Wednesday, January 16, 2019

Senate Majority Leader Mitch McConnell

317 Russell Senate Office Building
Washington, DC 20510
Fax: (202) 224-2499

Senator Lindsey Graham

Chairman, Senate Committee on the Judiciary
290 Russell Senate Office Building
Washington, DC 20510
Fax: (202) 224-3808

RE: OPPOSITION TO THE CONFIRMATION OF MR. WILLIAM P. BARR

Dear Senate Leader McConnell and Chairman Graham:

I write you today on behalf of Firearms Policy Coalition (FPC)1 and hundreds
of thousands of law-abiding members and supporters across the United States.

FPC engages in advocacy on a wide variety of important constitutional, legal,

policy, and social issues, including the right to keep and bear arms, free speech, due
process, separation of powers, constitutional limitations on government, and others.
FPC works to safeguard and advance individual liberty through programs including
strategic litigation2 and other legal efforts, direct and grassroots advocacy, research,
education, outreach, and others.

1 FPC is a grassroots, non-partisan, 501(c)4 nonprofit public benefit organization.

FPC’s mission is to protect and defend the Constitution of the United States and the
People’s rights, privileges, and immunities deeply rooted in this Nation’s history and
tradition, especially the inalienable, fundamental, and individual right to keep and
bear arms.

2See, e.g., FPC v. Whitaker, Dist. of D.C. Case No. 18-cv-3083 (seeking invalidation of
President Donald Trump’s directed unlawful and unconstitutional ban on so-called
“bump-stock-type-devices” and to prevent Acting Attorney General Matthew
Whitaker from unlawfully exercising authority as Acting Attorney General).

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Senate Majority Leader Mitch McConnell, et al.
Re: Opposition to the Confirmation of Mr. William P. Barr
Wednesday, January 16, 2019
Page 2 Of 4

Specifically, we write to express our concerns about and opposition to President

Trump’s nominee for the position of Attorney General of the United States, Mr.
William Barr. In addition to his concerning prior statements on matters of great
importance to FPC and our members and supporters3, his testimony in a recent
hearing held by the Committee on the Judiciary compels us to oppose his confirmation
and respectfully request that the Senate withhold its consent.

In a recent confirmation hearing, Mr. Barr stated that he “personally

concluded that the Second Amendment creates a personal right under the
Constitution.” Respectfully, the Constitution does not “create” natural (i.e.,
“fundamental”) rights. “[I]t has always been widely understood that the Second
Amendment, like the First and Fourth Amendments, codified a pre-existing right.”
District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008) at 2797. Indeed,
“[t]he very text of the Second Amendment implicitly recognizes the pre-existence of
the right and declares only that it shall not be infringed.” Id. (cleaned up). Moreover,
“[t]his is not a right granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence.” Id. (quoting United States v.
Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876)) (cleaned up). As the Supreme
Court went on to reaffirm, “[T]he right to keep and bear arms” is “among those
fundamental rights necessary to our system of ordered liberty.” McDonald v. City of
Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3042 (2010).

The Attorney General of the United States should be someone who both
understands and respects the “fundamental” nature of the right to keep and bear arms
and other pre-existing rights.4

3See, e.g., W. Barr on Gun Control, 1991 Attorney General confirmation hearings, day
one, C-Span (Nov. 12, 1991), online at https://www.c-span.org/video/?c4774406/w-
barr-gun-control.

4 In the same hearing, Mr. Barr also stated that he was “skeptical” of the
“commandeering” argument that ultimately formed the basis of a successful challenge
to prior federal laws that directed state and local law enforcement officers to
participate, “albeit only temporarily,” in the administration of a federally enacted
regulatory scheme (in that case, federal gun control laws). See Printz v. United States,
521 U.S. 898 (1997), 117 S. Ct. 2365. This is a striking and troubling statement that
Mr. Barr views federalism to be an inconvenience to his apparent preference for broad

FIREARMSPOLICY.ORG
Senate Majority Leader Mitch McConnell, et al.
Re: Opposition to the Confirmation of Mr. William P. Barr
Wednesday, January 16, 2019
Page 3 Of 4

Mr. Barr also expressed support for so-called “Extreme Risk Protective Order”
laws, also known as “red flag” laws. This is a matter of the highest concern. As we
have communicated to you in prior correspondence and materials, FPC strongly
opposes such schemes because “red flag” orders, and their underlying statutes, are
unconstitutional, unsound, and dangerous (both on an acute, individual basis and in
broader terms of individual liberty and American fundamental principles).5 We are
deeply concerned that, should Mr. Barr be confirmed, he would use the Office of the
Attorney General and the Department of Justice to both promote “red flag” laws (and
their resulting prohibition and confiscation orders) and defend their constitutionality
in inevitable litigation resulting from individuals being forcefully separated from their
rights and property.

Adding insult to injury, Mr. Barr also testified that, in his view, “there is room
for reasonable regulation” of Second Amendment rights and related instruments. He
went on to parrot the same arguments and talking points that we, our counsel, and
their litigation parties/clients see proffered in case after case by various states
attorneys general, local governments like the cities of Los Angeles, San Francisco, and
New York, and billionaire-backed special interest organization amici who support
severe gun control laws—most of which carry stiff criminal penalties for even
unknowing violations.

This is a strong indicator that Mr. Barr, if confirmed, would not only maintain
the DOJ’s troubling current litigation positions, but potentially even direct United
States Attorneys and DOJ civil litigation counsel across the nation to take even more
aggressively anti-rights, authoritarian positions in a wide variety of prosecutions and

federal powers, rather than a constitutional feature, and something that can be
ignored or argued around. Mr. Barr may not prefer the Constitution’s structure, but
it may not be ignored. The Supreme Court held in District of Columbia v. Heller that
“the enshrinement of constitutional rights necessarily takes certain policy choices off
the table.” Heller, 554 U.S., at ___, 128 S.Ct., at 2822. The same principle applies to
the Constitution’s express textual limits on federal authority.

5See also FightRedFlagLaws.com, FPC’s online Grassroots Action tools that people
can use to oppose federal “red flag” legislation.

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Senate Majority Leader Mitch McConnell, et al.
Re: Opposition to the Confirmation of Mr. William P. Barr
Wednesday, January 16, 2019
Page 4 Of 4

constitutional challenges. That is not the proper remedy for centuries of constitutional
resistance and atrophy.
***

We believe that the views expressed by Mr. Barr disqualify him from serving
as the Nation’s highest law enforcement officer—someone who would set the policy
and enforcement practices of the United States in both civil and criminal matters. The
Constitution, the People of the United States, and law-abiding gun owners do not need
another enemy.

For these and other reasons too numerous to expand on in this brief message,
we urge the Senate to exercise its constitutional authority, and moral duty, to
withhold consent from President Donald Trump’s current nominee to serve as the next
Attorney General of the United States, Mr. William P. Barr.

Please do not hesitate to contact us at policy@fpchq.org or 4212 North Freeway

Boulevard, Suite 6, Sacramento, California, 95834, if we or our counsel can be of any
assistance.

Sincerely,

Brandon Combs
President

cc: Senator Dianne Feinstein, Ranking Member, Senate Judiciary Committee

The Honorable Members of the United States Senate
President Donald Trump

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