Change in Command

Second Amendment rights are very important to tens of millions of Americans. Many of those Americans are apprehensive about the Obama administration’s intentions regarding those rights. Such apprehensions led to a tremendous increase in firearms sales in the months before and after the election.

On the one hand, candidate Obama repeatedly proclaimed that he considered the Second Amendment to be an individual right. On the other hand, he claimed that the Washington, D.C. handgun ban (which the Supreme Court declared to be unconstitutional last June, in District of Columbia v. Heller) was a reasonable, common-sense restriction on that right.

As a candidate for U.S. Senate in 2004, Obama proposed a national ban on carrying concealed handguns. Such a ban would take away a right that millions of law-abiding Americans currently exercise — to carry a handgun for lawful protection, after passing a background check and a safety class. In the U.S. Senate and the Illinois Senate, Obama compiled a near-perfect record in voting for bans on a wide variety of guns, for lawsuits against gun manufacturers and gun stores, and for a host of other restrictions on gun owners. He even proposed outlawing all gun stores within five miles of a school or park — which would eliminate gun stores from almost all of the inhabited portions of the United States.

Thus, the Second Amendment right which Obama claims to support appears to be one of vanishingly small proportions.

Second Amendment supporters are also concerned about his choices to put Joe Biden, Hillary Clinton, Rahm Emmanuel, and Eric Holder into key positions in his administration—for every one of them has a solid record as an advocate of highly restrictive gun control.

At best, Second Amendment supporters can hope that the Obama administration will concentrate on other issues. At worst, the Obama administration may push for repressive and extreme gun controls with the same vigor as did the Clinton administration, but with considerably more political skill.

Beware the rahm

Barack Obama’s children may be getting a new puppy, but American gun owners will soon be the targets of an attack dog named Rahm Emanuel.

On Jan. 20, this fierce enemy of the Second Amendment will become the chief of staff to the president of the United States.

The White House chief of staff is known as the “second most powerful man in Washington” and even the “co-president.” He decides who gets to meet with the president, supervises the entire White House staff, advises the commander-in-chief on policy and negotiates with Congress, interest groups and the rest of the executive branch. If the president is not a hands-on manager—and Barack Obama has little executive experience other than in heading his own presidential campaign—the chief of staff can be like a de facto prime minister.

Regardless of exactly how the Obama White House is organized, Emanuel will be one of the most powerful men in the world. Nobody disputes that Emanuel is extremely intelligent, ruthlessly partisan and brilliantly shrewd in his pursuit of power. Unfortunately, that power has often been used to the detriment of the Constitution. When Bill Clinton wanted to target the Second Amendment, he made Emanuel his gun czar.

Time magazine noted Emanuel’s reputation as a “profane, hyperactive attack dog.” His tactics and style are fully consistent with the world of Chicago machine politics, from which both Obama and he sprung.

Emanuel served as a top fundraiser for President Clinton, helping to raise a then-record $72 million for Clinton. Rolling Stone magazine reported that at a dinner celebrating Clinton’s election win, Emanuel began reeling off the names of his enemies. As he said each name, he stabbed a steak knife into the table. “Dead! Dead! Dead!” he screamed as he said each enemy’s name.

“When he was done, the table looked like a lunar landscape,” one of the other diners remembered. “It was like something out of The Godfather. But that’s Rahm for you.”

Emanuel’s first big foray into politics was serving as the major fundraiser for the 1980 campaign of congressional candidate David Robinson of Illinois, who was challenging incumbent Republican Paul Findley. Both candidates were A-rated by NRA.

Strangely, Handgun Control, Inc. (today, the Brady Campaign) entered the race by running anti-Findley TV commercials with actors purporting to be from Findley’s district, even though they were not. The commercials could have taught Emanuel a lesson about the veracity of the gun-ban lobby but, as we shall see, the lesson went unlearned.

In Chicago, Emanuel became a close friend of David Axelrod, the machine politics master who would become the chief strategist for the Obama presidential campaign.

Under Clinton, Emanuel was appointed assistant to the president for political affairs, and was later promoted to senior advisor to the president for policy and strategy. He was the White House point man for the offensive against the Second Amendment.

In 1998, Clinton forbade the import of 58 types of firearms and their accessories. At the time, Emanuel proudly announced, “We're bending the law as far as we can to ban an entirely new class of guns.”

Emanuel defended the ban on The NewsHour with Jim Lehrer, repeatedly claiming that the banned guns were “military weapons, not sporting weapons.”

“Those weapons were designed for one purpose—military—and they don't belong on our streets,” he insisted.

Emanuel asserted that Clinton had banned “the AK-47,” which was pure nonsense. The AK-47, which is a fully automatic rifle, was not covered by the import ban. Indeed, not one of the guns banned was an automatic, nor were any of the guns manufactured primarily for military use.

All the banned guns were used in target competitions. Some had names like “Hunter” or “Sporter.” So how did Clinton and Emanuel get around the 1986 federal law requiring that imports must be allowed if the gun is “particularly suitable for or readily adaptable to sporting purposes”?

Emanuel argued that it was permissible to ban the guns because comments from hunting guides showed that the guns were rarely recommended for hunting trips. As if the only gun that is a “sporting” gun is one used by people who can afford to take trips with a professional guide.

Emanuel further contended that the guns should be banned because they “accept rounds in the 20, 30, 40, in some cases 100 rounds at a case [sic].” Of course, every gun that accepts a detachable magazine can accept a detachable magazine of any size. So Emanuel’s theory would actually set the stage for a ban on every gun that uses a detachable magazine.

Emanuel was also the lead man in Clinton’s successful effort to require that trigger locks be sold with handguns—even if the buyer already owned a gun safe.

In February 1998, the “waiting period” of the Brady Act expired. When passing the Brady Act in 1993, Congress had set the expiration date, by which time the National Instant Check System (NICS) would be functioning, so there would be no need to delay gun purchases in order to conduct background checks.

Yet in 1998, Clinton announced that one of his “top priorities” would be a permanent waiting period on handgun sales. Emanuel declared that the waiting period “is very, very important.”

Promoting the Clinton plan on Meet the Press on June 14, 1998, Emanuel maintained that “the five-day waiting period was established for a cooling-off period for crimes of passion.”

However, that was completely untrue. Congress had rejected the notion of a “cooling-off period.” The waiting period was intended to operate only until the NICS was in place. Even Clinton’s Assistant Attorney General Eleanor Acheson had admitted to Congress, in testimony on Sept. 30, 1993, that there were no statistics to indicate that handguns were frequently used in crimes within a few days of purchase.

Yet Emanuel asserted: “Based on police research, 20 percent of the guns purchased that are used in murder are purchased within the week of the murder.”

The NRA called Emanuel’s office to find out exactly where that “factoid” had come from. Turns out, it was not “police research” at all. The phony statistic had come from what Emanuel’s office called “briefing materials provided by Handgun Control, Inc.”

The NRA called HCI to track down the source of the factoid. But despite repeated requests, HCI never supplied any source.

In October 1998, Emanuel resigned from the White House. In 2000, Clinton appointed Emanuel to the Board of Directors for the Federal Home Loan Mortgage Corporation (“Freddie Mac”). He earned an annual salary of $231,655. We now know that during that time, Freddie Mac was sowing the seeds of the current financial crisis, encouraging banks to make home loans to buyers who could not repay them. Yet Freddie Mac was able to protect itself from reform by using shady accounting to cover up its problems. According to the Securities and Exchange Commission, Freddie Mac duped investors by making false reports of billions of dollars of profits from 2000 to 2002, while Emanuel was a director.

The Office of Federal Housing Enterprise Oversight (OFHEO) later determined that the Freddie Mac board on which Emanuel served “failed in its duty to follow up on matters brought to its attention.”

After resigning from the Freddie Mac board, Emanuel ran for a U.S. House of Representatives seat from Chicago and was elected in 2002.

In the House, Emanuel quickly earned a perfect “F” rating from the NRA Political Victory Fund (PVF). He repeatedly voted against the Protection of Lawful Commerce in Firearms Act, which protected gun stores and manufacturers from abusive lawsuits by politicians such as Chicago Mayor Richard Daley.

He announced his support for outlawing the sale of ordinary handguns and allowing only the sale of so-called “smart guns”—even though “smart gun” technology is as yet far too unreliable for a gun that is needed for self-defense.

Emanuel cosponsored H.R. 1312, a bill to impose a permanent ban on so-called “assault weapons.” The bill was even worse than the ban that had been enacted by Congress in 1994, and which expired in 2004. The new ban would have allowed administrative action, without congressional approval, to outlaw the domestic sale or manufacture of even more guns.

Emanuel’s prodigious talents and ferocity were quickly recognized by other House Democrats. By his third term in the House, he had risen to the fourth-highest position among the Democratic leadership, as chair of the Democratic Caucus. He also snared the position of head of the Democratic Congressional Campaign Committee (DCCC) for the 2006 House elections.

There, he acted pragmatically. In districts where the pro-Second Amendment vote was strongest, Emanuel often recruited pro-Second Amendment Democratic candidates. Although the House Democratic leadership, including Nancy Pelosi and Emanuel himself, was passionately anti-gun, the DCCC did not impose an anti-gun litmus test since electing the largest possible number of Democrats was their singular goal.

“They've got to reflect their districts,” Emanuel acknowledged. His strategy worked, and pro-gun Democrats provided the margin for the Democratic takeover of the House in the 2006 elections.

So what will Chief of Staff Rahm Emanuel do in the White House?

Well, we can be sure that his 2006 approach to gun issues did not spring from a newfound affection for the Second Amendment. It was simply a recognition of the political strength of the National Rifle Association, particularly leading up to congressional elections.

Consequently, the stronger the NRA remains, the greater the chance of deterring Emanuel from encouraging a major anti-gun push in Congress.

Political calculations can change, especially if there is a terrorist attack or other infamous crime. As Emanuel told The New York Times in early November, “You don't ever want a crisis to go to waste; it’s an opportunity to do important things that you would otherwise avoid.”

Pro-rights forces need to be ready now, and not wait to mobilize until it is too late.

Meanwhile, as Emanuel well knows, the president has great authority to act unilaterally to restrict civil rights—particularly if the president is willing to “bend” the law.

Will Rahm Emanuel be able to stab a knife into the Constitution and scream that the Second Amendment is “Dead! Dead! Dead!”?

That answer depends mainly on whether American gun owners and other friends of the Constitution become active, and stay active, for the next four years.

America's 1st Freedom, Feb. 2009

President-elect Barack Obama’s nomination of Eric Holder for attorney general is terrible news for the Second Amendment—and for the rule of law.

In the Clinton administration, Eric Holder served as deputy attorney general—the second highest-ranking position in the Department of Justice (DOJ)—under the infamous Janet Reno. Holder’s performance then and afterwards showed that he was a perfect fit for a department run by one of the worst, most lawless attorneys general in American history.

In early 2008, as the Supreme Court was getting ready to hear the Heller Second Amendment case, Holder joined Reno and several other former officials from the Clinton Department of Justice in signing an amicus (“friend of the court”) brief. The brief was filed in support of the District of Columbia’s ban on all handguns, and ban on the use of any firearm for self-defense in the home. (The brief is available at www.nraila.org/heller/.)

The Reno-Holder brief argued that the Second Amendment is a “collective” right, not an individual one, and asserted that belief in the collective right had been the consistent policy of the U.S. Department of Justice since the Franklin Roosevelt administration. A brief filed by some other former attorneys general and DOJ officials took issue with the Reno-Holder characterization of DOJ’s historical position. 

But the Reno-Holder brief did accurately express the policy of the Department of Justice when Janet Reno was attorney general and Eric Holder was deputy attorney general. At the 2000 oral argument before the Fifth Circuit Court of Appeals in United States v. Emerson, the assistant U.S. attorney followed the Reno-Holder line, and told the judges that the Second Amendment was no barrier to gun confiscation, not even of the confiscation of guns from on-duty National Guardsmen!

The Supreme Court’s decision in District of Columbia v. Heller unanimously rejected the Reno-Holder theory. A majority of five justices, led by Justice Antonin Scalia, recognized that the Second Amendment is an ordinary individual right, similar to the First Amendment rights of freedom of speech and free exercise of religion. The four dissenters, led by Justice John Paul Stevens, agreed that the Second Amendment protects an individual right, but argued that it applies only to people serving in official state militias.

Notably, not one justice agreed with the Reno-Holder assertion that the Second Amendment is a “collective right,” which belongs to nobody at all. The “collective right” version of the Second Amendment is as self-evidently absurd as the notion of “collective property” in a Communist dictatorship; supposedly the property right belongs to everyone “collectively,” but in practice it belongs only to the government, and no person has any rights.

As deputy attorney general, Holder worked hard to restrict gun ownership. He advocated federal licensing of handgun owners, a three-day waiting period on handgun sales (even though the National Instant Check System does its work in a few minutes to a few hours), rationing handgun sales to no more than one per month, banning possession of handguns and so-called “assault weapons” (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration and mandatory prison sentences for trivial offenses (for example, giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday).

He also promoted the factoid that, “Every day that goes by, about 12, 13 or more children in this country die from gun violence”—a statistic that is true only if one counts 18-year-old gangsters who shoot each other as “children.” Gangsters murdering each other is a serious problem, but it is less than honest to describe the problem as involving “children”—as if the gangsters were innocents, rather than criminals who deliberately put themselves in harm’s way.

After the 9/11 attacks, Holder penned a Washington Post op-ed titled “Keeping Guns Away From Terrorists,” arguing that a new law should give “the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale.” In other words, if you sell your brother-in-law a gun, both of you and the gun ought to be entered into a federal gun registration database.

As Florida State University professor Gary Kleck has observed, none of the purported purposes of gun registration make sense. Every stated objective (e.g., keeping guns away from criminals or terrorists) can be served just as well by other measures. The only thing that gun registration accomplishes and that other measures do not is making gun confiscation much easier.

Holder also argued that prospective gun buyers should be checked against the secret “watch lists” compiled by various government entities. That is, if a federal official puts you on a secret list, you should automatically lose your right to arms—with no due process even if you can prove that you are entirely law-abiding.

In 2007, the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional. (That was the case that D.C. appealed and lost in the Supreme Court in 2008.) Holder complained that the Circuit Court decision “opens the door to more people having more access to guns and putting guns on the streets.” So to Holder, a decision allowing guns in the home means “putting guns on the streets,” and allowing people to have “access to guns” is bad in itself.

As attorney general, Holder will have many opportunities to implement his anti-freedom beliefs. The attorney general is the boss of the U.S. Attorney’s Offices all over the country; these attorneys are the front-line legal enforcers of the federal criminal laws governing guns, and of the regulations imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). When Reno and Holder ran the DOJ, the U.S. Attorney’s Offices aggressively prosecuted gun owners and sellers, often on flimsy charges. We can likely expect many more such prosecutions under Holder.

In addition, the attorney general determines the official legal position of the U.S. government in everything from a trial court in Guam to arguments before the U.S. Supreme Court. Under the Bush administration, the DOJ attorneys have acknowledged the Second Amendment’s individual right, and they have avoided taking the most extreme positions to limit that right.

For example, in the aftermath of Heller, the U.S. Attorneys fight to uphold the federal laws that ban certain “prohibited persons” (e.g., convicted felons, persons dishonorably discharged from the military) from possessing guns. But the attorneys do not tell courts that gun restrictions must be upheld whenever there is a “rational basis” for the restrictions. In practice, the government wins well over 99 percent of cases decided under a “rational basis” standard, and Attorney General Michael Mukasey recognizes that rational basis is much too weak a standard for the protection of the explicit constitutional right to arms.

Attorney General Holder could change that approach overnight. He could use DOJ attorneys to try to convince courts to adopt interpretive principles that would make the Second Amendment close to a nullity.

Right now, there are several cases in lower federal courts, many of them led by the National Rifle Association, which address the question of whether the Second Amendment is a limit only on the federal government or whether it also applies to state and local governments. Hopefully, one of these cases will reach the Supreme Court. As these cases move along, the Holder DOJ will use every available resource to argue against state and local enforcement of the Second Amendment.

As aggressive as Holder is with gun owners, he is not always a tough prosecutor. Before being elevated to Janet Reno’s right hand, he ran the U.S. Attorney’s Office for the District of Columbia. He was zealous in enforcing criminal penalties for violating the D.C. handgun ban. But in all the years that he ran the D.C. office, that office never initiated a single public corruption case against a D.C. official. Sworn to enforce federal anti-corruption laws in a city with one of the most notoriously corrupt governments in the country, Holder displayed his political acumen by letting D.C. corruption run rampant.

As deputy attorney general, Holder played a key role in President Clinton’s pardon of terrorist financier Marc Rich. Rich had fled to Switzerland in 1983 to avoid prosecution for tax evasion and for arranging oil deals for the terrorist dictatorship in Iran while it was holding Americans hostage.

But his wife made extravagant donations to the Clinton Library and to the Democratic Party. Rich received a presidential pardon on Clinton’s last day in office. In engineering the Rich pardon, Holder carefully maneuvered to keep the regular DOJ attorneys from reviewing the pardon application. A 2003 report by the U.S. House Government Reform Committee found that Holder abused the public trust in regard to the Rich pardon.

As much as Janet Reno was an enemy of the Second Amendment, she lacked one crucial tool that will now belong to Holder. Ever since the creation of the Bureau of Alcohol, Tobacco and Firearms (BATF) during the Nixon administration, it had been part of the Department of the Treasury. This is because the Bureau’s predecessor had been put in Treasury during the days when federal controls on alcohol, tobacco and firearms were based only on federal tax power. In general, Treasury secretaries spent their time thinking about things like interest rates, and they left BATF alone, except in the relatively rare occasions when the White House wanted BATF to do something.

But after 9/11, federal criminal justice was reorganized, and BATF was transferred from the Treasury Department to the Justice Department. As part of the reorganization, BATF had “Explosives” added to its name.

Treasury secretaries are not inclined to think much about federal gun policies, but attorneys general certainly are. Even under the best of times, BATFE’s leadership (although not necessarily all of its agents) has had a troubled relationship with the Second Amendment, and under Holder, that relationship will likely grow much, much worse.

Like other federal regulatory agencies, BATFE has great powers to impose regulations without asking Congress for permission. Courts tend to be highly deferential to agency decisions, and only rarely are agency regulations overturned.

The Holder BATFE will have vast powers to expand federal bans on firearm imports, and to put new restrictions on federally licensed firearm dealers and manufacturers. Ominously, BATFE also has the power to re-classify some guns as subject to the National Firearms Act (NFA)—leveling the same restrictions that currently apply to the purchase or possession of machine guns and sound reducers: a fingerprint-based application and registration that takes months, plus heavy federal taxes for the mere privilege of possession.

Given Holder’s record, you might think that he’s against guns in all circumstances. But there was one notorious case in which his purported concern “for the children” led to some very aggressive use of firearms. Holder was deeply involved in the gunpoint, nighttime kidnapping of Elian Gonzalez in 2000. Elian and his mother had fled Fidel Castro’s tyranny in Cuba, and the mother had died during the escape. Elian was welcomed and sheltered by his relatives in Florida, but Castro wanted him back, and Reno and Holder were happy to oblige.

Holder had publicly promised that there would be no nighttime home invasion. After the nighttime invasion occurred, he claimed that he had kept his promise because the attack had actually taken place an hour before dawn.

According to Reno, the pretext for the paramilitary invasion of the 6-year-old’s home was that someone in his family might have been licensed to carry a handgun under Florida law. Although a Pulitzer Prize-winning photo showed a federal agent dressed like a soldier and pointing a machine gun at the man who was holding the terrified child, Holder actually claimed that Gonzalez “was not taken at the point of a gun” and that the federal agents whom Holder had sent to capture Gonzalez had acted “very sensitively.”

If Holder believes that breaking down a door with a battering ram, pointing submachine guns at children (not just Elian), and yelling “Get down, get down, we’ll shoot” is an example of acting “very sensitively,” his judgment about the responsible use of firearms is grossly insufficient for a cabinet officer who would be in charge of thousands and thousands of armed federal agents, many of them paramilitary agents with machine guns.

Holder’s lack of integrity about the Rich pardon and the Gonzalez abduction would make him a poor choice for any law enforcement position. He is especially unsuited for attorney general—a position that, more than any other in the Cabinet, requires the rectitude to stand up to political pressure from the White House to bend the rule of law.

Additionally, Holder’s relentless hostility to the Second Amendment makes him an awful nominee for chief law enforcement officer of the United States—the man who is supposed to defend the Constitution and protect all the rights of the American people.

Technology

Door shutting for Windows 7 Beta

The clock is ticking for those that want to play around with the Windows 7 beta.

Microsoft is reminding people that they have only until the end of the day on Tuesday (or 11:59 p.m. PST) to start downloading the operating system.

Those who start their download in time have until 9 a.m. PST Thursday to finish the process, Microsoft has said.

The betta fish, the unofficial mascot of the Windows 7 beta.

(Credit: CNET News)

Although the beta version will cease being available to the general public, members of Microsoft's MSDN and TechNet developer programs will continue to have access to the code.

Microsoft CEO Steve Ballmer announced the Windows 7 Beta at the Consumer Electronics Show in January. After a slight hiccup, Microsoft made the code available on January 10.

The software maker has said the next test version of Windows 7 will be a near-final "release candidate" version, although it has not said when to expect that to arrive. Officially Microsoft has said that the final version of Windows 7 will come by the end of January 2010, although the company has been aiming to get it done in time to be on PCs that ship for this year's holiday-shopping season.