POP! (Piling On the Post

POP! (Piling On the Post – I apologize for piling on, but even after InstaPundit and Volokh there is still something to say about yesterday’s unusually dumb editorial in which the Washington Post took aim at Ashcroft but wound up shooting itself in the foot.

The Post blamed Ashcroft personally for propounding a view — that the Second Amendment protects an individual, not a state, right — that is in fact so widely shared among even liberal law professors that it has come to be known as the “Standard Model.” But never mind. There’s nothing new or noteworthy about using the Attorney General as a convenient villain and vilifying him over this or that. What was striking about the edit is that the Post could not comprehend Ashcroft’s willingness to enforce a law he opposes.

Mr. Ashcroft has insisted that he will defend this country’s gun laws, even as he has contended that the Second Amendment to the Constitution creates an individual right to own a gun — subject only to reasonable regulation to keep guns from criminals

The Justice Department has, so far, gotten around this problem by playing legal games. The D.C. Court of Appeals, it has argued in several cases, has held that there is no individual right to own a gun. And while the attorney general may disagree with this holding, it is binding law in Washington; hence, gun prosecutions here may proceed. But it is hard to see why the government should be locking people up for conduct it has plainly said — before the U.S. Supreme Court, no less — is constitutionally protected.

Our point is simply that the government cannot both embrace an individual rights view of the Second Amendment and prosecute people for wielding guns.

The Post‘s editors (there are editors there, aren’t there?) seem to have forgotten that Ashcroft’s willingness to enforce laws with which he disagrees was at the very heart of the battle over his confirmation as Attorney General. Democrats feared he wouldn’t, and all but 8 of them voted against him. He swore that he would. And now that he has — and not for the first time (defending racial preferences in Adarand also comes to mind) — the Post can only regard his behavior as “playing legal games.”

Given the editors’ obviously short memories, it would have been helpful for them to consult their own paper’s back issues. If they had done so they would have found the following description of the opening of nominee Ashcroft’s confirmation hearing before the Senate Judiciary Committee:

“I understand that being attorney general means enforcing laws as they are written, not enforcing my own personal preference,” the former senator said in his opening statement to colleagues on the committee where he served until a few weeks ago. “It means advancing the national interest, not advocating my personal interest.”

“When I swear to uphold the law,” Ashcroft declared later, raising his right hand, “I will keep my oath, so help me God. . . .”

“. . . I well understand that the role of the attorney general is to enforce the law as it is, not as I would have it. . . . I will follow the law in this area [abortion] and in all other areas.”

Imagine that. Someone in Washington actually doing what he said he would do. You might have thought the Post would find that newsworthy.

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