Wednesday, May 9, 2007

The relationship between the Bush administration and the pro-Second Amendment community has been lukewarm, at best.

The high point in that relationship came early in George W. Bush’s first term, when former Attorney General John Ashcroft wrote a letter to the National Rifle Association, clearly stating the administration’s view that the Second Amendment guarantees the individual right to keep and bear arms. Since the time of that letter — May 17, 2001 — reasons for celebration by us Second Amendment advocates have been few and far between. Based on a recent legislative initiative by Attorney General Alberto Gonzales, in cahoots with several anti-gun senators, the road is certain to continue rocky.

At issue is whether this or future administrations would have the statutory power to deny the sale of a firearm to a person otherwise lawfully entitled to buy a gun, based on mere suspicion the prospective purchaser is somehow connected with acts of international or domestic “terrorism.” At first blush, this might seem a no-brainer; with common sense telling us “of course we don’t want terrorists being able to purchase firearms.” The Senate sponsor of the administration proposal, New Jersey Democratic Sen. Frank Lautenberg, even put out a news release announcing introduction of the bill to “close the terror gap.”

The legislation is a clear sign that when it comes to increasing government power to control individuals and diminish civil liberties, there is hardly a hair’s breadth of difference between the two major parties. The bill represents not only bad policy but extremely bad law; both reasons, one presumes, why the NRA and other firearms rights groups openly oppose it.

First, let’s take the title — the “Denying Firearms and Explosives to Dangerous Terrorist Act of 2007.” Not as catchy as 2001’s “USA PATRIOT Act,” but it makes its point; or does it? The title implies that but for this legislation becoming law, “dangerous terrorists” would be able to lawfully obtain “firearms and explosives,” both of which require government approval to acquire.

Think for a moment. If someone is a “dangerous terrorist” wouldn’t the government already be prosecuting them, or shouldn’t they already be in jail? If the government truly believes a person fits the definition of someone who has engaged in terrorist acts, or plans or conspires to do so, why isn’t that person prosecuted? If they were prosecuted, the government already has the ability under current law and procedure to keep them from possessing or lawfully acquiring firearms or explosives.

The answer to this puzzle lies in the nature of government power, and in the details of the legislative proposal.

It is axiomatic that government is never content with the degree of power it already has but always seeks more. Any piece of legislation proposed by any administration can be presumed at some level to represent an effort to increase government power.

Here, the government already has the power to have prosecuted anyone it honestly believes is a terrorist and to deny that person the ability to acquire firearms until the case is concluded with a conviction (in which case the ban becomes permanent) or acquittal (in which case the person is deemed not a terrorist and therefore able to lawfully possess firearms, unless otherwise prohibited).

The government seeks in this legislation to gain control over a much larger and more amorphous category — persons who might be terrorists or somehow connected with a disfavored organization. In the words of the proposal, the government could henceforth prohibit anyone “appropriately suspected” of being engaged in some sort of activity perhaps “related to terrorism,” from purchasing a firearm.

Not since former Attorney General John Ashcroft coined the nonlegal term “person of interest” in the wake of the 2001 anthrax scare to forever brand Steven Hatfill, has there been a less precise and more problematically undefined term. The made-up term “person of interest” was not and is not a term to which a legal disability is attached. But, in the new scheme sought by the Bush administration, a person “appropriately suspected” of being “related to terrorism” could be denied his constitutionally guaranteed right to keep and bear arms, based on nothing more than an unelected federal employee deciding in secret he fits such a description.

The legal and policy deficiencies with the Gonzales-Lautenberg bill continue downward from that inauspicious start.

The attorney general need never reveal to the person denied the ability to purchase a firearm precisely why he or she was so treated. At most, the attorney general might — if later sued — be forced to reveal in summary form why he or she reached their conclusion. And even if the court hearing a challenge to a denial demanded to inspect the true reasons, the legislation — in yet another unprecedented provision — explicitly prohibits the judge from relying on that information for his or her ruling for or against the government.

Simply put, this legislation is patently unnecessary and deeply troubling, and the NRA and others are right in strongly opposing it. Allowing it to become law will cause nothing but problems. For an attorney general desperately looking for friends in all the wrong places, however, such concerns appear to count for little.

Bob Barr is a former Republican member of the U.S. House of Representatives from Georgia and a former U.S. attorney there.

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