistic that is true only if one counts 18-year-old gangsters who shoot each other as “children.” Gangsters murdering each other is a serious problem, but it is less than honest to describe the problem as involving “children”—as if the gangsters were innocents, rather than criminals who deliberately put themselves in harm’s way.
After the 9/11 attacks, Holder penned a Washington Post op-ed titled “Keeping Guns Away From Terrorists,” arguing that a new law should give “the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale.” In other words, if you sell your brother-in-law a gun, both of you and the gun ought to be entered into a federal gun registration database.
As Florida State University professor Gary Kleck has observed, none of the purported purposes of gun registration make sense. Every stated objective (e.g., keeping guns away from criminals or terrorists) can be served just as well by other measures. The only thing that gun registration accomplishes and that other measures do not is making gun confiscation much easier.
Holder also argued that prospective gun buyers should be checked against the secret “watch lists” compiled by various government entities. That is, if a federal official puts you on a secret list, you should automatically lose your right to arms—with no due process even if you can prove that you are entirely law-abiding.
In 2007, the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional. (That was the case that D.C. appealed and lost in the Supreme Court in 2008.) Holder complained that the Circuit Court decision “opens the door to more people having more access to guns and putting guns on the streets.” So to Holder, a decision allowing guns in the home means “putting guns on the streets,” and allowing people to have “access to guns” is bad in itself.
As attorney general, Holder will have many opportunities to implement his anti-freedom beliefs. The attorney general is the boss of the U.S. Attorney’s Offices all over the country; these attorneys are the front-line legal enforcers of the federal criminal laws governing guns, and of the regulations imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). When Reno and Holder ran the DOJ, the U.S. Attorney’s Offices aggressively prosecuted gun owners and sellers, often on flimsy charges. We can likely expect many more such prosecutions under Holder.
In addition, the attorney general determines the official legal position of the U.S. government in everything from a trial court in Guam to arguments before the U.S. Supreme Court. Under the Bush administration, the DOJ attorneys have acknowledged the Second Amendment’s individual right, and they have avoided taking the most extreme positions to limit that right.
For example, in the aftermath of Heller, the U.S. Attorneys fight to uphold the federal laws that ban certain “prohibited persons” (e.g., convicted felons, persons dishonorably discharged from the military) from possessing guns. But the attorneys do not tell courts that gun restrictions must be upheld whenever there is a “rational basis” for the restrictions. In practice, the government wins well over 99 percent of cases decided under a “rational basis” standard, and Attorney General Michael Mukasey recognizes that rational basis is much too weak a standard for the protection of the explicit constitutional right to arms.
Attorney General Holder could change that approach overnight. He could use DOJ attorneys to try to convince courts to adopt interpretive principles that would make the Second Amendment close to a nullity.
Right now, there are several cases in lower federal courts, many of them led by the National Rifle Association, which address the question of whether the Second Amendment is a limit only on the federal government or whether it also applies to state and local governments. Hopefully, one of these cases will reach the Supreme Court. As these cases move along, the Holder DOJ will use every available resource to argue against state and local enforcement of the Second Amendment.
As aggressive as Holder is with gun owners, he is not always a tough prosecutor. Before being elevated to Janet Reno’s right hand, he ran the U.S. Attorney’s Office for the District of Columbia. He was zealous in enforcing criminal penalties for violating the D.C. handgun ban. But in all the years that he ran the D.C. office, that office never initiated a single public corruption case against a D.C. official. Sworn to enforce federal anti-corruption laws in a city with one of the most notoriously corrupt governments in the country, Holder displayed his political acumen by letting D.C. corruption run rampant.
As deputy attorney general, Holder played a key role in President Clinton’s pardon of terrorist financier Marc Rich. Rich had fled to Switzerland in 1983 to avoid prosecution for tax evasion and for arranging oil deals for the terrorist dictatorship in Iran while it was holding Americans hostage.
But his wife made extravagant donations to the Clinton Library and to the Democratic Party. Rich received a presidential pardon on Clinton’s last day in office. In engineering the Rich pardon, Holder carefully maneuvered to keep the regular DOJ attorneys from reviewing the pardon application. A 2003 report by the U.S. House Government Reform Committee found that Holder abused the public trust in regard to the Rich pardon.
As much as Janet Reno was an enemy of the Second Amendment, she lacked one crucial tool that will now belong to Holder. Ever since the creation of the Bureau of Alcohol, Tobacco and Firearms (BATF) during the Nixon administration, it had been part of the Department of the Treasury. This is because the Bureau’s predecessor had been put in Treasury during the days when federal controls on alcohol, tobacco and firearms were based only on federal tax power. In general, Treasury secretaries spent their time thinking about things like interest rates, and they left BATF alone, except in the relatively rare occasions when the White House wanted BATF to do something.
But after 9/11, federal criminal justice was reorganized, and BATF was transferred from the Treasury Department to the Justice Department. As part of the reorganization, BATF had “Explosives” added to its name.
Treasury secretaries are not inclined to think much about federal gun policies, but attorneys general certainly are. Even under the best of times, BATFE’s leadership (although not necessarily all of its agents) has had a troubled relationship with the Second Amendment, and under Holder, that relationship will likely grow much, much worse.
Like other federal regulatory agencies, BATFE has great powers to impose regulations without asking Congress for permission. Courts tend to be highly deferential to agency decisions, and only rarely are agency regulations overturned.
The Holder BATFE will have vast powers to expand federal bans on firearm imports, and to put new restrictions on federally licensed firearm dealers and manufacturers. Ominously, BATFE also has the power to re-classify some guns as subject to the National Firearms Act (NFA)—leveling the same restrictions that currently apply to the purchase or possession of machine guns and sound reducers: a fingerprint-based application and registration that takes months, plus heavy federal taxes for the mere privilege of possession.
Given Holder’s record, you might think that he’s against guns in all circumstances. But there was one notorious case in which his purported concern “for the children” led to some very aggressive use of firearms. Holder was deeply involved in the gunpoint, nighttime kidnapping of Elian Gonzalez in 2000. Elian and his mother had fled Fidel Castro’s tyranny in Cuba, and the mother had died during the escape. Elian was welcomed and sheltered by his relatives in Florida, but Castro wanted him back, and Reno and Holder were happy to oblige.
Holder had publicly promised that there would be no nighttime home invasion. After the nighttime invasion occurred, he claimed that he had kept his promise because the attack had actually taken place an hour before dawn.
According to Reno, the pretext for the paramilitary invasion of the 6-year-old’s home was that someone in his family might have been licensed to carry a handgun under Florida law. Although a Pulitzer Prize-winning photo showed a federal agent dressed like a soldier and pointing a machine gun at the man who was holding the terrified child, Holder actually claimed that Gonzalez “was not taken at the point of a gun” and that the federal agents whom Holder had sent to capture Gonzalez had acted “very sensitively.”
If Holder believes that breaking down a door with a battering ram, pointing submachine guns at children (not just Elian), and yelling “Get down, get down, we’ll shoot” is an example of acting “very sensitively,” his judgment about the responsible use of firearms is grossly insufficient for a cabinet officer who would be in charge of thousands and thousands of armed federal agents, many of them paramilitary agents with machine guns.
Holder’s lack of integrity about the Rich pardon and the Gonzalez abduction would make him a poor choice for any law enforcement position. He is especially unsuited for attorney general—a position that, more than any other in the Cabinet, requires the rectitude to stand up to political pressure from the White House to bend the rule of law.
Additionally, Holder’s relentless hostility to the Second Amendment makes him an awful nominee for chief law enforcement officer of the United States—the man who is supposed to defend the Constitution and protect all the rights of the American people.
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