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Column: Did You Think John Ashcroft Wasn't Serious About Guns?

by P.M. Carpenter

Mr. Carpenter is a writer and doctoral candidate in American history at the University of Illinois.

Bush II's sometimes-we-mean-it-sometimes-we-don't"strict constructionists" are at it again and this time, it so happens, they don't mean it. One shouldn't need to keep score when it comes to tracking ideological consistency--which is presumably inherent in terms such as"strict" constructionism--but when a dog of ultraconservatism is chasing a rabbit of shinier goals, allegiance to one consistency is easily discarded in favor of allegiance to another.

The dashing dog, as one might expect, is Attorney General John Ashcroft, whose Senate confirmation in February, 2001 was touted by one conservative group as"a warmup for when George W. Bush nominates a strict constructionist to the Supreme Court." A hefty serving of Ashcroft's much-vaunted strict constructionism soon hit the plate, for example, when before the Senate he defended W.'s plan for military tribunals which erased quaint constitutional niceties such as presumption of innocence and a defendant's right to choose counsel. Those among the"voices of negativism" who didn't like it, said the A.G. above a chorus of God Bless America, could shove it.

The rabbit is the reinterpretation of the Second Amendment as understood by Supreme Courts, Justice Departments, and legal scholars since 1939. It was in that year, in United States v. Miller, that the high Court frowned on folks toting around sawed-off shotguns and decided Congress had the constitutional right to do something about it. Weenies, all nine of 'em; probably the products of day care and insufficient school prayer.

The Court not uncuriously ruled that the Second Amendment protected gun-ownership rights only in"some reasonable relationship to the preservation of efficiency of a well-regulated militia." This indeed was scantly curious for the simple reason that the Constitution states"the right of the people to keep and bear arms" stands in firm relationship to the necessity of"a well-regulated militia." Holy Mary Mother of God, what a poser.

But a year ago in a letter to the National Rifle Association our deconstructionist strict constructionist Attorney General wrote that he"believe[d] the amendment's plain meaning and original intent" were contrary to the express law of the land generally since 1791 and specifically since U.S. v. Miller. That was the opening shot across the bow of reason which everybody knew would be pursued, in time, more officially. And, again as everybody knows, he has now done just that. Say what you like about the lad, but John never disappoints.

Last Monday, May 6, Ashcroft filed briefs with the Supreme Court through Solicitor General Ted Olson that set out to correct the typically sloppy writing by the framers of the Constitution."The Second Amendment more broadly protects the rights of individuals," he waxed legally,"including persons who are not members of any militia or engaged in active military service or training."

What was Ashcroft's specific thinking as to why Jim Madison & Associates bothered to mention militias? Dear friend, your guess is as good as mine, for John, Ted, and (wouldn't it be nice?) secretary Alice put this" current position of the United States" quite literally in a footnote. Nevertheless Olson instructed that we, by-God, should already know what Ashcroft's thinking was. When declining discussion of the footnoted upheaval of decades-old law, he said, simply,"The briefs speak for themselves." Oh. Got it.

No one should be surprised at the manner in which this administration officially introduced its odd version of strict constructionism on the right of nearly anyone to own guns--which, incidentally, in 1999 alone took half as many American lives as were lost in Vietnam. Bush II's penchant for back-dooring its more beloved policies into the limelight is not only not new, it's routine. The White House's most fundamental policy is to speechify about this and that policy to gain the confidence of the unsuspecting, then quietly zip off an executive order or dispatch some memo-leaking factotum to undo what the public believed was undoable. We've witnessed the ploy time and again, on everything from environmental regulations to ... you name it.

Though unsurprising, why the administration opted for this tired tactic on the issue of guns, of all things, is an open question. The change in 60-year-old policy was coming and everyone knew it was coming. When you get a gazillion dollars in NRA campaign finance it's considered sporting to return the favor. So why not just be obvious about the obvious? Far from inconceivable, of course, is that Karl Rove is now happily engaged in surveying and focus-grouping public reaction to determine the next step's timing.

The optional guess is this: For Bush II the tactic was but pathological. Short of"throw[ing] red meat to the gun lobby," as one gun-control advocate characterized it, there was no good reason for back-dooring the new official stance. And that's likely all the footnote will amount to tactically for now, since in neither case up for appeal did the government urge a Supreme Court review. Still, Bush and Justice Department minions eventually will plunge ahead and do in court more brazenly what they damn well want to do anyway. The public's welfare doesn't matter. The administration may have a debt to repay, but in this instance, for this crowd, it's an eminently digestible one.

In short, we've only witnessed another manifestation of Up-Yours Ideology, pathologically grounded in entitlement and the mere jolly-good fun of game playing. That's my guess.

Fifth Columnist is published weekly by History News Network and buzzflash.com.