6/96 Self-Defense Bill Needed More Than Ever

On February 5 of this year, Timothy Pastuck of Queens, New York became a hero. He rushed into a neighbor’s apartment with his .22 caliber rifle and shot the man who was brutally beating Melida Menzies with a baseball bat.

“He’s my hero,” Melida said from hospital bed. “He saved my life.”

Her eyes were so swollen they were just slits. Her cheeks were purplish and puffed up. Yes, Timothy Pastuck was a hero with Melida, but not everybody was pleased with his actions.

Unfortunately for Mr. Pastuck, his firearm was not registered. Police charged him with attempted murder, assault with a deadly weapon, and unlawful possession of a firearm.

“This is the problem with gun control,” said GOA’s Executive Director Larry Pratt in response to Pastuck’s arrest. “Gun control laws make criminals out of good people and force them to break the law, even when defending one’s life.”

After spending several hours in jail and in court, all charges against Mr. Pastuck were finally dropped. But the anti-gun mentality in New York City, as well as many other jurisdictions, lives on. Many officials simply don’t think that average citizens should own firearms for protection.

It is cases like these that encouraged Rep. Roscoe Bartlett (R-MD) to introduce the “Citizens’ Self-Defense Act,” H.R. 78. If Congress passes this bill, it will protect individuals from being prosecuted for using a firearm in self-defense.

Congressman Bartlett has quietly been gaining support for his bill. Now up to 46 cosponsors, the bill has broad bipartisan support.

Bartlett has pushed to get a vote on his bill, and in fact, almost managed to force a vote already. He temporarily succeeded in attaching his bill to the semi-auto repeal, but House leaders pulled his provision from the bill just before the bill passed the House.

There is no doubt that such legislation is sorely needed.

Perhaps the most notorious case occurred in 1984, when Bernie Goetz shot four thugs who later admitted they were going to rob Goetz because “he looked like easy bait.” A jury acquitted Goetz on assault charges, ruling that he acted in self-defense. Nevertheless, he was convicted of possessing an “illegal” firearm and sent to jail.

Far from being the end of the matter, Goetz’ legal battles have plagued him for more than 10 years. Incredibly, he was recently ordered to pay $43 million in damages to one of the thugs he shot that day on the subway more than a decade ago.

The mounting pressure from years of legal scrutiny may certainly have taken its toll on Mr. Goetz and helped generate some off-color remarks on his part. Nevertheless, the fact remains that civil rights leaders across the nation have defended his right to defend himself.

“Bernhard Goetz was about to be mugged and we know it,” said the head of the Congress of Racial Equality, Roy Innis, over 10 years ago. “If I was there [in Goetz’ shoes] I would have done the same thing, with the only possible difference — [the crooks] probably would have been dead.”
Other gun control victims

Goetz was certainly not the last victim of gun control attitudes or laws.

In Michigan, Donald Campbell was charged for shooting a burglar in 1991. Despite the fact that the intruder had broken into Campbell’s store and attacked him, the local police confiscated his firearm and told him that, “We can’t have shooters going around wounding and maiming people. We are going to make an example out of you.”

The prosecutor plea-bargained with the assailant and planned to use him to testify against Campbell for felonious use of a firearm. Only after intense community pressure did the prosecutor finally drop the charges.

And then there’s “Becky” — another person who ran afoul of the law. Becky lives in Washington, D.C. and owns an unregistered firearm, which she used to defend her family in December, 1993.

After two thugs entered Becky’s home, they began preparing to burn the house. They were armed with knives and had already tied up one of her daughters with duct tape. As one of the intruders charged Becky, she grabbed her gun and shot him. The other fled — that being the good news. The bad news is that Becky was in possession of an illegal gun.

A Washington Times editorial summed up the predicament this way:

    “A Northwest woman fended off two thugs . . . saving her life and those of her daughters in the process. Now comes the hard part: waiting to see if the U.S. attorney’s office will charge her with illegally defending herself. There is nothing in DC law that exempts those . . . who use weapons [banned since 1976] in self-defense.”

Most gun owners would agree: it’s absurd that officials should even have the option to prosecute someone for a clear-cut case of self-defense. The passage of Congressman Bartlett’s bill is vitally important.

People have a right to defend themselves. And as it name implies, the purpose of the Citizens’ Self-Defense Act is to protect people who are persecuted for exercising that right.
House Votes to Repeal Gun Ban
— But Stockman not allowed to offer FULL repeal

The House of Representatives ignited a powder keg in March when it voted to repeal the Clinton gun ban by a vote of 239-173. Sparks flew on the House floor as legislators sought to annul the ban on more than 180 types of semi-automatic firearms and the ban on large capacity magazines.

The vote represents a useful first step and is the long-awaited fulfillment of a promise made last year by the House leadership. However, the repeal bill did not go as far as it could have.

“The bill that passed the House will not repeal the entire Clinton gun control package of 1994,” said Rep. Steve Stockman (R-TX). “If we’re truly going to end the era of big government, we’ve got to completely get Big Brother out of our lives.”

Rep. Stockman emerged as a true leader for gun owners rights when he tried to use his bill, H.R. 464, as an amendment to strengthen the bill that later passed in the House. Stockman sought to completely repeal all the gun control which passed as part of Clinton’s 1994 crime bill. Unfortunately, his efforts were rebuffed.
GOA “won a match” on forcing changes in bill

As for the good news, gun owners can take heart in that they accomplished quite a bit. The House was originally set last year to bring H.R. 1488 for a vote — a bill that would have federalized many state gun crimes (thus giving more power and authority to the BATF), increased the ability of federal agents to harass unsuspecting gun owners on firearms charges, and much, much more. GOA, in conjunction with its members and activists, put tremendous heat on legislators and succeeded in getting ALL of these provisions removed.

Indeed, Roll Call, the newspaper of record for events in Congress, stated last October that GOA had “won a match” over forcing changes in H.R. 1488. GOA members had deluged Congress with postcards urging legislators to make changes in the bill. As a result, many legislators publicly stated they would not cosponsor the legislation until the BATF enhancement provision was dropped. GOA grassroots members had truly won a hard-fought victory.

But four months later, there was still no action being taken on the repeal bill by the Henry Hyde-led Judiciary Committee. Thus, GOA worked closely with Rep. Stockman who introduced a discharge petition to secure a vote on H.R. 464. Less than two weeks after Stockman began heavily lobbying other Congressmen to sign his discharge petition, the Republican leadership took action, bringing a repeal bill to the floor.

However, since Stockman is not viewed as a team player, it was not surprising that the leadership went with another — less satisfactory — bill than the Stockman repeal. The chosen vehicle would be H.R. 125, a bill which did not repeal the entire ban.
Stockman goes to bat for gun owners

Rep. Stockman went to the Rules Committee to correct the shortcomings with H.R. 125. (The Rules Committee decides which amendments will be allowed during debate on the House floor.) Stockman urged fellow members to allow his amendment to fully repeal the Clinton gun control package from 1994.

H.R. 125 left the definition of large-capacity magazines in the U.S. Code for the purpose of applying mandatory minimum sentences on people who use such magazines during a crime. This not only demonizes such items, it keeps the definition available for some future regulation or executive order applying special sanctions to owners of these magazines.

The repeal bill which actually passed also does nothing to protect gun dealers from the BATF, which has used provisions in the crime bill to drive tens of thousands of gun dealers out of business since 1994.

Stockman’s amendment (which was based on his bill, H.R. 464) would have remedied these shortcomings by deleting every gun control provision that passed in the 1994 crime bill. Stockman’s pleas, however, fell on deaf ears. The Rules Committee would not allow the Stockman amendment to be offered on the floor.

The Rules Committee members argued they did not want to open up the amendment process and thus allow people like Charles Schumer (D-NY) to offer their own amendments. That is certainly a good excuse. However, the leadership could have incorporated the Stockman provision into the bill BEFORE it went to the floor.

After all, several other sections were added to the bill before it went to Rules Committee. The leadership simply shut Stockman out. Even though gun owners had asked for a FULL repeal bill — and even though Stockman was a co-sponsor of legislation to repeal the gun ban — the leadership did not consult with him, nor did they make any attempt to incorporate the provisions of his repeal bill.
A future problem for gun owners?

As the focus now shifts to the Senate, gun owners should take note of one problem in particular which was added to H.R. 125 before it went to the Rules Committee. Section 3 of the repeal bill contains a provision which serves as an impetus to prosecute even technical paperwork gun violations.

The “Armed Violent Criminal Apprehension Directive” creates a federal task force which would make regular reports to the Department of Justice on the number of gun offenders — paperwork offenders included. The provision will also inflate criminal statistics by defining “armed violent criminal” as someone “who is accused” of committing certain crimes.

GOA opposed this provision when it was first put in H.R. 1488 and was able to secure a 5 year sunset as a result — a sunset that was maintained in H.R. 125.
Repeal “not a priority” for Dole

Gun owners should now press Sen. Bob Dole to make good on his promise to bring a repeal bill for a vote in the Senate. Dole stated last year that the semi-auto ban “is one of my legislative priorities.”

To date, however, Dole has neither introduced a bill to repeal the ban nor has he offered a repeal amendment to any legislation in the Senate. In fact, Dole is quoted by The Washington Times as saying he has no plans to bring up the repeal anytime soon. “I haven’t considered it,” Dole said in March. “It’s not a priority.”

   How the Repeal Bills Stack Up               HR 464  HR 125

Repeals every trace of the magazine ban         Yes     No(1)

Repeals all the anti-gun provisions from
the Clinton 1994 crime bill, especially
those which have been used to force
thousands of gun dealers out of business        Yes     No(2)

1. HR 125, while repealing the actual ban on large capacity magazines, retains the politically charged definition of “large capacity ammunition feeding device,” ostensibly for applying stepped up mandatory minimums, but also keeping it available for some future regulation or executive order applying special sanctions to owners of these types of firearms. If the sponsors of HR 125 want to increase mandatory minimum sentences, they should have done this across-the-board, rather than single out large capacity magazines. H.R. 464 would repeal the ban in its entirety.

2. The 1994 crime bill stated that gun dealers can not operate a business unless “the requirements of State and local law applicable to the business have been met.” This means that the BATF now has arbitrary authority to use zoning laws to shut down gun dealers. And in fact, tens of thousands of dealers have been forced out of business since passage of the crime bill. HR 464 would remedy this injustice; HR 125 does not.
Congress Passes Government Terror Bill
— GOA lobby efforts improve bill, but problems still remain

In April, Congress sent the so-called terrorism bill to President Clinton for his signature. While dramatically improved from earlier versions, the bill still contained many harmful provisions.

“This bill is a travesty,” said Rep. Phil Crane (R-IL) in an interview with The Gun Owners. “It does harm to the Bill of Rights as it needlessly expands the long arm of federal law enforcement agencies.”

Members of both parties pushed this bill hard. On the Democratic side, Rep. Charles Schumer (D-NY) and President Bill Clinton were the flag bearers, insinuating that opponents of the bill were weak on crime.

On the Republican side, Rep. Bob Barr — an important fixture on the Judiciary Committee — lobbied his colleagues and urged their support for the bill. While the final version Barr pushed was extremely flawed, he did serve an important role earlier last year when he stalled the terrorism legislation by hilighting several problems with the bill.

Despite pressure to vote for a terrorism bill, more than two dozen Freshmen Republicans stood tall and refused to violate the Constitution. Several of these Freshmen — and some long-term Congressmen — were staunch pro-gunners who clearly saw the assault being waged on the Second Amendment and the Bill of Rights.

Pro-gun Congressmen voting against the bill included Steve Stockman (R-TX), Helen Chenoweth (R-ID), Rep. Phil Crane (R-IL), Joe Scarborough (R-FL) and others. These Congressmen were among that group of men and women who temporarily killed the terror bill last year when GOA activists bombarded the House with calls and postcards.
GOA members work to save gun industry

Roll Call, which is the newspaper of record on Capitol Hill, reported in February that “Gun Owners [of America] played a leading role in killing last year’s anti-terrorism legislation. . . . Conservative House Republicans — many of them freshmen — backed the [GOA] position and refused to follow Barr.”

As a result, GOA and its members were able to get many, many harmful provisions removed, including a provision that could have put the firearms industry out of business. Indeed, this one provision would have severely punished gun dealers for selling a firearm to someone they should have known was going to use the gun in a violent crime. Without being clairvoyant, gun dealers and individuals would have faced tremendous harassment from the BATF.

Other extremely harmful provisions were eventually removed, including a Schumer amendment to “centralize Federal, State and Local police” (thus bringing us dangerously close to a national police force).

Another provision deleted from the bill would have severely punished gun owners for possessing a laser sighting device while committing an infraction as minor as speeding on a federal reservation. Not only would this provision have stigmatized laser sights, it would have served as a first step to banning these items. Rep. Schumer even stated on the floor of the House that he would like to “ban the device[s].”

GOA lobbied to get these provisions removed, and energized the grassroots in opposition to the bill. Thousands of Western Union mailgrams, phone calls, faxes, letters, postcards and e-mails poured into Congressional offices as a result.

But the battle was immense. Gun owners had to battle two political parties, as well as two branches of government. In the end, the pressure to pass a bill before the anniversary of the Oklahoma City bombing was just too much for Congress. While many improvements were made in the legislation, many problems remained when the dust finally settled. Here’s what passed as part of the final version:

* “Anti-hunter” rifle and ammo study (Sec. 809). Hunters are in the “cross hairs” of an anti-terrorism bill! The BATF will be authorized to study ammunition and recommend which kinds need to be included under the “armor piercing” ban. (It is already well known that much hunting ammunition can penetrate body armor.)

Furthermore, the BATF is required to specifically look at policemen killed with handguns, rifles and shotguns, and thus, this opens the door to calling for the regulation of all gun sales.

* BATF pay increase of $40 million. Originally, this section was specifically written to give the BATF a $100 increase. After loud protests from the gun community, legislators rewrote the section. The pay increase has now been reduced to $40 million and the intented recepient of the money is now the “Department of Treasury” — which of course, is the parent department over the BATF. It appears that legislators have tried to “conceal” their vote for BATF funding by redirecting the money through the Treasury head (Section 816).

“It is outrageous that the BATF, which should be on the chopping block for its gross violations of civil rights, could now receive a huge increase in its budget,” said GOA Executive Director Larry Pratt.

* Federalize State Crimes. Sec. 702 could federalize many state crimes that deal with violence and property, thus tremendously increasing the scope and jurisdiction of the BATF.

Conduct must “transcend national boundaries” and affect interstate commerce.1 But these terms have been defined so broadly that a Bernie Goetz who uses, say, an Italian-made Beretta to defend himself and then affects interstate commerce in the slightest way would trigger federal involvement and a BATF investigation. Moreover, the shooter could now be subject to a 30 year sentence for an “assault with a dangerous weapon.”

U.S. Senator Malcolm Wallop (ret.) who is now the chairman of Frontiers of Freedom pointed out that this section “could easily be abused” in years to come. “Not only will this provision give every federal agency a loophole to begin enforcing certain state laws, it will also permit a kind of ‘double jeopardy.’ That is, federal authorities will now be able to prosecute citizens in certain circumstances, even after they have been acquitted at the state level,” Wallop said.

* Tap ’em, entrap ’em and zap ’em. Title I will severely curtail the ability of gun owners to successfully appeal previous court decisions where evidence was destroyed or suppressed by prosecutors (like in Waco). Moreover, this Habeas Corpus “deform” provision will severely damage the ability of the courts to rescue honest gun owners who are unjustly incarcerated.

As stated by Stephen Halbrook, who has litigated many cases for the NRA, gun owners who are railroaded by anti-gun state judges will have no recourse under the provisions of the terrorism bill,

    “as long as the federal court could not conclude that the state court conclusion was wholly unreasonable according to well-established case law. Given the contempt some courts have for selective parts of the Constitution, particularly the ’embarrassing’ Second Amendment and the ‘incredibly shrinking’ Fourth Amendment, this will be no standard at all”
    New Gun Week, 3/20/96

Pro-gun Rep. Helen Chenoweth (R-ID) introduced an amendment to delete this provision from the bill. She stated the provision threatens gun owners’ rights and does not just deal with death penalty cases, as some have insinuated. According to the Bureau of Justice Statistics, death row habeas appeals account for only 1% of the habeas caseload (BJS, Federal Habeas Corpus Review, September, 1995).

It was perhaps the confusion over this provision which led many Republicans to vote for the bill. Republicans have long advocated habeas corpus reform as a means to prevent death row inmates from “milking” the court system with appeal after appeal.

But as Rep. Chenoweth clearly stated, “the effects of this title are not limited to death penalty cases . . . [but cover] noncapital cases as well, including cases where citizens were wrongfully prosectuted for exercising their constitutional right to keep and bear arms.”

Likewise, Mel Watt (D-NC) stated that this section would severely restrict peoples’ right to successfully bring habeas corpus appeals — appeals which “have been brought by gun owners . . . pro-life protestors . . . [and which] span the whole philosophical gamut of our Constitution.”

* Punish dealers for selling ammunition? Section 706 will punish anyone who transfers “explosive materials, knowing or having reasonable cause to believe” that such explosives would be used in a crime of violence.

The problem is both the “explosive materials” and the “having reasonable cause to believe” language. Could this language apply to ammunition? Experts in the industry certainly think it could. And any anti-gun judge can make a reasonable argument that it does. After all, firing ammunition out of a gun creates a condition that everyone would recognize as creating an explosion.

The question is, how will the BATF interpret this provision? The terrorism bill itself assumes that smokeless powder could be interpreted to be an “explosive.” In Section 732, “black or smokeless powder” is exempt from the tagging of explosive materials study. It would be foolish to exempt an item that could never be interpreted as an “explosive.” Thus, gun dealers are in real danger of having a “reasonable cause to believe” standard — which has already been abused by the BATF — applied to them after selling over-the-counter ammunition.

Already, Gun Owners Foundation has assisted honest gun dealers against the BATF, which has frequently argued that dealers should have known — or had a “reasonable cause to believe” — that prohibited gun purchasers were using fake ID’s. Should every person who sells a gun have to hire a private investigator to check out a prospective buyer? To apply this negligence standard in this context will open the floodgates to additional BATF harassment.

Even as far back as 1982, the Senate Subcommittee on the Constitution stated that “approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.”

This problem will only be excarbated under the provisions of the terror bill. Gun dealers might have to become clairvoyant before selling a box of ammunition. One never knows when the next box of ammo will be used in a violent crime.

Other harmful provisions remained in the bill, including provisions that will: allow the government to use “secret evidence” against certain individuals (Title IV); expand wiretap authority (Sec. 731); and require banks to freeze the assets of domestic groups in certain situations, a tool which could be wielded against politically incorrect (gun) groups (Sec. 303).

To get a more detailed analysis of this bill, you can request the “Government Terror Fact Sheet” from Gun Owners Foundation for $2.50. Simply call 1-800-417-1486 for credit card orders, or write to GOF, 8001 Forbes Place, Suite 102, Springfield, VA 22151. You can download it for free on the Web.

Coalitions FOR and AGAINST the terror bill. The Washington Post stated on April 19 that, “Most of the opponents [in Congress] were Democratic liberals or conservative Republicans.”

Outside the Congress, GOA was joined by more than 20 other groups — including the ACLU and CCRKBA — in opposing the bill. While some in the media labeled this an odd coalition, it was topped only by the strange “bedfellows” supporting the bill.

Rep. Schumer applauded Republicans Hyde, Hatch and McCollum for “the leadership they displayed.” Rep. Hyde returned the compliment, thanking Mr. Schumer “for his cooperation” and for being “very helpful on this bill.”

Rep. Hyde also listed the coalition of groups outside the Congress that supported the terror bill. He mentioned about a dozen groups, including “the Christian Coalition; the Anti-Defamation League . . . [and] National Rifle Association.”
“Hall of Shame” Award: Sen. Bob Dole

The biggest disappointment came when Sen. Bob Dole betrayed gun owners last year. On May 26, 1995, he asked for a “Unanimous Consent” agreement that “no assault weapons amendments be in order to the terrorism bill” (Source: Congressional Record, 5/26/95, p. S 7610). By doing this, Sen. Dole prevented any repeal amendment from being attached to the terror bill.

Attaching a gun ban repeal to the terrorism bill would have done one of two things: it would either have ensured that the gun ban repeal was enacted into law, or more likely, would have ensured the defeat of the terror bill. But Bob Dole took the lead in squelching the gun ban repeal, thus ensuring that the repeal would not stall their efforts at passing a government terror bill.

In the end, the bill passed and was signed into law in late April. Gun owners and the Constitution took a severe beating, while getting virtually nothing in return. Nevertheless, one might still wonder: will the new law, despite all its problems, be a panacea for terrorism?

No. Consider that other countries, such as England and Japan, have more stringent crime fighting laws and recognize fewer constitutional rights for their people. Nevertheless, they still are plagued with acts of terrorism. The answer to fighting crime (or terrorism) is not to force citizens to give up their rights.

Dave Kopel, a well known Second Amendment scholar, noted that politicians who think they have won votes because they voted for a “terrorism” bill will be in for a “rude surprise” when they really see what is behind the curtain.

With the passage of this bill “the American people will suffer a profound loss of liberty, for no real gain in their security,” Kopel said.

1. To trigger federal involvement under this section, the offense must involve “conduct transcending national boundaries” and must be conduct that “affects” — or merely threatens to affect — “interstate or foreign commerce.” We already have much experience with the interpretation of comparable language. In one case, the Supreme Court held that a farmer growing and consuming his own crops was “affecting commerce” because he had NOT purchased his crops from the market. (See Wickard v. Filburn, 1942.) In other words, he had negatively impacted interstate commerce by failing to buy his crops in the open market.
Given this abusive interpretation of “affecting commerce,” can we really count on “transcending national boundaries” to provide any meaningful safeguard in liberal Federal courts? Hardly. The bill merely defines “transcending national boundaries” as conduct “occurring outside the United States . . . [and] in the United States.” Relatively insignificant factors — such as a foreign witness or victim, a foreign gun or article of clothing — could be enough to trigger federal involvement using the Court’s Wickard test.