How the Anti-Gun Sentencing Bill Punishes Gun Owners

How the Anti-Gun Sentencing Bill Punishes Gun Owners

Gun Owners of America reported recently that gun owners’ activism has resulted in the death of the anti-gun sentencing bill (S. 2123 in the Senate and H.R. 3713 in the House).

But a number of our members have expressed confusion over how it is that we reached our conclusions with respect to the anti-gun provisions of the sentencing bill (S. 2123 in the Senate and H.R. 3713 in the House).

We concede that it is pretty easy to get confused if you’re not thoroughly conversant with federal gun law.

But here is why those bills are anti-gun.

(1) Punishing veterans for owning weapons

Section 105(a)(1) of S. 2123 (as reported from committee) and section 6 of H.R. 3713 increase, from 10 years maximum to 15 years maximum, the potential prison sentence for people who violate 18 U.S.C. 924(a)(2).

18 U.S.C. 924(a)(2) provides:  “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”

The sentencing bill would strike “10 years” and replace it with “15 years”.

FYI, 18 U.S.C. 924(a)(2) is a creature of the 1986 Firearm Owners Protection Act.  But its function is to set the criminal penalties and mens rea for each of the subsections of federal gun law [i.e., of the 1968 Gun Control Act].

Of the seven subsections for which 18 U.S.C. 924(a)(2) establishes penalties, the most important are 922(d), (g), and (o).

922(d) and (g) are the “prohibited persons” subsections.  They make it illegal for certain persons to possess, transfer, acquire, etc., any firearm.

Among the persons prohibited from possessing firearms are those who, according to paragraph 922(g)(4), “ha[ve] been adjudicated as a mental defective or who ha[ve] been committed to a mental institution.”

Why many veterans are being treated as “mental defectives”

In 2008, over GOA’s strenuous objections, Congress passed the NICS Amendments Improvement Act of 2007 (which we called the “Veterans Disarmament Act”).

That statute codified the ATF’s phony definition of “mental defective.”

So, under the 2008 Act, you are a “mental defective” if a “lawful authority” has determined that you are “a danger to yourself or others” or are “unable to manage your [financial] affairs.”

“Lawful authority” is, in turn, defined to include a VA psychiatrist — and, specifically, doesn’t require an adjudication by a court or even a board or commission.

So here’s how it’s worked for over 250,000 veterans:  A VA psychiatrist “treats” a veteran with PTSD.

Pursuant to that session, the psychiatrist normally appoints a “fiduciary” for the veteran, and as a result “determines” that the veteran cannot handle his financial affairs.

He sends the veteran a letter saying that the veteran’s name will be sent to NICS and that the veteran will thereafter be barred from owning a gun.

Now, the veteran, technically, has a right to appeal that determination to a court.

But, in most states, the attorney and “expert witnesses” necessary to undertake a successful appeal will cost from $10,000 to $100,000.

Most veterans don’t have that amount of money.

As a result, there have only been a tiny, tiny, tiny number of successful appeals.  More than 250,000 veterans, on the other hand, have lost their guns pursuant to this procedure.

And incidentally, if a veteran neglects to (or chooses not to) dispose of every single gun in his house, he could easily go to prison under this subsection.

The same is potentially true, under the doctrine of “constructive possession,” if his wife keeps a gun.

The so-called “compromise” version of S. 2123 would drop this provision.  But it has not yet been adopted, and, at any rate, the House bill still contains the problematic language.

One more thing:  The Obama administration has just commenced rulemaking to replicate what has been done to veterans, and to do the same to Social Security recipients.

(2) Punishing gun owners who fire malfunctioning semi-autos 

The other important subsection punished by 18 U.S.C. 924(a)(2) is the Hughes Amendment — 18 U.S.C. 922(o).  This subsection criminalizes civilian possession of any new machine gun manufactured since May, 1986.

This is particularly important for two reasons:

First, law-abiding semi-auto owners — like David Olofson — have been successfully prosecuted for unlawful possession of a machine gun when their semi-autos misfired and fired multiple bursts with the single pull of a trigger.  Hence, it’s not hard for an innocent person to be entrapped by this subsection.

Second, Supreme Court nominee Merrick Garland held, in 2012, that a person convicted of a machine gun offense did not actually have to “know” that the gun was a machine gun, even though the statute contained a “knowing” requirement.

When you combine these two precedents, it means that any semi-auto owner is at risk if his gun malfunctions.

Now, Senator Grassley has argued that “15 years” is a maximum, and not a mandatory minimum.  And that is right.

However, our expectation would be that, if the maximum increases by 50%, the sentencing guidelines will increase by 50% as well.  Otherwise, why increase the maximum?

(3) Punishing gun owners for discussing gun information on the Internet

Section 108 of the Senate committee-passed version of S. 2123 has NOT been dropped from the bill.  (Sec. 108 has been renumbered as Sec. 107 in the “compromise” version of the Senate bill.)

This section creates a MANDATORY MINIMUM FIVE YEAR PRISON SENTENCE for anyone who communicates “technical data” with respect to any gun on the Munitions List or the Commerce Department’s arms list to a terrorist.

“Technical data” is clearly nothing more than “how-to” information communicated by a gun technician. And the United States Munitions List contains a lot of guns.

But what about the requirement that the information be communicated to a terrorist?

Under the State Department’s analysis, which we vigorously objected to here and here, a person who communicates on a medium is deemed to have communicated with everyone else on that medium.

Therefore, information posted on the Internet is deemed to have been transferred to everyone else on the Internet (which includes ISIS and Al Queda).

Clearly, a prohibition of “technical data” on guns on the Internet is unconstitutional and deliberately, dangerously broad.

Michael Hammond is the Legislative Counsel for Gun Owners of America, a grassroots organization representing more than 1.5 million gun owners.