Fifty Problems with the Coburn Gun Control Draft

Senator Tom Coburn of Oklahoma, having negotiated with Senator Chuck Schumer of New York, has prepared his substitute to the Obama/Schumer background check legislation. The Coburn draft is the most recent incarnation of Schumer’s efforts to get Republicans to destroy themselves.

Here are the first 50 problems with the Coburn draft which was sent to media outlets late last week:

(1)  First of all, it’s pretty clear by now that the goal of Obama and Schumer is, in the words of the Brady Campaign, to put “points on the board” so they can maintain their momentum for more gun control demands.  Mark Glaze of Mayors Against Illegal Guns said on MSNBC that they would be back with new demands “the day after” background checks are signed into law.  So, now that we are on the verge of winning, why, in heaven’s name, would Tom Coburn snatch defeat out of the jaws of victory; hand a “win” to Barack Obama so he can credibly say he “broke the back of the gun lobby;” invigorate fundraising for anti-gun groups in 2014; let Red State Democrats, who are up in 2014, off the hook; and create a platform for unending gun control demands that will resume the day his bill is signed into law?

(2)  As a general matter, if Coburn votes for a 60-vote threshold motion to proceed to the base bill and that motion passes, no Republican will have a right to offer any amendment without Harry Reid’s permission.  Reid will put an amendment tree into place and institute an ObamaCare-like procedure. GOP amendments which are regarded by Reid as not particularly dangerous or popular will be allowed to come up — frequently with side-by-side ObamaCare-like Democrat alternatives. Nothing threatening, however, will be allowed.  Under the circumstances, I would recommend to Lee, Paul, and Cruz that they object to the unanimous consent agreement which will probably be required to bring up Coburn while the amendment tree is in place.

(3)  Schumer’s staff stated, in The Washington Post a couple of weeks ago, that they expected they would have to shrink background checks to gun shows and Internet sales. By reincarnating a comprehensive ban on private sales, Coburn has now positioned himself well to the left of where Schumer was willing to go.

(4)  For the record, Adam Lanza stole the guns he used in Newtown.  James Holmes and Jared Loughner passed background checks. Given that the background check legislation — the centerpiece of Barack Obama’s efforts to declare “victory over the gun lobby” — would not address, in any way, the incidents which supposedly gave rise to it, exactly what is its purpose, other than to destroy the Republicans’ “ground game” and decimate the most significant remaining pillar of their coalition?

(5)  Page 2, line 6: “Congress supports the existing prohibition on a national firearms registry.”

COMMENT: I managed McClure-Volkmer for the late Senator James McClure, which contains the registry prohibition, and drafted a lot of it.  The Coburn substitute will overturn the registry prohibition if some Obama-appointed court decides that it is inconsistent with the provisions of preexisting law, which I believe it is. You can’t save McClure-Volkmer with a finding. The rule of construction on page 3 doesn’t help either, because ATF is already engaging in widespread copying of 4473’s — and claiming it’s not a registry. If you have more 4473’s or more 4473-like information on more people, ATF’s “not-a-registry” will be much bigger.

(6)  Page 3, line 1:  “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

COMMENT:  You understand that 18 U.S.C. 922(d)(3) and (g)(3) make a person a prohibited person if they are “an unlawful user of or addicted to any controlled substance,” right?  And you understand this would subject every gun owner who smokes marijuana (medical or otherwise) to a ten-year prison sentence (under 18 U.S.C. 924(a)(2)), right?  And you understand that records of medical marijuana use, drug diversion programs, etc., are in the possession of many state governments and are, technically, required to be turned over to the FBI under the last Schumer-Coburn bill, the NICS Improvement Act of 2007, right?  So are you still so enthusiastic about throwing 20,000,000 gun owners in prison for ten years for smoking pot — not to mention the thousands upon thousands of military veterans who have also been thrown into the NICS system without any due process whatsoever?

(7)  Page 3, line 6:  “…the Department of Justice should make it a top priority to work with States to swiftly input missing records, including mental health records.”

COMMENT:  See above.  But also note a couple of things: First, under the aforementioned NICS Improvement Act of 2007, people who have been diagnosed in connection with a government program to have ADHD (IDEA), post partem depression (Medicaid), or PTSD in connection with service as a policeman or fireman (Social Security Disability et al.) may well be prohibited persons under 18 U.S.C. 922(d)(4) and (g)(4).  In many cases, the reason these files have not been turned over to the federal government is because of state privacy laws.  Note that while, under section 103(c)(1)(A), a state court cannot receive funds for turning over records which are shielded by state law. However, other provisions, such a Eric Holder’s 4-year plans under section 102(b)(1), do not contain that restriction.  We should think long and hard before second-guessing the states about issues of privacy protections for medical and psychiatric records.

(8)  Page 3, line 10:  “…citizens of the United States agree that in order to promote safe and responsible gun ownership criminals and the mentally ill should be prohibited from possessing firearms…”

COMMENT:  Perhaps as many as 150,000 law-abiding veterans have lost their Second Amendment rights without due process at the finding of no more than a VA psychiatrist under the 2007-8 Schumer-Coburn compromise. I doubt if most — much less all — American citizens feel these veterans should have lost their rights.

(9)  Page 4, line 25:  “…the Attorney General, in coordination with the States, may establish for each State … a 4-year implementation plan to ensure maximum coordination and automation of the reporting of records or making records available to the National Instant Criminal Background Check System.”

COMMENT:  With respect to this section and Title I in general, let me make the following observation: There is no indication of what “records” we are talking about, and the sorts of “records” that would be required to be automated in a government database to catch the Adam Lanzas, James Holmeses, and Jared Loughners would be Orwellian in its breadth.

(10)  Page 5, line 16:  “…the Attorney General sha
ll withhold … 10 percent [increasing on a graduated scale to 15%] of the amount that would otherwise be allocated to a State under section 505 of the Omnibus Crime Control and Safe Streets Act of 1968 … if the State does not meet [the Attorney General’s] benchmark…”

COMMENT:  In other words, Eric Holder, “in coordination” but more or less unilaterally, determines what records the states must turn over to DoJ, and those states that fail to strictly comply lose funds under CURRENT FEDERAL PROGRAMS.

(11)  Page 7, line 1:  “A State that fails to establish a plan under paragraph (1) shall be ineligible for [Brady Law funds]…”

COMMENT:  Technically, it’s not the state that establishes the plan.  The Attorney General can foist a plan on a state, with or without its consent.

(12)  Page 12, line 6:  “RELIEF FROM DISABILITIES PROGRAM.”

COMMENT:  There were already “relief from disabilities” programs in the Schumer-Coburn NICS Improvement Act of 2007. The problem is that most veterans cannot afford the $30,000 in attorney’s fees it takes to pursue these remedies in some places. Every week, we hear from veterans who have lost rights WITHOUT DUE PROCESS under Schumer-Coburn, and don’t have the $30,000 necessary to get those rights back.  Perhaps someone should ask Chuck Schumer to remove his amendment which continuously defunds the less expensive program under McClure-Volkmer whereby a prohibited person can petition the ATF for relief from disabilities.

(13)  Page 14, line 18:  “…a person who is determined by the Secretary [of Veterans Affairs] to be mentally incapacitated, mentally incompetent, or experiencing an extended loss of consciousness shall not be considered adjudicated as a mental defective … until … in the case in which the person does not request a review as described in subsection (c)(1), the end of a 30-day period beginning on the date on which the person receives notice…”

COMMENT:  Does everyone understand what this section provides? A person in a coma can have his guns taken away because of the danger he poses to society (armed and in a coma), but he has the right to appeal while he’s in the coma. The fact is that 18 U.S.C. 922(d)(4) and (g)(4) were not originally intended to allow the “Secretary” to “adjudicate” a person as a mental defective — a function which was intended to be performed by a court.  The right to spend a whole lot of money to fight the government is not a right which most Americans have the resources to take advantage of.

(14)  Page 15, line 21:  “Not later than 30 days after the date on which a person described in subsection (a) receives notice submitted under subsection (b), such person may request a review by the board established under paragraph (2)…”

COMMENT:  GOA has dealt with a very large number of veterans who have had their rights taken away.  In order to undertake an appeal like this, they need an attorney ($200+ an hour), one or more psychiatric examinations (together with other expert witnesses), and the time to go through this ordeal when the veteran may be scraping to put together enough income for him and his family to survive. The solution is contained in various proposals by Senators Burr, Graham, and Grassley.  And that is to require due process before a court or magistrate before constitutional rights can be taken away. The solution is NOT to allow the Secretary to unilaterally take away constitutional rights without due process, and graciously “allow” the person to prove his innocence before a board established by the Secretary who found him guilty in the first place.

(15)  Page 16, line 20:  “[This section] shall apply only with respect to persons who are determined by the Secretary of Veterans Affairs, on or after the date of the enactment of this Act…”

COMMENT:  So the 150,000 veterans who have already lost their rights without due process are out of luck.

(16)  Page 17, line 3:  “CLARIFICATION THAT FEDERAL COURT INFORMATION IS TO BE MADE AVAILABLE TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM.

COMMENT:  This, incidentally, includes diversion records and treatment programs with respect to the use of small quantities of drugs, including marijuana.  It may also create a constitutional crisis with respect to sealed court records, which Congress is now requiring to be unsealed, notwithstanding the federal court rules to the contrary.

(17)  Page 18, line 3:  “CLARIFICATION THAT SUBMISSION OF MENTAL HEALTH RECORDS TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM IS NOT PROHIBITED BY [OBAMACARE].”

COMMENT:  Finally, an amendment to ObamaCare that Schumer supports!  This would make it clear that ObamaCare privacy regulations do not prohibit turning over psychiatric information to the NICS system.

(18)  Page 19, line 20:  “…the term ‘covered transfer’ … means a transfer that the transferor, the transferee, or both intends to be permanent…”

COMMENT:  We had heard that there might be exceptions for persons in rural areas (as 18 U.S.C. 922(t)(3)(C) provides) — or for transfers to your next-door neighbor — or for every case where you let your hunting partner look at your gun. There aren’t.  This is the nastiest language imaginable, and is clear indication that Schumer’s fingerprints are all over this draft.

(19)  Page 20, line 1:  “[The private sales Brady Check requirement does not apply to] a transfer between parents or spouses of parents and their children …”

COMMENT:  It is certainly humorous, isn’t it, that, in the era of same-sex marriage, you may go to prison for a very long time for transferring a firearm to your same-sex marriage kid, perhaps (depending on things like what happens to DOMA) even in states where same-sex marriage is legal.

(20)  Page 20, line 9:  “[The private sales Brady Check requirement does not apply to transfers between certain relatives] if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law…”

COMMENT:  So, if you give a gun to your son, not knowing he’s a marijuana smoker — and a trier of fact determines that you should have known — you go to jail for a long time. Same is true for a grandfather who gives a gun to his grandson, who is a military veteran, and neither of them realize that the grandson has been placed in the NICS system after visiting the VA and, because of his PTSD, has been appointed a guardian to manage his affairs. The same is true for a great-grandfather who gives a gun to his great-grandson under any circumstances, without conducting a background check.

(21)  Page 20, line 20:   “[The private sales Brady Check requirement does not apply to] a temporary transfer of a firearm, unless the transferor knows or has reason to believe that the transferee is prohibited from receiving a firearm under Federal, State, or local law.”

COMMENT:  So, if you’re on a hunting trip, and give your gun to your b
uddy to examine, you could go to prison for a long time if (1) your buddy smokes marijuana, (2) your buddy is a veteran with PTSD, (3) your buddy is a New York, Connecticut, Maryland, etc., resident who is prohibited from possessing that type of firearm without a license under the law of his state of residency.

(22)  Page 21, line 14:  “[Transfers between private parties are outlawed unless] the covered transfer is made in accordance with regulations promulgated by the Attorney General under paragraph (3) and after the unlicensed transferee has undergone a background check…”

COMMENT:  In other words, Eric Holder can condition private purchases through portals with any conditions he wants, with the possible exceptions of requiring the purchaser obtain a federal license (under paragraph 4(B)) and requiring the purchaser or seller to keep a 4473 (under paragraph 4(C)).

(23)  Page 22, line 12:  “[Transfers can be made by a license holder only] in a State in which the law of the State requires that a permit for transfer of a firearm be issued only after an authorized government official has verified that the information available to the official does not indicate that possession of a firearm by the transferee would be in violation of State or Federal law.”

COMMENT:  This is similar to language in the Brady Law, which ATF has interpreted to exclude many states’ concealed carry permits.  In Washington state, for example, the state regularly conducted Brady Checks prior to issuing concealed carry licenses, and state law required a background check. But because state statutes did not SPECIFICALLY require that the required background checks be Brady Checks, ATF refused to recognize Washington’s concealed carry permits for the purpose of bypassing the Brady Check for gun purchases (which is allowed under the law).  ATF has obviously been engaged in a game to minimize the use of congressionally authorized concealed carry alternative to FBI checks.  The Coburn language is worse than the current Brady exception in one respect:  Although probably not necessary, Coburn mandates that states insure that conceal carry licenses are not issued in violation of the Cuomo and O’Malley gun bans.

(24)  Page 22, line 16:  “[A check is not required if] the Attorney General certifies that the law in the State in which the transfer takes place requires that the unlicensed transferee comply with subsection (s)…”

COMMENT:  This rewards states that have outlawed private gun sales by setting rules which are more repressive than this bill by allowing their more repressive rules to trump federal law — but only if the Attorney General, at his complete discretion, so certifies.

(25)  COMMENT:  The Brady Law creates an exception for people in very rural areas, particularly places like Alaskan villages. This bill does not allow for such an exception.

(26)  Page 23, line 2:  “…the Attorney General shall … authorize the establishment of an Internet-based portals [sic]…”

COMMENT:  I, and a lot of people in my generation, are not on the Internet and do not know how to use it.  Another group which is disproportionately non-tech savvy:  poor, African-Americans.  So Coburn and Schumer have created a neo-Jim Crow law.

(27)  COMMENT:  Following from the previous point, it appears very likely that, under the Coburn draft, if you don’t have access to the Internet, you don’t have the right to purchase a firearm from anyone other than an FFL in America.

(28)  Page 23, line 11:  “…the Attorney General shall ensure that … an unlicensed transferee who completes a background check using the consumer portal … shall be provided a temporary permit, valid for a 30-day period beginning on the date on which the background check is completed…”

COMMENT:  Soooo … you do a check on yourself and print out your license.  Does anyone not see the holes in this system?  And does anyone not understand the follow-up legislation Chuck Schumer is going to be demanding one month after this system goes into effect? He’ll be demanding that private individuals be regulated like licensed firearms dealers.

(29)  Page 24, line 24:  “…the consumer portal [shall] be designed in a manner that allows for maximum privacy and security protections so that a user of the consumer portal may only run a self-background check and not run a background check on any other person.”

COMMENT:  In an era when hackers are publishing Hillary Clinton’s social security number, this is unachievable.

(30)  Page 25, line 4:  “any information obtained by the consumer portal from an individual shall be destroyed within 24 hours … except for … information required for the unlicensed transferor to verify the validity of the permit, INCLUDING…” [Emphasis added]

COMMENT:  Thus, the list of information the “portal” may keep is not exclusive.  The Attorney General can keep any information he, in his discretion, determines is necessary to “verify validity.” That means he can keep anything for any amount of time.  And, incidentally, since this statute is “later in time,” it would trump any prohibition on a national gun registry contained in McClure-Volkmer.  And the findings and rules of construction at the beginning?  They would also be trumped by this hard-and-fast legislative language.

(31)  Page 25, line 21:  “Notwithstanding any other provision of this chapter, the Attorney General may implement this subsection with regulations.”

COMMENT:  This is the comprehensive “notwithstanding” language Holder needs in order to throw any other prohibition in this section out the window, with the possible exception of the 4(B) prohibition on requiring a federal license and the 4(C) prohibition on requiring the buyer and seller to keep 4473’s.

(32)  Page 26, line 12:  “No department, agency, officer, or employee of the United States may … require that any record or portion thereof generated by a consumer portal be recorded at or transferred to a facility owned, managed, or controlled by the United States…”

COMMENT:  This language came off of my typewriter in connection with McClure-Volkmer and is contained at 18 U.S.C. 926(a)(3).  It provides that 4473’s of troubled dealers can’t be forced to be transferred to federal facilities.  BUT THIS LANGUAGE IS USELESS WITH RESPECT TO PORTALS, BECAUSE THE INFORMATION DOES NOT HAVE TO BE TRANSFERRED TO OR RECORDED IN A FEDERAL FACILITY. When it is submitted, it is already in that federal facility.

(33)  Page 26, line 20:  “[The government may not] use a consumer portal to establish any system for the registration of firearms…”

COMMENT:  This language is also a knock-off from McClure-Volkmer.  But the counterpart McClure-Volkmer language has not stopped ATF from going into gun shops and copying all the information on 4473’s.  So whatever ATF is doing in [illegally] compiling a list and information on American gun owners, it does not regard that as a “system of registration” which would be blocked by this language.

(34)  Page 27, lin
e 7:  “If the consumer portal established under this subsection is ever permanently shudown [sic] or defunded, this subsection shall have no force or effect…”

COMMENT:  But a prohibition on an appropriations bill which lasts only for a year is not a “permanent” defunding. Therefore, Schumer could outlaw private transfers by simply prohibiting annual funding, in the same way as he has, for twenty years, carried over appropriations language barring funding for McClure-Volkmer’s system of relief from disabilities.

(35)  Page 28, line 1:  “Beginning 90 days after the date of enactment of this Act, and every 60 days thereafter, the Inspector General of the Department of Justice shall conduct an audit of not fewer than 50 percent of all background checks … to … prevent waste, fraud, and abuse…”

COMMENT:  Here’s a question:  If all of the documentation was destroyed within 24 hours, how is it possible for the Inspector General to conduct an audit of 50% of the checks?

(36)  Page 29, line 4:  “The Attorney General may not consolidate or centralize the records of the … acquisition or disposition of firearms…”

COMMENT:  I’m not Bill Gates, to say the least.  But, at the risk of being presumptuous, I don’t think the author of this legislation understands the way computers work.  A number of ATF’s regional offices are apparently developing databases of gun owners in their jurisdictions.  So long as they are on a common network, and accessible through a uniform system, you don’t have to consolidate the records in Washington, D.C., to have effectively established a national gun registry.

(37)  Page 29, line 19:  “[ATF] may only seize, copy, or reproduce a record or document of [an FFL if it constitutes evidence of a crime or is seized in connection with a bona fide criminal investigation].”

COMMENT:  This is supposed to be the most important concession to gun owners, who have complained that ATF has come into gun shops, copied the 4473’s, and even taken them home to copy.  That said, the prohibition is full of holes.  It would prohibit copying the physical document or taking it home.  But it would not seem to prohibit sitting in the gun shop with a laptop and entering all of the INFORMATION contained on the 4473’s.

(38)  Page 29, line 3:  If any officer of the [ATF] violates [the prohibition against copying records], the Attorney General … may impose a civil penalty [etc.].”

COMMENT:  In other words, the enforcement mechanism for all of this is ….. Eric Holder.  That’s like taking the world’s most voracious super-fox and putting it in charge of the largest aggregation of the world’s most delectable chickens.

(39)  Page 30, line 23:  “The amendments made by this title shall take effect 180 days after the date of enactment of this Act.”

COMMENT:  So after six months, you can’t make a private gun sale without going through a portal.  So what if, like ObamaCare, implementing the system takes longer than that?  Under paragraph (7), the section ceases to be effective if there is “permanent shutdown [sic] or defund[ing]…”  But what if the system simply takes a year longer than expected to be put in place.  Private gun sales would seem to be outlawed for that period.

(40)  COMMENT:  Which leads to another question. What if the portal system is a disaster, constantly breaking down to an even greater extent than the current Brady Check system (which has shut down gun shows nationwide for entire weekends)?

(41)  Page 31, line 7:  “There is established a commission to be known as the National Commission on Mass Violence…”

COMMENT:  Half of the members (including the chairman) are appointed by Harry Reid, in consultation with Nancy Pelosi.  It is hard to imagine that this is anything other than a platform for continuing agitation for more gun control.

(42)  Page 32, line 4:  “The members [of the commission] shall include … individuals who have expertise, by both experience and training, in — (I) firearms…”

COMMENT:  Tacked onto a bill which ignores any remedy for violence except gun control, we now have a commission which has, as priority number one, guns.  We’ve seen this movie before.  Media efforts to exploit Newtown in order to achieve gun control will inexorably lead to more copycat shootings.  And, when they do, this commission will be there to serve as an engine for advocacy for anti-gun legislation.

(43)  Page 35, line 18:  “[The issues which the Commission shall study include] whether medical doctors and other mental health professionals have the ability, without negative legal or professional consequences, to notify law enforcement officials when a patient is a danger to himself or others…”

COMMENT:  It’s not a huge thing, compared with the other problems in the bill.  But it’s probably an indication of something that the draft looks not into whether turning in your patients to police or, possibly, the NICS system is ethical or ultimately efficacious, but, rather, whether it’s legal.

(44)  Page 36, line 9:  “[The issues which the Commission shall study include] the availability and nature of firearms, including the means of acquiring such firearms, and all positive and negative impacts of such availability and nature on incidents of mass violence or in preventing mass violence…”

COMMENT:  Self-explanatory.

(45)  Page 36, line 14:  “[The issues which the Commission shall study include] the role of current prosecution rates in contributing to the availability of weapons that are used in mass violence…”

COMMENT:  Many of us don’t share the notion that harassing veterans and other potential gun owners for violating the inexplicable myriad of gun laws is a good thing.  I can say from having negotiated with the highest officials in ATF in 1984 that even ATF doesn’t understand our gun laws, and sending otherwise law-abiding citizens to prison for petty violations is not a good thing.

(46)  Page 36, line 17:  [The issues which the Commission shall study include] the availability of information regarding the construction of weapons, including explosive devices, and any impact of such information on such incidents of mass violence…”

COMMENT:  Huh?  This “purpose” probably wins the prize for threatening the most constitutional rights in a single agenda item.

(47)  COMMENT:  For all of the Orwellian purposes of the commission, there is one which is noticeably absent:  The role of the broadcast media in generating copycat shootings through saturation coverage intended to serve as an engine for gun control.

(48)  COMMENT:  Also missing from the politically correct platitudes which will serve as the purpose for this commission is one factor which appears to have been present in many school shootings:  The removal of school discipline and replacement with a “mental health” system which turns perhaps 15% of high school boys in
to “Ritalin junkies.”

(49)  COMMENT:  All of this leads to a broader commentary on the bill itself:  For all of the platitudes about the variety of causes of mass violence, the legislation always comes down to one objective:  gun control.

(50)  COMMENT:  If you give Obama and Schumer this “victory over the gun lobby and the GOP,” you will have created an aura of invincibility for everything else he wants to do, including amnesty, same sex marriage, cap-and-trade, tax increases, etc., etc., etc.

 

Michael E. Hammond is the Legislative Counsel for Gun Owners of America.