8/95 Republicans Push Anti-Rights Bill Through Senate
— Sen. Patty Murray (WA), on explaining her reservations with the anti-terrorism bill, before she voted in favor of it (6/7/95)
“Chipping away at the edges of freedom,” is how Senator Murray described the impact of the anti-terrorism bill. Indeed, more than 90 Senators took a bite out of freedom when they passed the terror package back in June.
While voters last November may have had “change” on their mind, the truth is that much has remained the same in the area of Constitutional rights. This year, Senate and House leaders have deliberately prevented votes to repeal the gun ban and have pushed legislation that endangers every American’s freedoms. The House has voted for legislation that threatens gun owners by giving law enforcement officers expanded powers to conduct non-warrant searches and seizures, and the Senate has voted to give an extra $100 million to the BATF (Bureau of Alcohol, Tobacco and Firearms).
An old proverb states, “The more things change, the more they stay the same.” Indeed, it seems that there is nothing new under the sun.
GOA lobbies to remove several anti-gun provisions
After President Clinton called on Congress to send him a terror package, Republican Senators Bob Dole (KS), Phil Gramm (TX) and Orrin Hatch (UT) stepped up to the plate. These big hitters cosponsored a terrorism bill (S. 735) that, in the name of combating terrorism, would clamp down on many of the freedoms Americans enjoy.
As introduced, the Dole-Gramm-Hatch bill contained a firearms conspiracy provision allowing the BATF and federal prosecutors to punish otherwise law-abiding citizens for far-reaching conspiracy charges (including simple paperwork and technical violations) even though no overt act was committed.
For example, a woman goes to a gun dealer and indicates that she is being pursued, that she needs a handgun for self-defense, and that she can not wait for the five days required by the Brady Law. The gun dealer indicates that he will sell her the gun, but, a second later, recants and refuses to consummate the transaction. Under the original version of S. 735, the dealer would have been as guilty of a violation of the Brady Law as if he had completed the sale.
GOA lobbied successfully to remove this dangerous provision from the bill. Punishing words without acts has traditionally been avoided by common law because it comes perilously close to incarcerating law-abiding citizens for mere speech. Moreover, imagine what prosecutors could do with a conspiracy statute that doesn’t even require them to demonstrate any act at all. With no overt act requirement, it would be a lot easier for prosecutors to merely invent a claim based on some hypothetical agreement.
GOA also worked to strip another ominous provision from the Dole-Gramm-Hatch bill. This provision would have allowed the federal government to revoke the tax status of any group (suchas GOA, NRA, etc.) for failing to provide whatever information BATF by regulation required, including potentially, their membership lists. This broad net could have been used to destroy any group that has serious complaints against the government.
While GOA succeeded in getting these dangerous provisions removed from the bill, these “rough edges” were only the tip of the iceberg. As soon as S. 735 hit the Senate floor, Democratic Senators were lining up to offer anti-gun amendments. The battle had only just begun.
Dole prevents amendment to repeal gun ban
Once Senators began negotiations over the bill, Senator Dole offered a “unanimous consent” agreement which defined the terms of debate. This “unanimous consent” agreement allowed Democrats the potential for many anti-gun amendments to be considered, without a corresponding volley of pro-gun amendments to put the other side on the defensive.
This list of anti-gun amendments — many of them which would have stripped the Second Amendment to its core — included language to (1) eliminate the Director of Civilian Marksmanship; (2) remove the sunset on Brady; (3) massively expand the BATF; (4) increase the FFL license fee; (5) limit handgun purchases to one per month; and much, much more.
While the Democrats later dropped many of these amendments (that is, they declined to actually present the amendments for consideration), some anti-gun provisions did pass. Not one pro-gun amendment was offered — not even an amendment to repeal the gun ban.
Why not? The answer lies in the unanimous consent agreement which Dole brokered.
Speaking on the Senate floor on May 26, Dole put forth the following request: “I further ask unanimous consent that no assault weapons amendments be in order to the terrorism bill.” Per Dole’s solicitation, the official Senate calendar for the first day of debate on the terrorism bill clearly stated that, “No assault weapon amendments [shall] be in order to S. 735.”
Thus, the unanimous consent agreement not only excluded many pro-gun amendments from being offered, it also specifically prohibited any attempt to repeal the semi-auto ban.
One should keep in mind that just one Senator can prevent a “unanimous consent” agreement from being implemented. As its name implies, a “unanimous consent” agreement requires the acquiescence of every Senator, or the agreement cannot be implemented.
Unfortunately, not one Senator objected to the agreement. Once the agreement was in place, gun owners were in the proverbial position of showing up to a gun fight with a knife. Gun owners were truly “lucky” to have escaped with only a few infringements of their rights.
Dole flip-flops as GOA and activists turn on the heat
Gun Owners of America sent out several fax and computer bulletin alerts to warn gun owners about the betrayal occurring in the Senate. When GOA urged people to call Sen. Bob Dole’s office and protest his actions, the answers his office gave were quite interesting.
Right after GOA’s alert was sent out, callers shut down Sen. Dole’s phone lines. Some callers were told that Dole had allowed all the anti-gun amendments to be filed as a means of killing the bill. “Don’t you know that making a bill worse is a good way to kill a bill,” one caller was told by a Dole staffer. The only problem is, Sen. Bob Dole is the chief sponsor of S. 735. Why would he want to make his own bill worse, so he can then defeat it?
The next morning, Dole’s spin-doctors were singing a different tune. Callers were told that Sen. Dole had NOT brokered a “unanimous consent” agreement allowing all the anti-gun amendments to be filed. [Remember, the day before, Dole’s office had been claiming that allowing the anti-gun amendments was a strategy to defeat his bill. Confused? So were we.]
What about the claim from Dole’s office that he did not broker a “unanimous consent” agreement? Well, The Congressional Record (5/26/95) paints a different picture and gives the following account on pages S 7609-7610:
Mr. DOLE. I ask unanimous consent that the following amendments be the only first-degree amendments in order … and that the amendments be limited to the following time agreements where designated, to be equally divided in the usual form. . . . I further ask unanimous consent that no assault weapons amendments be in order to the terrorism bill. . . .
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.
At this point in the debate, the Senate had agreed to two things: 1) To decide which amendments could be offered; and 2) To limit the number of the amendments. What followed in the Congressional Record was a list of the 60-plus amendments which would be allowed — many of them would have stripped the Second Amendment to its bare bones.
As already stated, most of the horrible amendments did not pass (amendments such as gutting the DCM, limiting handgun purchases to one per month, etc). But some did, including the following:
(1) An amendment to increase the BATF budget by $100 million (or $20 million a year through the year 2000); (2) An amendment to extend the statute of limitations for violations under the 1934 Act from three years under current law to five years; (3) An amendment to expand the ability of the military to enforce civilian law; (4) An amendment to allow the government to wiretap your home if a person subject to a wiretap order visits your home.
All these amendments were included in the version of S. 735 which passed the Senate by a vote of 91-8. The only Senators voting against the bill were Senators Russ Feingold (D-WI), Carol Moseley-Braun (D-IL), Patrick Moynihan (D-NY), Claiborne Pell (D-RI), Paul Simon (D-IL), Paul Wellstone (D-MN), Mark Hatfield (R-OR) and Bob Packwood (R-OR).
GOA kept the heat on Dole’s office, urging callers to protest his support of a bill fraught with limitations on Americans’ rights. Again, another tidal wave of calls descended upon Dole’s office. And again, his office persisted in “spin-control.”
First, Dole’s office said, “The only gun control provision that passed was the extension of the statute of limitations under the 1934 Act, and that can be deleted in conference committee.” It is interesting to note that Dole’s office at least acknowledged that SOME gun control passed. However, there is certainly more than just this provision, which by itself, is not the most onerous provision that could have been passed. [The bigger issue here is that despite the mandate of the November elections, Congress continues to run the opposite direction and inflict upon us the “death by a thousand cuts.”]
In contrast to Dole’s office, most gun owners would categorize the provision increasing the BATF budget by $100 million as a “gun control” provision. At a time when Congress should becutting this agency back, a $100 million increase is a slap in the face of gun owners. But there are other troublesome provisions as well, which Dole’s office has ignored.
For instance, Dole’s office claimed the bill does not get the military involved in enforcing civilian law. And yet this directly contradicts what fellow Senator Russ Feingold (D-WI) said on the Senate floor on June 7:
One of the hallmarks of a democratic society is the separation of the military . . . from internal law enforcement responsibilities. Military dictatorships use soldiers to enforce their laws; democracies do not. . . . I do not believe that it is necessary to give the military arrest powers within the U.S. . . . The notion that military personnel will be operating without accompanying civilian officials is very troubling. (Page S 7854 of the Congressional Record, 6/7/95.)
Further complicating matters, Sen. Feingold admitted, was the manner in which the military enhancement provision was added:
This broadening of the authority of the military, albeit in a narrow area, was not part of a bill reported by the committees of jurisdiction, but rather was introduced and voice voted within the span of a few hours. . . . This is not the way to deal with such a fundamental issue. (Ibid.)
Another dangerous provision was highlighted by Senator Larry Craig (R-ID). He said that among his objections to S. 735 was “the new wiretapping authority” which expands the government’s ability to wiretap the homes of innocent parties. Sen. Craig pointed out that “there are conflicting opinions even among my colleagues who are lawyers about whether some of these provisions will survive court review.”
But despite all the objections raised by Senators to the bill, despite all the comments about “chipping away at freedom,” 91 senators voted to pass the “terror package.” The battle then moved to the House, where sadly, some House Republicans have been working as feverishly as their Senate counter parts in getting something to the president’s desk. Nevertheless, the Clinton-allies face a much tougher challenge in the House.
House Republicans Send Gun Control Bill to Floor
— Rep. Hyde pushes terrorism bill out of committee
“We have more personal liberty in this country than any other democracy in the world,” President Bill Clinton said recently. “[But] all of us have to pay a price to maintain our freedom to meet the challenge of this day.”
Mr. Clinton’s comments were directed primarily at Republican law-makers in an effort to persuade them to act quickly in passing terrorism legislation and to forgo the repeal of the 1994 “assault weapons” ban.
Thus far, the president’s tongue lashings have been working. Certain Republicans in both the House and Senate are falling all over themselves rushing to give the president “what he wants.” One Justice Department official even bragged that the Senate and House versions of the anti-terrorism bill are “very close to the president’s bill.”
Indeed, the Senate overwhelmingly passed the terror package by a 91-8 vote in June and later that month, the House Judiciary Committee passed their own version of the bill (H.R. 1710). All but four Republicans voted for the bill in the House Committee, while fewer than half of the Democratic members followed suit.
Judiciary Committee Chairman Henry Hyde (R-IL), the bill’s sponsor in the House, predicts that Congress will pass the terror package despite concerns that it would jeopardize individual civil liberties. “I think everything that has been done here is a balance between the constitutional requirements and the need to provide for national security,” Hyde said.
Democrat John Conyers of Michigan, however, disagreed. “The committee has been unable to balance the rights of citizens with attempts to stop terrorism,” Conyers said.
H.R. 1710 endangers gun rights
The House terror package is fraught with gun control and contains a provision which could very well drive every gun manufacturer, distributor and dealer out of business.
H.R. 1710 imposes a mandatory minimum prison sentence on any person who transfers a firearm “having reasonable cause to believe” that the firearm would be used in a crime of violence (Section 204). (The term “crime of violence” is defined very broadly and includes threatening to use force against property.)
This section is a loaded gun, pointed at the head of the American firearms industry.
Currently, the dealer, manufacturer, or seller must “know” that the firearm he is transferring will be used in a crime of violence in order to invoke criminal liability. If he does not “know” that what he is doing is wrong, he is not guilty.
But the new definition would allow a prosecutor and court to analyze the sale of any firearm which was subsequently used in a crime to determine what the manufacturer, dealer, or seller “should have known.” In the hands of a “Janet Reno,” there is even a possibility that a manufacturer could be prosecuted for selling a type of firearm “having reasonable cause to believe” that the characteristics of that type make it more likely to be used in a crime of violence.
Or, a manufacturer/seller could be prosecuted under the reasoning that ‘Out of all the guns you sold, you should have known that some would wind up in the wrong hands.’
This provision could conceivably drive gun manufacturers and gun dealers out of business. Moreover, BATF will be entrusted with enforcing this provision — a move which will likely result in the added harassment of those manufacturers and dealers.
Mr. Hyde made a bad bill worse by offering an amendment that would redefine terrorism to include the use of an explosive or firearm “other than for mere personal monetary gain, with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.”
Taking this amendment simply at face value reveals two extremely dangerous consequences which affect not only gun owners but all honest citizens. The initial consequence is that it elevates many current state crimes to the federal level.
“Every crime in the country involving a gun or explosive – other than a simple robbery – now becomes a federal offense, and not only that, a terrorist act,” said Rep. Bob Barr (R-GA).
This means that acts as harmless as brandishing a firearm to discourage criminal activity could suddenly become a federal offense, subjecting a person to oftentimes less-than-sympathetic federal prosecutors and mandatory prison terms.
GOA Executive Director Larry Pratt, in response to the Hyde amendment, said that “the states should be allowed to prosecute crimes that occur within their borders. Crime control was never intended to be a function of the federal government, and besides that, federal law enforcement has proven its ineptitude at Waco, Ruby Ridge, and in countless other lesser known cases.”
The second problem with the amendment, which flows naturally from the first, is an unprecedented expansion of federal law enforcement powers. The BATF is, of course, tasked with enforcing federal firearms regulations. So an increase in the number of federal firearms crimes results in a direct increase in the size of the BATF and the scope of its authority.
BATF isn’t alone in receiving an increase in power. All federal law enforcement agencies will have enhanced jurisdiction in state crimes. Referring to the Hyde amendment, Rep. Barr said that it would mean “the standards are looser in terms of the government’s power to investigate with the new wiretapping authority.”
Larry Pratt voiced the disgust of many when he said that, “Congress has so quickly forgotten the message of last November. The people sent the message to Congress, ‘we want less government!’ Meanwhile, the President is clamoring ‘give me more power!’ It is becoming increasingly obvious who Congress is listening to.”
Republicans help adopt Schumer amendment
Republicans were not content with only adopting amendments offered by their party. Some went a step further and voted for an amendment by the most vocal anti-gun representative in the House — Charlie Schumer.
Schumer has one thing that so-called pro gun rep’s could learn from: he never stops fighting for what he believes in. Unfortunately, he believes in nothing more than banning firearms.
In a markup hearing, Rep. Schumer decided to test the Republican controlled Judiciary Committee by offering an amendment to ban “cop killer” bullets. Did he expect the measure to pass? Probably not. Why would the new faces on the committee, swept into office in large part onthe votes of gun owners, ever vote for one of Charlie Schumer’s anti-gun schemes? Well, Schumer was surprised. Three freshmen Republicans broke ranks with the majority and voted in favor of the ammo ban, allowing it to pass by a vote of 16-14. There were five republicans absent when the vote occurred.
GOA Fax alert applies the heat
The rest of that day and all the next, the three Republicans were barraged with an incessant volley of phone calls and faxes. (GOA Fax Alert members were, as usual, right in the thick of the fray.) The pressure was so intense that one of the dissenters, Rep. Mike Flanagan (R-IL), made a rare procedural motion the next day to reconsider the Schumer amendment. Such a motion can only be made by someone on the “winning side” of the vote.
What Flanagan’s motion should have meant was that the Committee would simply vote again on the ammo ban, with assurances made that the five people who were absent would be there to cast a vote, killing the measure. But it didn’t work out that way.
Just before the committee was to vote for the second time on the ammo ban, another of the Republican dissenters, Mr. Heineman of North Carolina, offered his own substitute amendment to replace Schumer’s.
The difference between the two amendments is as follows:
* The Schumer amendment called for an investigation by the Justice Department of handgun ammo. Whatever the study determined to be armor piercing would, without further deliberation, be banned.
Of course, since almost all rifle ammo could penetrate “bullet proof” vests, and because there are handguns available that have the capacity to accept most rifle ammo, the majority of rifle ammo could be banned under Schumer’s definition of “armor piercing” bullets.
Clearly, settling for the Schumer ban would have been the worst option. But with all the Republicans voting, the Committee should have been able to defeat the Schumer amendment without having to compromise.
* The Heineman proposal stipulated that six months after the passage of the bill, the National Institute of Justice (NIJ) should conduct the study instead of the Justice Department. And then, instead of being instantly banned, any offending ammo would have to go through Congress in order to be banned. Mr. Heineman’s substitute amendment assured that there would be no “clean” vote on the ammo ban. Republicans would not have to take a stand and vote “up or down” on repealing a bullet ban.
The substitute passed effortlessly. Gun owners and pro-gun groups were drinking from the cup of victory. And certainly there was cause to celebrate. But something got lost in the midst of all the commotion.
An interesting exchange took place between Republicans and Democrats during the debate over the substitute amendment. Democrats accused the Republicans of causing the blood of police officers to “run in the streets” because of their opposition to the ammo ban. Republicans were quick to counter, however, that they were not opposed to an ammo ban in principle.They were simply opposed to this ammo ban.
Every Republican who spoke against Schumer’s proposal also stated unequivocally that they favored a ban on “cop-killer” bullets. Some even bragged that they voted in favor of a similarban in 1986. They simply didn’t want an agency to do the banning; they wanted to reserve that right for themselves.
Many cops oppose banning bullets
Despite all the talk about banning bullets in the name of helping cops, some police groups have been quite critical of the so-called “cop-killer” bullet bans that are being discussed.
The Law Enforcement Alliance of America is the nation’s largest coalition of police officers and crime victims. Jim Fotis, the head of LEAA, called for Congressman Schumer to put aside political opportunism and deal with some hard facts:
“How many cops were killed by ‘cop-killer’ bullets in the past ten years? None. How many cops died because miscreants with violent felony records were out on the streets early, well before their last sentence ran out? The answer: almost every single cop recently killed, wounded or maimed was the victim of such felons,” Fotis said.
Fotis reports that the most recent officer killed was in Sparks, Nevada. A felon with 88 prior arrests was sentenced to 19 years for his most recent infraction. The judge knocked it down to ten years. He was eligible for parole after three years. After being released to the streets again, he committed a few minor larcenies before he killed a cop during an armed robbery.
Fotis is urging lawmakers to support “truth in sentencing” legislation instead of using their high office to “mislead the American public and further endanger our cops.”
As this newsletter goes to press, several House sources have told The Gun Owner that H.R. 1710 may not go to the floor of the House until September. Please stay tuned.
Gun Owners Foundation Honors Sheriff Richard Mack
Arizona Sheriff Under Attack for Defending Second Amendment
On February 28, 1993, Sheriff Richard Mack of Safford County, Arizona, filed suit in Tucson federal district court against the federal government. Mack charged that the federal government was requiring him to perform a task that it has no jurisdiction over, and for which it did not provide funding. (The task in this case was to run a background check on potential handgun purchasers)
On June 28, 1994, U.S. District Judge John Roll ruled in favor of Mack and agreed that the Brady law was unconstitutional on the grounds that the federal government could not require any agency of a state to perform a function without providing the funding for that purpose. At least five other sheriffs followed Mack’s lead and filed similar lawsuits. In virtually every case, the result has been the same. Thanks in large part to people like Richard Mack, “unfunded mandate” has become a household phrase.
Sheriff Mack, however, has paid the price for standing up for the Constitution. Since his lawsuit, he has been continually attacked by the media and local politicians, who accuse him of “neglecting his duties” and “thrusting himself in the spotlight.”
More recently, the attacks have intensified as Mack defended law-abiding militias on national television after the Oklahoma City bombing. He has also formed a 150 man militia in Safford to assist his 12 deputies in search for lost kids and criminal suspects seeking to hide in the vast Arizona deserts.
After the bombing in Oklahoma City, Sheriff Mack appeared on CNN’s Crossfire as a lone voice speaking out against the media’s relentless and biased attacks on gun owners in general and militias in particular. Mack’s articulate defense, however, was just too much for Safford County resident Debbie Campbell, who claims Mack “makes us [the people of Safford County] look like imbeciles.” She went on to assert that Mack’s “pro-militia remarks are so inflammatory they breed hatred and violence.” Ms. Campbell launched the “Mack Attack,” an effort to have the sheriff recalled in a special election.
Mack is unapologetic for his position on the Second Amendment and militias. “Law abiding citizens have the right to keep and bear arms,” Mack told The Gun Owner. “To me, that is not even debatable. We cannot alter the law of this land, the Constitution, based on media propaganda or statistics. But that’s exactly what many in this country, and sadly, even a few in Safford county, want to do.”
In her hate campaign against Mack, Ms. Campbell likens the sheriff to Hitler and Charles Manson, charging that he is “able to influence great masses of people” by simply opening his mouth and speaking. Ms. Campbell, displaying a good deal of paranoia of her own, also contends that the Graham County militia might be a front Mack is using to align himself with other radical “antigovernment militias.” Perhaps it has never occurred to her that 12 deputies in a county that covers almost 5,000 square miles might benefit from the assistance of a law-abiding and armed citizenry.
Mack Receives Award
In April of this year, the Governor of Arizona Fife Symington presented Sheriff Mack with an award in honor of his commitment to defending the Second Amendment. Mack received the award at the Symposium on Firearms and the Constitution, an event sponsored by Gun Owners Foundation. The Symposium was held in Mack’s home county of Safford. The all day event featured, in addition to Sheriff Mack and Governor Symington, Senator Charles Duke of Colorado, Professor Glenn Harlan Reynolds, attorney Dave Hardy (who is handling the Mack case), Ted Deeds of the Law Enforcement Alliance of America, and Larry Pratt, Executive Director of Gun Owners of America.
Each speaker who participated in the conference is actively involved in halting the federal government’s assault on individual and state rights. The lectures delivered at the Symposium are a blueprint for citizen activism and make excellent “ammunition” in dealing with legislators at every level of government.
Gun Owners Foundation is making available the following lectures delivered at the Symposium on Firearms and the Constitution:
* “Historical Meaning of the Second Amendment” by Larry Pratt
* “The Reassertion of State Sovereignty” by Senator Charles Duke
* “The Commerce Clause and Civilian Disarmament” by Professor Glenn Harlan Reynolds
* “Mack v. U.S.: The Fifth, Tenth, and Thirteenth Amendments” by Dave Hardy, Esq.
* “Why I Sued the Federal Government” by Sheriff Richard Mack
* “A Policeman Looks at Civilian Disarmament” by Jim Fotis
The entire set can be purchased for $4.95 (note: this price includes postage and handling). Make checks payable to Gun Owners Foundation and mail to:
8001 Forbes Place
Springfield, VA 22151
Credit card orders call (703) 321-8585.
HR 1488: Trojan Horse in the Pro-gun Community?
While there are several good bills in the House to repeal the semi-auto ban, the bill which the House leadership has “anointed” for consideration has some tremendous problems with it. H.R.1488, introduced by Rep. Bob Barr (R-GA), contains an impossible-to-swallow provision which would enormously expand the powers of the BATF.
GOA members have deluged Congress with postcards opposing this provision. Already, some Representatives have responded favorably and are working hard to fix the problem section in the bill. Rep. David Funderburk (R-NC) stated in a letter dated July 5, that “I agree with you entirely; we must not allow an otherwise good bill to be used as a vehicle to expand the power and authority of the BATF.”
However, some pro-gun groups have wondered if this expansion would be that bad. GOA’s position is that Section 3 of H.R. 1488 would greatly threaten the rights of gun owners, and that this section MUST be fixed. Since some people have asked GOA for a more detailed breakdown of the problems in Section 3, the following will analyze the language and problems with this section.
How Federal Law defines the language of Section 3
Section 3 of H.R. 1488 states that,
A person who, during and in relation to a serious violent felony [defined below] . . . for which the person may be prosecuted in the court of any state [state crime] . . . (ii) brandishes a firearm . . . shall be sentenced to imprisonment for not less than 10 years.
Some have focused on the language relating to a “serious violent felony” and have mistakenly concluded the mandatory minimum prison terms in this section will only apply to actual, violent criminals.
The problem is, the meaning of “serious violent felony” is not open to interpretation. It does not matter what a “reasonable person” might think this term means. Federal law defines what is a “serious violent felony” and that definition needs to guide one’s interpretation of Section 3
As defined, “serious violent felony” could easily allow officials to charge a person — like the Pennsylvania man mentioned in the previous issue of The Gun Owner — who used a gun to defend himself in his car.
[The June 12 issue of TGO related how this Pennsylvania man took a licensed firearm from his glove compartment and merely laid it on his passenger-side seat in view of an individual who was attempting to force him off an interstate highway. The other individual never even claimed that the man had pointed the gun at him. Nevertheless, state authorities charged the gun owner with intent to “brandish a firearm” and “threatening same which served no legitimate purpose.”]
If the federal authorities were to get involved in such a case, the gun owner could face a mandatory minimum of 10 years in prison for brandishing a firearm during and in relation to “a serious violent felony.” The crime in this case is a “serious violent felony” because of the following progression:
* Serious violent felony,” as defined by 18 U.S.C. 3559(c)(2)(F) includes “firearms use,” which is defined by:
* 18 U.S.C. 3559(c)(2)(D) as “brandishing,” when that brandishing is subject to prosecution in the court of any state and has the elements described in 18 U.S.C. 924(c);
* These elements include carrying a firearm during and in relation to a “crime of violence” which is defined as “the use, attempted use, or threatened use of physical force against the person or property of another.”
The above crime would subject a person to a 10 year mandatory minimum prison sentence under H.R. 1488, Section 3. Moreover, the fact that this section is amending the gun offenses of Title 18 of the U.S. Code means that the BATF is necessarily involved because it has jurisdiction over that section of the code.
Self-defense provision not sufficient
This problem with Section 3 escalates when the gun owner actually fires his gun to deter a violent attack. Under this section, if prosecutors can convince a jury that a gun owner did not act within their narrow definition of self-defense, then the defender would get a MANDATORY MINIMUM sentence of 20 years!
There can often be a huge discrepancy between the way state and federal prosecutors look at self-defense cases. Examples abound where a local, anti-gun prosecutor wanted to harass a person who used a gun in self-defense, but community pressure forced them to drop the case. One wonders if federal prosecutors would be as responsive to local, community pressure.
Lance Cpl. Rayna Ross is a classic example of how state and federal officials can look at the same shooting with “different eyes.”
Ms. Ross is a Marine living in northern Virginia. In 1994, she used her handgun to kill a man who had stalked and threatened her on several occasions. Ms. Ross shot the attacker after he forced his way into her residence in the middle of the night dressed in a black jumpsuit and armed with a bayonet.
The local prosecutor declined to prosecute, calling it a “justifiable homicide.” However, the Marine Corps decided to prosecute Ms. Ross and charged her with crimes that, if convicted, could imprison her for life in Fort Leavenworth, Kansas.
This problem would be multiplied nationwide if federal prosecutors could seek 20 year mandatory minimums using Section 3 of H.R. 1488.
While H.R. 1488 does make some allowances for people who use a firearm to protect themselves, this provision would not prevent BATF from investigating a self-defense shooting and harassing an honest gun owner in the process.
Moreover, this “self-defense exception” is inferior to the laws of many states and would not protect defensive shootings that hit the attacker’s back. H.R. 1488 would supersede those state laws if federal prosecutors are arguing the case.
As we have seen with Bernie Goetz and others, prosecutors have not hesitated to go after persons defending themselves with firearms in life-threatening situations.Such law-abiding citizens could be liable to prosecution because a robber or mugger had momentarily turned away from the defender, perhaps to flee, or perhaps to locate a weapon. Hence, these spilt-second decisions, made in the heat of the moment, would determine whether a gun owner was, in the eyes of the law, engaged in a commendable action in defense of self, family, and others — or whether he was a felon subject to a twenty year mandatory minimum sentence under Section 3 of this bill.
Some House offices have claimed that the state authorities must first charge a person with a “gun crime” before the federal authorities can act. However, nowhere does the bill state this. In fact, the closest the bill comes to this claim is language that purports to give the federal government deference to the states in prosecuting gun crimes. But this language is non-binding and there are no penalties against federal officials for ignoring this section. Besides, officials can easily claim there is a compelling federal interest which allows them to usurp the state’s jurisdiction. There are many examples of the federal government running roughshod over states’ rights.
Even if federal officials do give deference to the states, a person could still be prosecuted sequentially under both federal and state law. GOA’s experience with federal interference in state tasks has taught us that the federal government will not, for long, take a “back seat” to state enforcement or policy.
GOA members are to be commended for their activism in helping to draw the attention of their Representatives to the grave problems in H.R. 1488. Keep up the good work!
H.R. 666 WILL Allow for Non-warrant Searches and Seizures
One of the most dangerous bills introduced this year is H.R. 666, a bill that encourages the harassment of gun owners by removing the incentives for law enforcement officers to secure a warrant. Rep. Harold Volkmer (D-MO) said that under this bill, law enforcement agents will “not have to go to the magistrate and get a warrant for anything. They [can] just go right in there and bust those doors down and go in and take the guns” (Congressional Record, 2/8/95, p. H 1387).
Some voices on Capitol Hill have tried to downplay this problem with the bill. These proponents claim that H.R. 666 will not allow law enforcement to conduct warrantless searches and seizures. And yet, the author of the bill, Rep. Bill McCollum (R-FL), has disputed this very claim.
During debate over H.R. 666 in February, Rep. McCollum stated very clearly that the bill will apply to non-search warrant cases:
A few years ago the U.S. Supreme Court said that in cases where there are search warrants, there can be certain exceptions called the good faith exception . . . [that] will then let evidence in and allow convictions. Unfortunately, the Court did not rule in the non-search-warrant cases…. That is what brings us here today. The proposal before us [H.R. 666] would carve out this good faith exception and broaden it to include not just cases that involve search warrants, but involve all of the cases of search and seizure where the police officer acted as we call it in good faith. . . .
H.R. 666 also expands the good faith exception to situations where law enforcement officials improperly gather evidence without a warrant, yet still have acted with the objectively reasonable belief that their actions are proper. (Congressional Record, 2/7/95, p. H 1316.)
Thus, the author of H.R. 666 admits the bill will give officers greater authority to conduct warrantless searches and seizures. But what about the claim that such a search or seizure must be done in good faith, that it must be done with an “objectively reasonable belief” that the officer’s actions were proper.
Rep. Howard Berman (D-CA) answered this claim by showing that the difference between objective and subjective can often become quite blurred:
I am happy to see the committee report spent some time clarifying the objective standard. But the fact is when you talk about what a police officer thought at the time, I would suggest these may be words [objective v. subjective] but it may not have any real meaning. In the end, you may really be giving to the police officer the final decision on whether or not he thought that search was in good faith, and we will slide very quickly to the intent to provide an objective standard to the reality in the courtroom of a subjective standard which rewards a lack of knowledge about search and seizure law, it promotes and encourages not knowing the specifics of what is permitted and what is not permitted. I do not think it is a healthy standard to give real meaning to the fourth amendment protections. (Congressional Record, 2/7/95, p. H 1329.)
Truly, officers can easily concoct “objective” reasons after the fact to justify an illegal search. The accused then has to prove that the officer actually knew he was not acting properly; they will have to try to delve into the officer’s mind and show what he was really thinking.
This could become quite a problem, since some officers are already known to lie when getting search warrants. The May 1995 issue of Reason magazine printed a very insightful article by Hon. Robert Bauman, a former member of the U.S. House of Representatives.
In his article, Exclusive Justice, Mr. Bauman cites several examples where police fabricated evidence or lied to get a search warrant. Among the examples Mr. Bauman cites are the following:
* A 1988 investigation of the Boston police Drug Control Unit revealed that its members routinely fabricated the existence of informants and lied to obtain warrants from judges.
* An official report of the mayor’s commission investigating police corruption in New York City found that the NYPD routinely makes false arrests, tampers with evidence, and commits perjury on the witness stand. “Perjury is the most widespread form of police wrongdoing,” the report stated, noting courthouse officials have coined a new descriptive word for the activity — testilying.
* New York Legal Aid Society officials say “testilying” is a routine police exercise where officers tailor testimony to meet search-and-seizure constitutional objections and to cover deficiencies in police work.
Currently, one protection afforded by the “exclusionary rule” is that evidence seized during an illegal search will be excluded from trial. But under H.R. 666 (and the Senate bills, S. 3 and S. 54), evidence seized from an otherwise illegal search could be introduced in a trial if the officers can show they were acting in “good faith.” In essence, officers could easily find something to justify their actions after the fact — a practice which, as shown above, is already occurring. One wonders how much worse this problem could become if Congress sends H.R. 666 to the President’s desk.
and become a Postcard Distributor
GOA has printed postcards for you to take to your gun clubs, gun shows and other meetings. If you call the above 800 number you can order postcards dealing with the following bills:
* H.R. 666, S. 3 and S. 54 — These bills would encourage the harassment of law-abiding citizens (including gun owners) by removing the incentives for officers to secure a warrant. Postcards include messages addressed to both Representatives and Senators — the names are left blank for the sender to fill in the appropriate legislators’ names. (Postcards addressed to Representatives ask them to oppose the bill if it comes back from a conference committee.)
* H.R. 1488 — Ask legislators to drop the “BATF enhancement” provision in H.R. 1488. This provision would massively expand the role of the Federal government, giving the BATF moreauthority and more jurisdiction. Postcards will go to House Speaker Newt Gingrich and to a Representative with a blank space for the name to be filled in by the sender.
* H.R. 1710 and S. 735 — Oppose the “anti-terrorist” bills that give BATF $100 million extra, threaten to put gun dealers and manufacturers out of business, expand the government’s wiretap authority, restrict the Posse Comitatus Act, and much more. Postcards include messages addressed to both Representatives and Senators. (Cards addressed to Senators ask them to oppose the bill if it comes back from a conference committee.)
Each set of postcards is $6.00 for the first set of 51, $10.00 for two sets, and $2.50 for each additional set of 51 postcards. There is plenty of time to order the above cards. As this newsletter goes to press, each of the above issues have been delayed, at least until the Fall.
Self-Defense Act Nears 50 Cosponsors
On January 4, Rep. Roscoe Bartlett (R-MD) introduced H.R. 78, the Citizens’ Self-Defense Act of 1995. The bill, which has been steadily gaining support since its introduction, would protect individuals from being prosecuted for using a firearm in self-defense. As this newsletter goes to press, almost 50 Representatives have cosponsored this important bill.
BARCIA (D-MI) CUNNINGHAM (R-CA) MOORHEAD (R-CA)
BARTON (R-TX) DOOLITTLE (R-CA) MYRICK (R-NC)
BOUCHER (D-VA) DORNAN (R-CA) NEY (R-OH)
BREWSTER (D-OK) DUNCAN (R-TN) PACKARD (R-CA)
BURR (R-NC) EMERSON (R-MO) QUILLEN (R-TN)
BURTON (R-IN) FIELDS (R-TX) ROYCE (R-CA)
CALLAHAN (R-AL) FORBES (R-NY) SCHAEFER (R-CO)
CALVERT (R-CA) GEKAS (R-PA) SKEEN (R-NM)
CHENOWETH (R-ID) GEREN (D-TX) SOLOMON (R-NY)
CHRYSLER (R-MI) HALL (D-TX) STEARNS (R-FL)
COBLE (R-NC) HAYES (D-LA) STUMP (R-AZ)
COLLINS (R-GA) HOLDEN (D-PA) WAMP (R-TN)
COMBEST (R-TX) HUNTER (R-CA) WELDON (R-FL)
CONDIT (D-CA) HUTCHINSON (R-AR) YOUNG (R-AK)
CRANE (R-IL) JOHNSON (R-TX)
CRAPO (R-ID) MCKEON (R-CA)