This section will allow goods seized from otherwise illegal searches to be included in trial if the officers can show an "objectively reasonable belief" that they were acting in accordance with the law. Hence, if the police conducted an illegal search of your home in the mistaken but "good faith" belief that you were a drug dealer, they could charge you for an unregistered gun found in your home. Under current law, that gun would not be allowed as evidence in court. This provision, which is similar to H.R. 666 from the last Congress, could easily lead to the harassment of honest gun owners by removing the incentives for officers to get a warrant. As stated by former Rep. Harold Volkmer (D-MO), police will "not have to go to the magistrate and get a warrant for anything" if such a provision were to pass. "They [can] just go right in there and bust those doors down and go in and take the guns."
* This provision (Section 521 of S. 3) expands federal mandatory minimum sentences to persons who "possess" a gun during and in relation to a crime of violence or drug trafficking crime. Currently, the person must actually be carrying the firearm. The problem is that the definition of "crime of violence" includes crimes as minor as a threat against property. Hence, if you are involved in a traffic screaming altercation -- and you have a gun in the glove compartment -- you could be sent away to prison for a MANDATORY MINIMUM PRISON SENTENCE of five, ten, or even thirty years. This provision would seem to impose special prison sentences for the fact that an offender is merely a gun owner. For example, no extra penalties would apply to a person in the above situation who merely "possessed" a knife or nun-chahka in the glove compartment while engaging in the screaming altercation.
* This provision (Section 522 of S. 3) creates a ten year mandatory minimum prison sentence for possession of a firearm by a person who is prohibited from possessing it by virtue of conviction of a violent felony. This is true no matter how long ago the crime occurred. Hence, if you plea bargained to a $25 fine fifty years ago with respect to a "damage to property" crime carrying a potential prison sentence of over one year in prison, and you come into possession of a firearm, you WILL be sent away to prison for a MINIMUM OF TEN YEARS. This should be contrasted with the fact that, in most cases, there is no mandatory minimum sentence for homicide and for the violent felonies that serve as the predicate for this offense.
This section, one of the more dangerous in the bill, would create across-the-board criminal liability for conspiracy to commit any firearms offense, punishable at the same level as the crime you conspired to commit. Assume you are a gun dealer, and a customer who is a battered spouse being stalked by her husband asks you to sell her a handgun without complying with the Brady Bill waiting period. You initially agree, but, walking into the back room to obtain the paperwork, you change your mind and refuse to sell the gun. You will be punished with the same severity as if you had actually sold the gun.
This provision -- clearly, the worst provision in either bill -- would apply the Racketeer Influenced and Corrupt Organization Act (RICO) to gun dealers. In fact, this provision would apply RICO to ALL Title 18 firearms offenses, including simple paperwork violations. This means that a gun dealer, manufacturer, or owner can be treated like a Mafia hit man, and thus be sent to prison for up to twenty years for two record-keeping mistakes. Moreover, the dealer's business can be forfeited -- along with his home, car and any other possession he used in connection with his gun business.
In addition to putting gun dealers behind bars for simply making careless mistakes, this provision will apply horrendous penalties to gun owners that commit relatively insignificant "crimes." For example:
* A person drives downtown and back, passing within 1,000 feet of a school. In both instances, he carries a gun in his glove compartment for self-protection. He could now be sent to prison for 20 years.
* A woman was convicted, 20 years ago, of slapping her husband when she found out she was cheating on her. She pled guilty to a minor misdemeanor and paid a $25 fine. She now owns two guns for self-protection against her ex-spouse, who is stalking her. Possession of those self-defense firearms could now send her to prison for 20 years under the RICO provisions in S. 3.
Further, this provision would allow organizations like Handgun Control, Inc. (HCI) to bring cases in federal court for "injured parties" (such as Bill Cosby or any other family that has suffered from a firearms related injury) and sue the manufacturer or the dealer that sold the gun. If successful, HCI -- or its "prearranged plaintiff" -- would recover three times the actual damages, plus attorney's fees in each suit. HCI would only need to prove, by a preponderance of the evidence, that the manufacturer, dealer or importer had committed more than one record-keeping violation, and that it supposedly led to the victim's injury.
This section could punish an otherwise honest gun owner with a 10-year mandatory prison sentence if he ran afoul of virtually any of the federal code's more esoteric gun laws -- even if the infraction is merely a possession or paperwork charge. While this provision is aimed at hitting "criminal street gangs," its broad reach would affect many insignificant activities. As stated by David Kopel, noted gun researcher and author, any of the following scenarios would hit otherwise honest gun owners with huge jail times if this provision were to pass:
* A group of parents take their teenage children target shooting every weekend one summer. The teenagers use their parents' handgun, under parental supervision. Although the teenagers are under continuous parental supervision, the teenagers do not possess and keep in their possession at all times a written note from their parents authorizing the children to possess a handgun at the target range.
* Three adult men often go hunting together, and like to tinker with their rifles. One afternoon, they put a folding stock on one of their rifles, to make it easier to carry in the field. Another day, they put a muzzle brake on the rifle, to make the follow-up shot more accurate.
All of the "offenders" above could be treated as "criminal street gangs" under this provision and could be hit with a minimum of 10 years in jail. In brief, "gangs" are defined as an association of 3 or more people who commit even two (firearms-related) paperwork or possession offenses that constitute a "primary activity" of the group and that are "committed in connection with, or in furtherance of" the group.
This provision imposes a one-year MANDATORY MINIMUM SENTENCE for anyone who unlawfully transfers a firearm to a juvenile. Therefore, if you lend your handgun to your teenage son, although he does not have his written permission slip from you (required by 18 U.S.C. 922(x)) on his person, you will be sent to prison for a minimum of a year. Many homicide offenses do not even have this type of mandatory minimum sentence.
While the above-mentioned provisions are serious problems from a gun owner's perspective, there are other provisions that could also pose problems down the road:
* Section 312 of S. 3 specifically opens the possibility of extending the jurisdiction of the BATF to policing the Olympics. While certainly not an end-of-the-world provision, it does represent one more chink in the notion that states have primary responsibility for law enforcement within their borders. And it rewards BATF with an explicit expansion of jurisdiction at a time when that agency's behavior does not justify such a reward.
* Section 331 of S. 3 sets up an open-ended National Commission on Terrorism. Every terrorism bill proposed over the last two years has taken a hard anti-gun stance. Surely, this commission, with its Democratic contingent, will not be different.
Pete DuPont, former governor of Delaware, correctly notes that the current crime bills in Congress will federalize state crimes. Writing in the June 2, 1997 issue of The Washington Times, DuPont states:
U.S. attorneys prosecute no more than a couple hundred juveniles a year. And crime, with just a few constitutional exceptions, is a state matter. So why is Congress making this a federal issue? Because people are concerned about crime and politicians believe passing a crime bill means votes. . . .
What is happening here is another federal seizure of state authority. Giving U.S. attorneys this measure of control over state courts is a significant, and unwarranted, broadening of federal power and diminishment of federalism principles.
Another opponent of federalizing crime is Edwin Meese, III, former Attorney General of the United States. Meese correctly noted in The Orange County Register on February 11, 1996:
Perhaps the most compelling reason to oppose nationalizing crime is that it contradicts constitutional principles. The drafters of the Constitution clearly intended the states to bear responsibility for public safety. The Constitution gave Congress jurisdiction over only these crimes: treason, counterfeiting, and piracy on the high seas and offenses against the law of nations.
In conclusion, there are many horrible provisions in S. 3. But even if these provisions are removed, advancing any crime bill will open up the possibility of Democratic anti-gun floor amendments. Based on last year's record (when the Lautenberg and Kohl gun bans easily passed), can we assume that anyone will take a firm stand against such amendments?