Handguns don't kill people, Department of Justice does

Human Events, Jun 4, 1999 by Coulter, Ann

In June of 1997, Tony Leongs, a convicted felon caught with a handgun illegally in his possession, was returned to the streets because the Department of Justice refused to enforce the law. Not the law that prohibits convicted felons from owning guns, though that was the incidental effect.

The unenforced law is Section 3501 of Title 18, enacted two years after the Supreme Court decided Miranda v. Arizona as part of the Omnibus Crime Control Act of 1968.

Section 3501 eviscerated the worst of the Warren Court era pro-criminal decisions. Of the many dumb decisions rendered by the Warren Court, it is improbable that any other single ruling did more to benefit criminals than the rigid exclusionary rule invented by the court in Miranda.

Naturally, therefore, the Clinton Department of Justice has refused to use it.

In the case of the armed felon, United States v. Leong, the defendant was stopped for speeding. With the consent of the defendant, the police searched the car and found a handgun in a plastic holster on the floor behind the driver's seat. Since there were three other passengers in the car, the gun could have belonged to any of them. The cop asked the four who owned the gun and Leong said it was his. He had not been read his Miranda rights first.

Without Leong's admission that the gun was his, there was no case. Section 3501 would have allowed Leong's admission to be used as evidence. So important was Section 3501 to the outcome of the Leong case, that the court ordered the Department of Justice to at least take a position on the law.

Presumably as part of its continuing effort to defend the office of the President, the Department of Justice refused to defend this anti-crime measure. What with there being a felon in the Oval Office, there's no need to start aggressively enforcing the criminal laws now.

Rather, Justice took the position that it would prefer that a convicted felon charged with illegal possession of a firearm go free than to use Section 3501 to get into evidence Leong's admission that the gun was his.

In fact, Clinton's Justice Department has expressly disallowed federal prosecutors from raising Section 3501 as a defense to un-Mirandized confessions. The preposterous rational for this gag rule is that until the Supreme Court overrules Miranda, "the United States is not free to urge the lower courts" to "rely on Section 3501." Of course, if Section 3501 is never raised in the lower courts, there is no earthly way for the Supreme Court to "overrule Miranda."

Section 3501 did muscle its way into a federal court this past year. But no thanks to the branch of government charged with enforcing the laws.

On behalf of the Washington Legal Foundation, law professor Paul Cassell raised Section 3501 in an amicus brief on behalf of the government in a case called United States v. Dickerson.

Charles Dickerson had been involved in seven bank robberies and confessed to the police-they said after they read him his Miranda rights. Dickerson said the police read him his Miranda rights only after he had confessed. For reasons that remain mysterious, the district court credited the word of the bank robber over that of several policemen.

Nonetheless, the court expressly found that Mr Dickerson gave the confession voluntarily, of his own free will. But Mr. Dickerson's voluntary confession was inadmissible under Miranda.

Prof. Cassell argued that the confession was admissible under Section 3501, a federal law on the books, never held unconstitutional. Again, the 4th Circuit Court of Appeals pressed Clinton's Justice Department for an opinion on the law. The Department of Justice proceeded to join forces with a serial bank robber to argue that Section 3501 is unconstitutional, a somewhat unusual posture for the branch of government charged with taking "Care that the Laws be faithfully executed" (U.S. Const., Art.II, 3).

Nonetheless despite the best efforts of Clinton's Department of Justice to undermine the law-the court upheld Section 3501 on Feb. 8, 1999, and the 4th Circuit refused to review the decision in an en banc appeal a few months later.

In refusing to suppress Mr. Dickerson's confession, the court had pointedly noted: "Fortunately, we are a court of law and not politics. Thus, the Department of Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it."

For the Department of Justice to refuse to defend-to say nothing of arguing against-enforcement of a law duly enacted by the United States Congress, it is required to have concluded that no reasonable argument can be made for the law. Not that the law may be unconstitutional or might plausibly, even probably, be held unconstitutional. There must be no reasonable argument that can be marshaled in the law's defense.

In the past few years, for example, the Department of Justice has argued for the constitutionality of such laws as: the Religious Freedom Restoration Act, the Communications Decency Act, the line item veto, the Religious Freedom Restoration Act, and the Brady Act. All were struck down by the Supreme Court.