Issue 093

September, 2002

 

ASHCROFT MEMO

 

The Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) has obtained through the Freedom of Information Act a copy of the full memo sent last November by Attorney General JOHN ASHCROFT to the United States Attorneys, which interpreted the Second Amendment as protecting an individual right rather than a government power to maintain militias.

 

So far, only small excerpts from this historic document have appeared in print, to our knowledge. Here, then, is the text in full:

 

MEMORANDUM TO ALL UNITED STATES’ ATTORNEYS

FROM   The Attorney General [John Ashcroft signature]

RE:    United States v. Emerson

On October 16, 2001, the United States Court of Appeals for the Fifth Circuit issued its decision in United States v. Emerson. I am pleased that the decision upholds the constitutionality of 18 U.S.C. 922(g)(8) - which prohibits violent persons who are under domestic restraining orders from possessing firearms. By taking guns out of the hands of persons whose propensity to violence is sufficient to warrant a specific restraining order, this statute helps avoid tragic episodes of domestic violence. As I have stated many times, reducing gun crime is a top priority for the Department. We will vigorously enforce and defend existing firearms laws in order to accomplish that goal.

Emerson is also noteworthy because, in upholding this statute, the Fifth Circuit undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms....” The Court’s opinion also makes the important point that the existence of this individual right does not mean that reasonable restrictions cannot be imposed Professor Bellesiles resigns  ·  United Nations declares war on gun ownership   · Poll: More gun laws won’t help  · Supreme Court hears “restored gun rights” case  · Can an NRA sticker on your car get you arrested?   ·  They picked the wrong house in our Page Eight “Parting Shot”

 the correct understanding of the Second Amendment.

The Department can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws. The Department has a solemn obligation both to enforce federal law and to respect the constitutional rights guaranteed to Americans. Because it may be expected that Emerson will be raised in any number of firearms cases handled by this Department, it is important that the Department carefully assess the implications of the Emerson decision and how it interacts with existing circuit precedent. Accordingly, United States Attorney’s Offices should promptly advise the Criminal Division of all cases in which Second Amendment issues are raised, and coordinate all briefing in those cases with the Criminal Division and the Solicitor General’s office.

As the Supreme Court has long observed, the mission of the Department “in a criminal prosecution is not that it shall win a case, but that justice shall be done...” Berger v. United States, 295 U.S. 78, 88 (1935). Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.

 

NICS Announces Streamlining of the Appeals ProcesS

Those denied the purchase of a firearm may now appeal using e-mail

 

Gun purchasers will be happy with a new development in the National Instant Criminal Background Check System (NICS).

 

NICS is updating its appeal process for those individuals prevented from buying a firearm.

 

NICS is the system which approves or denies the retail sale of firearms by Federal Firearm Licensees (FFLs) in their stores and at gun shows.

 

NICS is operated by a combination of the FBI and state and county law enforcement officials.

 

Now, individuals denied the purchase of a firearm may appeal that denial by contacting NICS at a new e-mail address.

 

It is not unusual for legitimate gun purchasers to find their application denied because of an erroneous problem in the NICS system: a convicted felon with the same name who has been properly identified as a disqualified person; a slip-up in which a wrong box has been checked, such as indicating a history of chronic mental illness; and other erroneous problems that would result in a NICS denial.

 

Previously, to initiate an appeal, individuals were required to contact NICS by U.S. mail, which commonly resulted in lengthy delays in the appeal process.

 

The National Instant Criminal Background Check System estimates that 27% of appealed denials are overturned for a variety of reasons, allowing the sale to proceed.

 

“Allowing the use of e-mail to initiate the appeal will shorten the process by at least one week and provide the consumer with a more timely decision on the appeal” says John Badowski, director of retail partnerships for the National Shooting Sports Foundation (NSSF), the largest and oldest trade group representing the firearms industry.

 

To initiate an appeal under the new e-mail process, individuals send their name, address and the NICS Transaction Number (NTN) to nicsappeal@leo.gov.

 

The NTN is the unique number generated by the NICS system and assigned to each background check, and provided to the FFL when the background check is made.

 

The FFL provides those denied individuals with the NTN in a brochure outlining the appeals process.

 

A copy of the newly designed NICS brochure with new e-mail instructions can be downloaded from the National Association of Firearms Retailers Web site at www.nafr.org.

 

Copies are also available free of charge to Federally Licensed Firearms retailers through NSSF and can be ordered by calling (203) 426-1320.

 

Many G-T Report subscribers are already familiar with the National Association of Firearms Retailers. It is a division of the National Shooting Sports Foundation and works to shape a brighter future for retailers by helping them stay on top of critical issues small businessmen and women face.

In addition, NAFR provides retailers with a unified voice in regulatory and legislative affairs, appropriate support services and professional development opportunities.

 

SUPREME COURT MAY SAY IF YOU CAN SHOOT PICTURES OF OSAMA BIN LADEN

 

Is target shooting at pictures of Saddam Hussein or Osama bin Laden an expression of free speech or a dangerous drill that could lead to the killing of real people?

 

The Supreme Court may answer the question in a case challenging a 4-year-old Massachusetts law forbidding target practice on human images at certain gun clubs. The ban applies to clubs that have a special license for large-capacity weapons.

 

The law is the only one of its kind, and was challenged by a group that includes gun clubs, a minister, and a retired military officer who competes in wheelchair shooting events. Their attorney, Stephen Halbrook, calls the law “political correctness to the ultimate degree.”

 

The court will announce this fall whether it will review the gun case.

 

FAMILY TO FILE LAWSUIT AGAINST MOONIE GUN MAKER

 

The family of Danny Guzman, who was shot to death in front of a Worcester, Massachusetts night club with a 9mm Kahr pistol in 1999, has filed a lawsuit against local gun manufacturer Kahr Arms.

 

Investigators have alleged that the gun was one of several stolen from Kahr Arms by Kahr employees with criminal records.

 

Also named in the suit is Kahr Arms’ parent company, One Up Enterprises, a holding company for the Reverend Sun Myung Moon’s Unification Church.

 

EMERSON CASE SET FOR RETRIAL

 

Timothy Emerson, a Texas doctor who challenged a federal law in a closely watched Second Amendment case, will be retried in federal court in Lubbock October 7 on a charge of possessing a firearm while under a restraining order.

 

The 5th Circuit Court of Appeals last October overturned U.S. District Judge Sam Cummings’ ruling that dismissed the charge against Emerson, but determined that the Bill of Rights protects an individual’s Second Amendment right to bear arms.

 

The case, which determined that the Second Amendment protects an individual’s right to bear arms, and not just the government’s power to form militias, was funded by the Second Amendment Foundation (SAF).

 

SAF said that regardless how Emerson’s retrial comes out on the possession issue, it is likely to be appealed.

 

“It’s not over yet,” said a SAF spokesperson.

 

DISTRICT ATTORNEYS FILE SUIT AGAINST CALIFORNIA ATTORNEY GENERAL

 

In an unprecedented move, two California district attorneys have joined a lawsuit against BILL LOCKYEAR, the state’s attorney general, challenging a law that bans firearms based on their cosmetic features.

 

The suit stems from problems in enforcing a 1999 amendment to the state’s “assault weapon” law, based on considerable trouble defining what constitutes an “assault weapon.”

 

Mendocino County District Attorney NORMAN L. VROMAN said, “Not only are the regulations themselves ambiguous, but unfortunately the Attorney General is sending mixed signals to front line law enforcement, prosecutors, and civilians working under him.”

 

APPEALS COURT UPHOLDS WISCONSIN’S ANTI-GUN CONCEALED CARRY LAW

 

A state appeals court has upheld Wisconsin’s law that makes it a crime to carry a concealed weapon for everybody but police officers.

 

HAROLD GRIMES III challenged the law as being an unconstitutional violation of his gun rights. The court, however, said a 1998 pro-gun constitutional amendment says nothing about the right to carry concealed weapons.

 

NEW BOOK GIVES SHOT IN THE ARM TO GUN OWNERS

           

JOYCE LEE MALCOLM, a Bentley College history professor, is a leading defender of gun rights. She has won praise from US Supreme Court Justice Antonin Scalia and testified on the right to bear arms before congressional subcommittees.

 

Malcolm’s latest book, “Guns and Violence: The English Experience,” was called “required reading” for “even the most hardened anti-gunners” in a recent Wall Street Journal review.

 

In “Guns and Violence,” her second work on gun rights, Malcolm challenges the conventional view that England, with the most restrictive gun laws of any democracy, is peaceful compared with America, where it is legal to carry a concealed weapon in 33 states.

 

Her new book came from research on the English Bill of Rights of 1689. That document, Malcolm said, noted Parliament’s recognition of the right of all English Protestants - about 90 percent of the nation - to keep arms to defend themselves. The Second Amendment is a direct descendant of this document, she said, although some scholars disagree, particularly CARL T. BOGUS, a law professor and former director of Handgun Control, Inc.

 

Although many Britons took advantage of this right, MALCOLM said, violent crime remained low for hundreds of years. A government study for the years 1890 through 1892 found only three handgun homicides, an average of one a year, in a nation of 30 million people. In 1904, there were only four armed robberies in London, then the world’s largest city.

 

But in the 20th century, the government began banning guns. Ostensibly, the concern was crime, Malcolm said, but the real reason, at least initially, was a fear of revolution. Today, the pendulum has swung so far against gun ownership that guns are banned and someone who defends himself with a firearm is often in more trouble than those he is fending off, Malcolm said.

 

MALCOLM dismisses critics such as BOGUS as not knowing much about English history.

 

Other academics praise her. Sanford Levinson, a professor of constitutional law at the University of Texas and a self-described liberal Democrat, said Malcolm is one of a growing number of scholars - Laurence Tribe, a constitutional law authority at Harvard Law School, is another - who have recently begun to take the arguments of gun-rights activists seriously.

 

“Guns and Violence: The English Experience” is a must-read for gun rights defenders. It is available through Amazon.com.

 

MORE TROUBLE FOR AUTHOR OF “ARMING AMERICA”

 

Emory University is continuing its investigation of historian MICHAEL BELLESILES, author of the notorious book that attacks the “myth” of early American gun ownership. BELLESILES is suspected of academic fraud.

 

“Professor Michael Bellesiles will be on paid leave from his teaching duties at Emory University during the fall semester,” the university said in a recent statement.

 

Emory was forced to begin its investigation after critics exposed extensive errors and apparent fabrication of sources in “Arming America.”

 

Scholars especially condemned “Arming America’s” misrepresentation of 18th- and 19th-century probate records, which Mr. BELLESILES said proved that guns were rare in America’s early days.

 

Northwest University law professor JAMES LINDGREN suggested that BELLESILES had fabricated some sources, and then claimed they had been destroyed in the 1906 San Francisco earthquake - but no such records had ever been in San Francisco.

 

In May, the National Endowment for the Humanities announced it was withdrawing its sponsorship from a fellowship awarded to Mr. BELLESILES.

Emory’s investigation of BELLESILES was complete last April, but results indicated that an investigation by an independent committee of distinguished scholars should begin. That investigation goes on.

dingell easily wins democratic primary against anti-gun democrat

 

Redistricting forced long-time gun rights supporter Rep. JOHN DINGELL (D-MI) into a primary with fellow Democrat, strongly anti-gun Rep. LYNN RIVERS. It was a rare primary match-up between incumbents.

 

It was also unusual because the two incumbents held similar views on many issues - except gun control. RIVERS was a strong advocate of gun control while DINGELL was just as strong for gun rights.

 

The Brady Center to Prevent Gun Violence worked feverishly to defeat DINGELL. They sent volunteers into Michigan’s newly created 15th Congressional District for six weeks taping get-out-the-vote messages by actor MARTIN SHEEN. Founder SARAH BRADY even went to the district to stump for RIVERS.

 

JOE WALDRON, executive director of the Citizens Committee for the Right to Keep and Bear Arms, said, “Rivers blew it by making the campaign a referendum on gun control. Despite all her celebrity support, voters in the strongly Democratic 15th District were not impressed.”

 

RIVERS lost by a lopsided 41% to DINGELL’s 59%. Even so, Handgun Control, Inc. claims DINGELL just “squeaked by.”

 

Some squeak.

 

KANSAS PRIMARY SURPRISES POLLSTERS, NOMINATES PRO-GUN CANDIDATES

 

The pollsters didn’t see it coming as pro-gun activists moved under the radar screen to nominate their candidates by a landslide in Kansas’ tight Republican races.

 

Last-minute campaign blitzes by gun rights supporters, combined with low voter turnout, helped TIM SHALLENBURGER win the GOP governor’s nomination, and PHILL KLINE to win the attorney general’s race.

 

Some analysts said the vote went to SHALLENBURGER because of his strong anti-tax message.

 

The KLINE race, however, could have had nothing to do with taxes, since attorneys general do not make tax policy.

 

The KLINE race depended heavily on pro-gun groups that came to his aid in the last days of the campaign. He had only a narrow lead before the primary, but after the ballots were counted, KLINE had 50 percent of the vote, with his major opponent, state Sen. DAVID ADKINS, capturing 39 percent.

VOTERS IN MAINE TOWN REJECT HUNTING BAN

 

 

A controversial referendum to ban hunting in Kittery, Maine’s 72-acre Town Farm Forest was soundly defeated in the recent election.

 

The vote was 1,093 to 396.

 

Residents have voted against changing the hunting-friendly ordinance that governs the forest on two previous occasions.

 

NANCY BOGENBERGER, a member of Kittery Wildlife Friends, was upset by the results. “Evil thrives when good men do nothing, and I think the people of Kittery did nothing,” she said.

 

Members of Kittery Wildlife Friends, led by SUE JOHNSON, had gathered more than 900 valid signatures in June in an effort to overturn the hunting ordinance.

 

The proposal put them at odds with local hunters and state wildlife officials, who said an abundance of deer in southern Maine poses a threat to local residents.

 

Lyme disease and automobile accidents involving deer would increase if another town in southern Maine closed a hunting zone, they said.