Don't Take Your Guns to Town

Will Attorney General Eric Holder respect the Second Amendment?


"As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne." That was Democratic presidential candidate Barack Obama on June 26, 2008, responding to the Supreme Court's landmark decision in District of Columbia v. Heller, which struck down Washington, DC's draconian handgun ban and held that the Second Amendment protects an individual right to keep and bear arms—not a collective one.

"I have always believed that the Second Amendment protects the right of individuals," Obama went on, "but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."

While it wasn't exactly a ringing endorsement of the decision, Obama's statement was an improvement over his previous equivocations. But that line about Chicago and Cheyenne definitely stood out. Chicago, after all, has a gun ban in place that's just as constitutionally dubious as the one struck down in Heller. Indeed, Alan Gura, the attorney who successfully argued Heller before the Court, is now working on the challenge to the Windy City law.

So last week's announcement that President-elect Obama has tapped outspoken gun control advocate Eric Holder to serve as his attorney general should come as something less than a complete shock. Holder, who served as deputy attorney general under President Bill Clinton and as acting attorney general under President George W. Bush (a position he held until John Ashcroft was confirmed), has pushed for sweeping and restrictive gun control measures throughout his career while also endorsing the now-discredited collective rights interpretation of the Second Amendment. Obama's selection of Holder raises some serious concerns about his administration's commitment to upholding the entire Bill of Rights.

In the aftermath of the 9/11 attacks, for instance, Holder took to the pages of The Washington Post, where he played on the public's newfound fear of terrorism to lobby for additional gun show regulations. But as National Review's Jim Geraghty recently pointed out, of the two "terrorists" that Holder claimed were stalking America's gun show circuit, one was eventually acquitted of supplying guns to terrorists (though not of the separate charge of weapons smuggling), while the other, a man named Ali Boumelhem, didn't buy so much as a camouflage vest at a gun show. Since he had a felony record he let his brother do the shopping. In Holder's mind, that's a "loophole" that needs closing, but as Geraghty notes, "background checks like the one Holder was calling for would not have stopped [it], since the straw purchaser (the surrogate for the real buyer) is chosen because he has a clean record." Unless Holder wants to forbid gun sales to people with disreputable family members or friends, it's hard to imagine how any law could prevent this situation.

More recently, Holder was one of thirteen former Justice Department officials to sign an amicus brief on behalf of the D.C. government in the Heller case. That document, which endorsed restrictive gun control measures and cited rare and sensational events like the Columbine and Virginia Tech school shootings as evidence of "the deadly toll that firearms exact," also made the case for the collective rights interpretation that has now been rejected by both the Supreme Court and leading liberal legal scholars.

What does all this mean for Eric Holder's Department of Justice? Nothing good, says Second Amendment scholar and Independence Institute Research Director David Kopel. As Kopel told me via email, under the leadership of Attorney General Janet Reno and Deputy Attorney General Eric Holder, "the DOJ used the U.S. Attorneys offices for the aggressive prosecution of gun owners and sellers, often on flimsy charges. We may expect many more such prosecutions under Holder." Moreover, Holder's turf now includes the Bureau of Alcohol, Tobacco, Firearms & Explosives, which was transferred from the Treasury Department to the Justice Department after 9/11. That's one tool that Reno didn't have in her kit. "Now that the Bureau is part of DOJ," Kopel explained, "Attorney General Holder will have great power to force the imposition of onerous new regulations on firearms sales, on firearms stores, and on manufacturers."

Attorney General John Ashcroft, of course, famously attacked critics of the government's anti-terrorism policies for chasing "phantoms of lost liberty" and giving "ammunition to America's enemies." Let's hope that Second Amendment supporters won't be chasing as many "phantoms" once Eric Holder inherits the Bush administration's sweeping law enforcement powers.

Damon W. Root is an associate editor at reason.