Sen. Bob Smith Puts FBI on Notice
“Don’t register or tax gun owners!”
Senator Bob Smith (R-NH) is not happy with the FBI these days.
In early June, the FBI released its draft proposals for implementing the Brady Registration Act. What they had to say was, quite frankly, outrageous.
The FBI wants to register gun owners for at least 18 months. They want to impose an additional tax on certain gun owners.
And the agency has insinuated that no gun buyers will be approved if any part of the background check system is down.
Sen. Bob Smith (R-NH) meets with GOA Executive
Director Larry Pratt on the steps of the Capitol
Anyone casually familiar with computers knows that it is quite a tall order to expect every computer to be up and running all the time!
Senator Smith stands up for gun owners
After the FBI draft regulations were issued, Senator Smith took to the Senate floor to express his outrage.
“There is no reason whatever why the FBI would need to retain private information on a law-abiding citizen for any time at all, let alone for eighteen months,” said Smith.
Thus, Sen. Smith put the FBI on notice regarding his intentions to get an amendment placed in an upcoming appropriations bill.
The Smith amendment would defund any attempt by the FBI to use the Brady instant check as a mechanism to keep gun owners’ names, and requires the “immediate destruction of all [gun buyer] information, in any form whatsoever.”
Smith amendment lets citizens “police” the FBI
The Senator from New Hampshire has also added a new wrinkle to his amendment.
Other proposals in Congress that seek to prevent the FBI from registering gun buyers, leave the “policing” of the FBI to Attorney General Janet Reno.
Not the Smith amendment. His proposal specifically allows for aggrieved private citizens to sue the agency and collect monetary damages, including attorney’s fees.
The amendment also defunds the ability of the FBI to collect a tax on gun owners.
GOA Executive Director Larry Pratt publicly thanked Sen. Smith for his leadership in defense of gun owners.
“This is the way to deal with bureaucratic abuse– in the pocketbook. And then to enable aggrieved citizens to sue, and upon winning, to get their attorney’s fees, gives even more of a bite to your proposal.”
GOA pushing for full repeal of Brady registration check
Of course, the ultimate way to prevent gun owner registration is to end the Brady background checks altogether.
And to this end, GOA remains firmly committed to repealing this unconstitutional law.
“As long as the instant check continues in operation, there will always be the potential for gun owner registration,” Pratt said.
“The recent FBI regulations are only the most recent example of how Brady background checks have resulted in officials trying to illegally keep the names of gun buyers in government computers.””.
Supreme Court Ruling Strikes Blow to FOPA; Gun Owners Foundation Files Brief in Support of Second Amendment
Ignorantia legis non excusat
Ignorance of the law is no excuse– or is it?
This is a time-honored legal maxim that is, in many respects, necessary in maintaining a civilized society. Without it, there would hardly be a conviction in a court of law.
For example, one does not have to know what the speed limit is to be convicted of speeding.
But what if a particular law is sufficiently arcane and sufficiently convoluted that few people are even aware of its existence? Further, what if the law in question states that a person must “willfully” violate the law in order to be convicted.
This very question was laid before the Supreme Court in the case of Sillasse Bryan v. United States of America.
Court Strikes Blow to FOPA
On June 15th of this year, the Court ruled that a person could be found guilty of “willfully” selling firearms without a federal license even in the absence of any evidence that the person knew about the licensing requirement.
In so ruling, the Court struck a deep blow against the Firearms Owners’ Protection Act (FOPA).
FOPA, passed by Congress in 1986, provides penalties for a person who “willfully violates” any provision of the Act.
Bryan v. U.S.
Sallasse Bryan was originally convicted of selling 14 firearms in Brooklyn, New York, without a Federal Firearms License. Interestingly, the jury was never informed of the FOPA provision concerning the “willfully” requirement. According to the Supreme Court Syllabus for the Bryan case,
The trial judge refused to instruct the jury that he could be convicted only if he knew of the federal licensing requirement, instructing, instead, that a person acts “willfully” if he acts with the bad purpose to disobey or disregard that law, but that he need not be aware of the specific law that his conduct may be violating. The jury found the petitioner guilty.
The case hinged on the understanding of the word “willfully.” Gun Owners Foundation, the only pro-Second Amendment group to offer a Friend of the Court Brief in this case, framed the question this way:
[Does] conviction for unlicensed dealing in firearms in violation of [FOPA] require proof beyond a reasonable doubt that the defendant knew of the federal licensing requirement and consciously disregarded it, and that the jury be properly instructed on the requirement of proof of the defendant’s specific knowledge? The [GOF] Amicus respectfully submits that the correct answer to this question is “Yes.”
Justice John Paul Stevens, however, writing for the six-vote majority, ruled that a person must only have knowledge that he is in general in violation of the law. Writes Justice Stevens:
Thus, the willfulness requirement of [FOPA] does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required.
Justice Steven’s finding contradicts the clear intent of FOPA. As pointed out in the GOF Brief:
The Firearms Owners’ Protection Act of 1986 (FOPA) is one of those rare congressional enactments whose title does not violate truth-in-advertising principles: It was, in fact, enacted to protect gun owners and enthusiasts from a documented history of abuse by the government in enforcing the Gun Control Act of 1968.
The GOF Brief goes on to quote Second Amendment attorney David Hardy, who was involved in the crafting of FOPA:
[I]t is impossible to avoid the conclusion that Congress was fully aware that its use of “willfully” in FOPA would require proof that the defendant actually knew of the illegalities of his acts.
Scalia, Rehnquist, and Ginsburg Dissent
In his dissenting opinion, Justice Antonin Scalia maintains that Bryan did not meet the requirement of “willfully” violating the statute.
In writing the dissenting view, Scalia, joined by Chief Justice William Rehnquist and Justice Ruth Bader Ginsburg, argues that deference must be given to the defendant if the Court is not clear as to the legislative intent of the law. Scalia writes:
In our era of multiplying new federal crimes, there is more reason than ever to give this ancient canon of construction [deference to the defendant] consistent application.
In cases where knowledge of the law is a prerequisite to conviction, ignorance of the law can, and should, be a legitimate defense.
Unfortunately, six members of the Supreme Court have, with this decision, redefined “willfully violate” and thus will encourage government bureaucrats to harass and prosecute law- abiding gun owners who have not committed to memory the convoluted gun laws of this nation.
FIVE-DAY WAITING PERIODS END IN NOVEMBER
BRADY LAW SET TO CONTROL ALL LONG GUNS
Industry and Public Basically Unaware of Total Overhaul
by Alan Korwin
Do you remember the enormous burst of handgun sales that the Brady law stimulated? In the days before Brady took effect, factories were working three shifts to meet the demand. President Clinton was hailed, somewhat ironically, for bringing about the greatest sales year in the firearms industry’’s history.
Well it’s about to happen again, this time with long guns.
America is operating under what the Bureau of Alcohol, Tobacco and Firearms calls the “temporary” Brady requirements. Waiting periods, white forms, handgun sales, local background checks—these are temporary measures under federal law 18 USC §922 (s), while preparations take place behind the scenes. The temporary measures were scheduled to sunset in five years. How soon those five years have passed.
Beginning on the day that is 60 months after the enactment of the Brady law, the temporary rules expire so the permanent requirements can take effect, under 18 USC §922 (t). That date is Nov. 30, 1998, a mere few months away.
Brady “Part 2” to cover shotguns and rifles as well as handguns
When the Brady “Part 2” rules come on line this year, all gun sales– long guns and handguns– will fall under the federal control of “national instant background checks.” The centralized federalization of all gun-sale records will be complete.
Technically, the new system cannot kick in until 30 days after the U.S. Attorney General notifies all FFLs that the National Instant Criminal Background Check system is up and running. A turf war over who would run the system has left the FBI in charge– and they plan to base the computer operation out of their Clarksburg, West Virginia data facilities.
Whether the FBI will be ready on time is anyone’s guess. Speaking at the January SHOT show convention in Las Vegas (the largest firearms-industry show in the world), BATF and other authorities alternately said the system would definitely be ready, or that they weren’t sure, or ask the FBI (which states in a brochure that they’ll be ready). The anti-rights people at Handgun Control have issued demands that federal authorities step up efforts to implement the system, which they decry as woefully far behind.
In addition, every Federal Firearms Licensee (FFL) in America will now have to “enroll” with the FBI to use the system, unless their states’ police agree to cooperate with the FBI’s plans.
One thing noted by BATF senior counsel Stephen R. Rubenstein, and clearly stated in the first sentence of the Brady law, is that the temporary requirements do expire 60 months after enactment (on Nov. 30, 1998). If the insta-check system isn’t up by that time, as Rubenstein correctly noted, there will be no Brady requirements at all for a period of time. Whether Congress would allow this to happen is a crucial issue, and the ensuing debates to create law where there is none presently would bear watching. The expiration date will provide a leverage point for interested parties to introduce changes.
Once the new system (dubbed NICS by the FBI) is up, an instant national accounting of gun-sale volume will permanently flow through FBI hands. Based on mandatory direct contact from dealers, every single purchase, city by city, will be tabulated. Cleveland has a gun show this weekend, it will show. Nebraska is slow right now, those numbers, like election returns, will be available to law enforcement and others privileged to view the data.
Manufacturers who would like to watch retail sales activity could conceivably glean such data on a minute-by- minute basis– though who will have access to the information is unclear. It will be like no other sales data collection system in existence in America.
All this commercial data is being collected, of course, in the name of stopping crime. As the sales information comes flooding in, the FBI will move into a new arena as the largest, most sophisticated warehouse of point-of-sale records for any product in the world.
FBI wants to keep all gun buyers’ names
The law requires the FBI to obtain complete ID on all buyers, but then to purge this from their files. It is unknown if there are loopholes or other conditions that will allow them to avoid the purge; and they have indicated they will keep gun buyers’ names for at least one and a half years.
As a side note, fingerprints submitted to the FBI for concealed-carry-license background checks, despite strict federal bans on registry of gun owners, are cataloged by the FBI until the applicant reaches 99 years of age, the Bureau reports.
As with the current Brady system, no pursuit of persons denied firearms is planned. Statistics on the numbers of denials, by the hour or day or month, will be available of course (though it’s not clear if such news will be released).
Whether anyone will be dispatched to investigate any felons, fugitives or other misfits, who must provide their names and addresses to get into the system in the first place, is no more likely than under the current regulations. Under that system, somewhere between 44,000 prohibited possessors (the BATF number) 186,000 (the Justice Dept. number) and 250,000 (President Clinton’s proclaimed number) were denied handgun sales, with only seven arrests and four prosecutions.
When long guns are added to the handgun totals, an awful lot of dangerous people may be identified– and then left to go about their business. This puzzles some observers, especially since Attorney General Janet Reno announced that arrests are down for the second year in a row (despite adding 100,000 new police to departments nationwide).
The cost for the new system, which will catalog every honest retail sale of a firearm in America, has been set by Congress at a staggering $200 million.
Alan Korwin is a full-time free-lance writer and author of six books on gun law, including Gun Laws of America– Every Federal Gun Law on the Books with Plain English Summaries.
Carry Bill Advances Despite Flaws
With Democrats decrying “gun insanity” and Republicans branding opponents as “liberal pacifists,” the House Crime Subcommittee approved legislation in June that would let qualified citizens carry a concealed handgun across state lines.
The House subcommittee passed H.R. 218 by a 7-2 vote, but some gun owners chided House Members for choosing the weaker of two possible bills.
“While the subcommittee bill has some good points, it will actually lock in a system of registering gun owners,” said GOA Executive Director Larry Pratt.
“If we are going to go on the offense, and I certainly think we should, why not start with a completely pro-gun bill?”
Last year, Rep. Ron Paul (R-TX) introduced a squeaky-clean concealed carry bill. Paul’s bill (H.R. 2722) is also in the House Crime Subcommittee, but has not yet been acted on.
“Rep. Paul’s bill also allows citizens to carry their firearms out of state. But it does so without giving us a mandate for gun owner registration,” said Pratt.
“Gun owners should ask their Representatives to support real concealed carry reform. Support the Paul bill!”
|Concealed Carry across state lines
|Provides for carrying handguns across state lines
|Punishes states for being “too pro-gun”1
|Locks in a system of gun owner registration2
|Introduces the Federal “camel’s nose” into the “tent” of state affairs3
1Citizens who come from states where they can carry firearms as a matter of constitutional right (that is, where they don’t have to get any prior government permission, pay any taxes, or give any fingerprints to the authorities) will not be able to carry outside of their state under H.R. 218. This will put tremendous pressure on genuine right to carry states to adopt a permit (or registration) system, and will undermine efforts in states around the country where legislators are now trying to adopt permit-free carry legislation. H.R. 2722, however, DOES NOT require one to have a carry permit to enjoy reciprocity in another state. Rep. Paul’s bill is “Vermont-style friendly” so that a citizen from any state which recognizes the RIGHT of citizens to carry– without permits, fingerprints, taxes, fees, etc.– can travel to another state and enjoy that same right of self-defense.
2H.R. 218 offers carry reciprocity only for citizens that have state issued permits. Thus, H.R. 218 will “lock-in” a system of registering gun owners that requires a decent citizen to get permission from government officials before exercising their right to bear arms. Rep. Paul’s bill will allow citizens from genuine concealed carry states (such as Vermont and in most of Montana) to receive the full benefits of reciprocity.
3H.R. 218 establishes a “National Standard” for carrying concealed firearms– a concept which could incrementally result in the further federal regulation of state concealed carry laws. [For example, another carry bill in the Congress (H.R. 339) contains this same phrase and, not surprisingly, actually imposes federal gun restrictions upon certain states.] Rep. Paul’s bill steers clear of any language that might result in the federal government dictating to states how they should treat concealed carry for its own citizens. Unlike H.R. 218, Paul’s bill DOES NOT create a “National Standard” for carrying concealed firearms. It simply applies the Constitutional “Full Faith and Credit” section (Article IV) to the carrying of such firearms. Thus, under H.R. 2722, the right of a citizen that is recognized in one state– such as the right to bear arms would also be recognized by every other state.
Rights v. licenses
H.R. 218 originally applied only to off-duty and certain retired law enforcement officers. But subcommittee Chairman Bill McCollum (R-FL) offered an amendment to extend the bill to members of the public that are duly licensed.
Herein lies the problem. The bill only allows licensed individuals to carry out of state. No allowance is made for citizens from genuine concealed carry states.
Many states are considering the advantages of a “Vermont-style” system, where citizens can carry a firearm as a matter of right, without getting permission or being registered . . . without paying a fee . . . or without going through any kind of government-imposed waiting period. Incidentally, Vermont also has the lowest crime rate in the entire country.
The subcommittee bill makes no provision for “Vermont-style” states. Rep. Paul’s bill does.
“A licensing system forces citizens to get permission from government officials before they can exercise a right,” said Pratt.
“Whenever you do that, you give a bureaucrat the chance to wrongfully deny someone their rights.”
Licensing a right can lead to abuse
Indeed, abuses have occurred even in the “shall issue” states, where residents are supposedly entitled to concealed weapon permits if they meet basic criteria set in law.
In Oregon, for example, officials have been known to revoke concealed carry licenses because of one’s political views.
In other states, officials have “raised the hurdles” in order to get permits, including, requiring citizens to get fingerprinted when there is no statutory authority to do so.
Other ways of “chilling” this Second Amendment right could include drastically raising the license fees or making the application process for a license more difficult.
“But perhaps the greatest danger posed by a licensing system is that it is pure registration,” Pratt said. “And we have already seen in New York and California how registration can lead to gun confiscation.”
Should the McCollum amendment continue to advance in Congress, Gun Owners of America will ask Representatives to amend it with the Paul language. Please stay tuned.
Pennsylvania General Assembly passes “Trojan Horse” Gun Bill
by Andy Barniskis
On June 8, the Pennsylvania General Assembly passed SB 543, a fast-tracked piece of legislation that is being widely touted as providing needed improvements in state firearms legislation.
While the law does contain a few needed provisions to improve the current Uniform Firearms Act, like the fabled Trojan Horse, its attractive exterior concealed some major threats.
And, as with the Trojan Horse, its designers contrived to get it inside our walls as quickly and smoothly as possible, pushing it through the legislature in the few days while most of Pennsylvania’s grassroots activists were distracted by the entertainment at the NRA Meetings and Convention in Philadelphia.
SB 543 Mixes a little Good with a Lot of Bad; Net Result is Lost Rights
SB 543 did make needed changes, such as delaying implementation of the state Instant Background Check system, and codifying that owing delinquent traffic fines did not make one a “fugitive from justice.”
But contrary to what is being widely reported, SB 543 made the situation worse for gun owners subjected to unjustified mental health commitments under Section 302 of Pennsylvania’s Mental Health Procedures Act, by mandating the loss of firearms rights for anyone accused of mental instability, upon the signature of just one doctor.
It also codifies, at the state level, the infamous federal Lautenberg Amendment, defining state procedures “for purposes of the enforcement of 18 U.S.C.” In other words, Pennsylvania adopted legislation for the purpose of facilitating enforcement of federal gun control laws.
SB 543: Lose Your Gun Rights With the Stroke of a Pen?
The new law is being falsely reported by it supporters as “establishing due process for involuntary commitments to mental health facilities.”
What it actually does is cite Section 302 of the Mental Health Procedures Act, which in Subsection (a) allows a single physician to certify that a patient needed emergency examination at a treatment facility.
In other words, if a gun owner is involuntarily brought to a mental health facility and a doctor admits him or her, that one doctor’s “certification” disbars the patient from firearms ownership!
Nothing like “due process” is required at all; merely the signature of a single doctor.
This actually is worse than the present system, under which gun owner Russell Laing was wrongfully committed and lost his gun rights even after being declared mentally competent by examining physicians. Laing’s case is currently in litigation, based on ambiguous language in Pennsylvania’s Act 17; under the new law, he would have no grounds for appeal, because his “certification” as requiring examination would clearly disbar him from gun ownership.
Legislative Debate Reveal SB 543 Supporters’ Duplicity
Debate on these provisions, and resistance to passage of the bill, came thanks to the efforts of Rep. Teresa (Brown) Forcier of Crawford County, who pointed out to her colleagues in the House of Representatives that despite NRA support for the bill, four NRA referral attorneys had analyzed the bill and said it made the mental health provisions worse.
Her testimony was derided by Rep. Robert Godshall of Montgomery County, who stated that he didn’t know what “NRA referral attorneys” meant, and “the NRA was a part of drafting the legislation.”
But Rep. Dan Surra of Elk County commented that, as with the passage of Act 17, it was apparent the legislature did not know what many of the provisions in the legislation meant, and they should delay passage until the full meaning of the law was understood.
Nonetheless, a vote was taken, and SB 543 was passed by the House of Representatives, 126 to 60.
Mobilization Needed to Take Back Gun Rights
Gun owners should not delay seeking changes to the objectional portions of this new legislation. You should contact your state legislators immediately, and tell them you want the law changed to require true “due process” by a court of law before anyone is disbarred from their constitutional rights resulting from accusations of mental incompetence.
While you’re at it, remind them of the Tenth Amendment of the Bill of Rights, and ask them why it was necessary for Pennsylvania to write state legislation to facilitate enforcement of very objectionable federal anti-gun law, in the form of the Lautenberg Amendment.
Andy Barniskis is chairman of the legislative committee of the Bucks County Sportsmen’s Coalition in Pennsylvania and is a past president of the Cast Bullet Association.
Another Senator Dumps Hatch’s Horror Bill
Senator Rod Grams (R-MN) has become the most recent Senator to jump off Senator Orrin Hatch’s anti-gun crime bill (S. 10).
This brings the total number of defectors to seven.
Despite the fact that several Senators are distancing themselves from the bill, Sen. Hatch is still working to bring S. 10 up for a vote sometime this summer.
Some positive changes have been made to the bill, but not nearly enough to remove all the Second Amendment problems in the bill.
Gun Owners of America will keep you updated as more information becomes available.
|New! GOA/GOF Secure Online Ordering
|Hear Larry Pratt In Person
|Activists can now join GOA, upgrade to Life membership, contribute towards specific legislative goals, and order resource materials through the GOA website.
GOA has received numerous requests to add this feature. We have waited until we could be certain that your transaction would be secure. The system uses SafeSell? technology to encrypt credit card information during transit.
|Valley Forge Convention Center will be the site of a 1000-table Gun & Knife Show on August 22 and 23. The Convention Center is located at the entrance to the Valley Forge Battlefield. GOA Executive Director Larry Pratt will be speaking on Saturday, August 22. Admission will be $5.
A Barrett Light 82A1 50 caliber rifle, valued at $6,800, will be raffled during the event. For further information, contact Freedom Promotions by phone at 1-717-752-6178 or by fax at 717-752-1069.
“The Shooting Show” Has a New Location
GOA member Johnny Rowland’s “The Shooting Show” has a new satellite location. It is now on Telstar 4, Channel 6 at the same time, 7:00 p.m. central.
|Visit GOA at these Preparedness Expos:
Big John Expo Center
Denver Merchandise Mart
|For more information, call GOA and ask for Kathleen Gennaro at 703-321-8585.