March 2002

As the new congressional session gets into gear, a freshly invigorated gun control movement is preparing to act. Armed with a few questionable studies, some acid-tongued rhetoric, and vague allusions to the War on Terrorism, the anti-gun lobby is expected to hammer away relentlessly at the capital’s most prominent Second Amendment stalwart, Attorney General John Ashcroft. The former Missouri senator should find their tactics familiar: He developed a similar strategy in his own quest for expanded powers against terrorism last fall, and it appears that his very success in that campaign will serve as a road map for gun control.

Give the gun control lobby credit for adopting a model that worked. Ashcroft’s success in bulldozing the USA PATRIOT Act through the House and Senate was nothing short of a political rout. Even in the days immediately following September 11, many Americans were concerned that an expansion of federal power would come at the expense of civil liberties. An unlikely coalition that included the American Civil Liberties Union and Phyllis Schlafly’s conservative Eagle Forum called for careful deliberation. A band of Senate Democrats, led by Judiciary Committee Chairman Patrick Leahy (D-Vt.), promised to deliver just that. By early December, however, Ashcroft had crushed his opposition. Here are the hard lessons his foes learned in that battle -- and are already using against him to pursue their own interests.

Exhibit 1 is the "Use NICS in Terrorist Investigations Act," introduced in December by anti-gun senators including Chuck Schumer (D-N.Y.) and Ted Kennedy (D-Mass.). The measure would force the Justice Department to maintain the records it generates when conducting federally mandated background checks on gun purchasers (the National Instant Criminal Background Check System). Ashcroft has steadfastly refused to use NICS, noting correctly that the records were intended to be destroyed lest they become a de facto national gun registry. But gun controllers argue this policy doesn’t even make sense in normal times, and anyway, just look at the World Trade Center! They say federal investigators must preserve and pore over the records that are supposed to be destroyed once a buyer is approved. That way, dutiful snoops can see if any of the hundreds of alien detainees in custody have ever purchased a firearm.

Despite the timely nod to last fall’s attacks, the same senators have in fact been trying to use NICS in criminal investigations for years. Take a peek at Schumer and Kennedy’s proposed legislation. Section 3 is titled "Gun Sale Anti-Fraud and Privacy Protection." It bears a striking resemblance to the "Gun-Sale Anti-Fraud and Privacy Protection Act" the senators proposed in July. Both bills propose to protect Americans’ privacy by making sure the federal government keeps track of how many guns they buy.

Who else has had the gall to rehash old pet projects under the guise of the War on Terrorism? John Ashcroft. In fact, he delivered a masterstroke in this regard. For decades federal law enforcement officials had been clamoring -- unsuccessfully -- for more surveillance, interrogation, and incarceration powers. Enter Osama bin Laden. Now, call it the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001," and you’re in business. How effective was Ashcroft’s strategy? In November, The Chicago Tribune quoted an exasperated Sen. Russ Feingold (D-Wis.), the only senator to vote against the new powers: "The naming of the bill ...is the kind of cynical game played to intimidate people into not only not voting against it, but not debating it or questioning it." People who hate guns understand how powerful the anti-terrorism angle can be, and they are acting accordingly.

But Schumer and his cohorts have done far more than copy Ashcroft’s "cynical game." They have aped his style as well. During the early days of his campaign for expanded power, the attorney general regularly shrugged off a seemingly important question posed by members of the Judiciary Committee: Would such powers have enabled the Justice Department to stop the September 11 attacks? Rather than wrestle with these inquiries, Ashcroft simply admitted that he didn’t know, stressing instead that there wasn’t any time to ruminate on such trifles. Every minute his department went without the far-reaching new powers was another minute the terrorists had "a comparative advantage."

Fast forward to December 13. In a press release pressuring Ashcroft to keep and use the NICS records, Schumer argued that "every day the FBI is barred from using this information, the investigatory trail grows colder." But is that true? NICS does not keep records on people who purchase box cutters. Accused shoe bomber Richard Reid presumably secured his plastic explosives through someone other than a federally licensed gun dealer. The anti-gun movement has been citing a few studies done by hard-line disarmers at the Violence Policy Center and Americans for Gun Safety. These supposedly link terrorists to guns bought in the U.S., but the fact remains that so far all the damage has been done by airborne goons with ordinary household implements, not firearms. But Schumer, like Ashcroft before him, has no time for such quibbles.

What the anti-gun forces do have time for is overblown rhetoric -- which is perhaps the most important page they have copied from Ashcroft’s political playbook. The attorney general certainly set a blistering precedent. Throughout his struggle last fall, he regularly chided legislators, accusing them of stalling and thus hampering his ability to chase down threats to the nation. The rhetoric reached a crescendo in late November and early December, when the Senate Judiciary Committee scheduled four separate hearings to question Ashcroft about the administration’s proposal for military tribunals, his own refusal to release any information on the hundreds of people in custody, and maneuvers such as monitoring conversations between detainees and their lawyers.

At least that was the plan. In fact, the early hearings resembled junior varsity matches before the big game. Instead of Chairman Leahy vs. Ashcroft, the eager chattering classes got lower-ranking committee members trading flaccid barbs with the attorney general’s lieutenants. When the big boys finally took the field on December 6, everyone in Washington tuned in to see the fireworks, only to see Ashcroft turn the tables and deliver a memorable drubbing.

Buoyed by public opinion polls that showed overwhelming support for his policies, Ashcroft went on the offensive. "To those who scare peace-loving people with phantoms of lost liberty," he said in his opening statement, "my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve." On the issue of subjecting suspected terrorists to tribunals, he simply cracked wise: "Are we supposed to read them their Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV?" Fully aware of the same opinion polls bolstering Ashcroft, Leahy and the rest of the committee wilted. The only concessions Feingold managed to elicit were an assurance that Ashcroft wasn’t referring to committee members in his diatribe and a promise to put a little more thought into the military tribunals.

Live television coverage cut out long before the gavel finally fell on the four-hour hearing, but not before recording a subtle indication that a few of the senators had learned a thing or two from Ashcroft. Instead of nailing him for shredding the Constitution, Kennedy and Schumer scolded him for leaving out the Second Amendment. The morning of the hearing, The New York Times had published an article detailing how Ashcroft had refused FBI requests to open the NICS files to terrorism investigators. Schumer accused the administration of being a "wet noodle" on the issue. Kennedy piled on, and a press release issued after the hearings showed that he smelled blood: The first 10 or so paragraphs deal exclusively with the NICS controversy and -- surprise -- the purported "gun show loophole" that has long been a thorn in the anti-gun crowd’s side. Concerns about tribunals and due process violations are relegated to the end.

The next day, Schumer, Kennedy, and friends submitted their NICS proposal to the Senate, recasting it as a tool in the fight against terrorism. Since then, gun prohibitionists around the country have tried their best to match Ashcroft’s tough-guy rhetoric. "Ashcroft guns to seal image as far-right nut," snarled the headline of an editorial in the Atlanta Journal-Constitution. The Boston Globe’s Thomas Oliphant wrote an op-ed citing "Ashcroft’s Gun-Coddling Hypocrisy." A piece in USA Today equaled Ashcroft’s own diatribe at the December 6 hearings: "When the next act of terrorism involving conventional weapons occurs, here or abroad, the gun lobby might just be an accessory."

Under ordinary circumstances, Ashcroft could easily shrug off this new clamor by arguing that the proposed measures are constitutionally suspect and would have done nothing to stop the September 11 attacks. Or he could make the point that the anti-gun crowd is dressing tired old measures in anti-terror clothing. He might even gain some sympathy by complaining that the personal attacks levied against him are way out of line. And he would be right.

Unfortunately, the gun control lobby learned its new tactics by watching the master himself pull these same stunts just a few months ago.

Sam MacDonald is a Washington-based journalist and former Reason Washington Editor.

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