April 15, 2013

“The Pro-Gun’ Provisions of Manchin-Toomey are Actually a Bonanza of Gun Control”

I know. Shocking!  Dave Kopel, writing at Volokh:

The Toomey-Manchin Amendment which may be offered as soon as Tuesday to Senator Reid’s gun control bill are billed as a “compromise” which contain a variety of provisions for gun control, and other provisions to enhance gun rights. Some of the latter, however, are not what they seem. They are badly miswritten, and are in fact major advancements for gun control. In particular:

1. The provision which claims to outlaw national gun registration in fact authorizes a national gun registry.

2. The provision which is supposed to strengthen existing federal law protecting the interstate transportation of personal firearms in fact cripples that protection.

Let’s start with registration. Here’s the Machin-Toomey text.

(c) Prohibition of National Gun Registry.-Section 923 of title 18, United States Code, is amended by adding at the end the following:
“(m) The Attorney General may not consolidate or centralize the records of the
“(1) acquisition or disposition of firearms, or any portion thereof, maintained by
“(A) a person with a valid, current license under this chapter;
“(B) an unlicensed transferor under section 922(t); or
“(2) possession or ownership of a firearm, maintained by any medical or health insurance entity.”.

The limit on creating a registry applies only to the Attorney General (and thus to entities under his direct control, such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives). By a straightforward application of inclusio unius exclusio alterius  it is permissible for entities other than the Attorney General to create gun registries, using whatever information they can acquire from their own operations.  For example, the Secretary of HHS may consolidate and centralize whatever firearms records are maintained by any medical or health insurance entity. The Secretary of the Army may consolidate and centralize records about personal guns owned by military personnel and their families.

The Attorney General may not create a registry from the records of “a person with a valid, current license under this chapter.” In other words, the AG may not harvest the records of persons who currently hold a Federal Firearms License (FFL). Thus, pursuant to inclusio unius, the AG may centralize and consolidate the records of FFLs who have retired from their business.

Under current law, retired FFLs must send their sales records to BATFE. 18 USC 923(g)(4); 27 CFR 478.127. During the Clinton administration, a program was begun to put these records into a consolidated gun registry. The program was controversial and (as far as we know) was eventually stopped. Manchin-Toomey provides it with legal legitimacy.

The vast majority of FFLs are small businesses, often single proprietorships. Only a tiny fraction of FFLs are enduring corporate entities (e.g., Bass Pro Shops) which will never surrender their FFL. By consolidating and centralizing the records of all out-of-business FFLs, BATFE will be able to build a list of most people in the U.S. who have bought a gun from a store. The list will not be fully up-to-date for every gun owned by every individual, but the list will identify the very large majority of gun owners.

(The maxim discussed above is sometimes rendered as Expressio unius est exclusio alterius.)

Now for transportation. The 1986 Firearms Owners’ Protection Act immunizes from state law prosecution the transportation of an unloaded and inaccessible (e.g., in the trunk of your car) firearm through a state. 18 USC 926A. So if you are driving from Pennsylvania to Vermont to go hunting there, you can travel through New York State without needing to acquire a NY pistol permit. (Which NY won’t issue anyway, since NY only issues to residents.) Toomey-Manchin includes some explicit language to make clear what was already implicit in FOPA, that such travel can include situations in which, while traveling, you stop to eat, refuel, or rest:

SEC. 128. INTERSTATE TRANSPORTATION OF FIREARMS OR AMMUNITION.
(a) In General.-Section 926A of title 18, United States Code, is amended to read as follows:
“926A. Interstate transportation of firearms or ammunition
“(a) Definition.-In this section, the term ‘transport’-
“(1) includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental to the transport; and
“(2) does not include transportation-
“(A) with the intent to commit a crime punishable by imprisonment for a term exceeding 1 year that involves a firearm; or
“(B) with knowledge, or reasonable cause to believe, that a crime described in subparagraph (A) is to be committed in the course of, or arising from, the transportation.

But notice part (2) of the new definition: a new exclusion for any firearms crime punishable by more than year of imprisonment. In some states, such a crime includes merely not having a state-issued gun permit. So now let’s suppose that the Pennsylvanian is going to Maine. On the way, he travels through Massachusetts. Under current law, FOPA protects him. Under Manchin-Toomey, Massachusetts can arrest and imprison him, and he will have no federal defense. In Massachusetts, possession of a firearm without a state permit is punishable by imprisonment up to to 2 years. Possession outside one’s home or business is a sentence of 2.5 to 5 years, with a mandatory minimum of 18 months. New Jersey and New York City also have penalties of over one year for simple possession without a local permit.

Maybe the Pennsylvanian might qualify for some exemption under the laws of Mass., NYC, or NJ. Or perhaps not. What we know for sure is that today the Pennsylvanian is protected by FOPA, and if Manchin-Toomey passes, he will not be.

[…]

There are fairly small number of attorneys with serious expertise on federal firearms laws. Senator Charles Schumer, who works closely with Michael Bloomberg’s lobby, is likely to have had the full legal resources of that very well-funded organization. Conversely, based on off-the-record inquiry, I have not found any indication that Senator Toomey had any specialist expertise on his own side.

The result of the disparity is “pro-gun” provisions which are actually very strong anti-gun provisions: The supposed ban on federal firearms registration authorizes federal gun registration. The supposed strengthening of FOPA’s interstate transportation protection exempts two of the worst states (the reason why FOPA was needed in the first place), and provides any easy path for every other abusive state to make FOPA inapplicable.

As was pointed out yesterday in the comments, the CCRKBA has broken with the NRA and other pro-2nd Amendment organizations and championed the Toomey Manchin bill — based largely, I’m guessing, on a cursory reading of the text.

I was one of the group’s 650,000 members up until yesterday, when I wrote them and told them to remove me from their membership rolls, their email lists, and any kind of fundraising lists.  And I can’t have been the only one.  If you are an ostensible pro-Second Amendment group and you are receiving praise from Bloomberg’s Mayors Against lllegal Guns, you’re doing something wrong.

When the “gun-control” debate started, I noted that the assault weapons ban and magazine limit were, to the left (and statists on the right) merely gravy if they passed; instead, what the left wanted is a “common sense” expansion of the background check which, down the road, will be tied to some official registry (else, how can it work to save children?).  But rather than wait, the progressives and their lawyers were able to dupe a GOP Senator into co-sponsoring an amendment that looks on the surface like a “reasonable compromise”  — as if the Senate has the power to compromise on the Second Amendment to begin with, though those arguments are moot now that the Roberts’ Court has determined that it can’t possibly be dragged into such ugly business when dead children are involved) — and they were able to peel off an erstwhile major pro-gun group, who is foolishly willing to embrace a Trojan Horse amendment for promises of a few sops to gun owners.

Up until a week or so ago, this ridiculous push for “gun control” was all but dead.  Toomey, though, resurrected it — and Manchin, by way of his yacht and some drinks, has maybe been able to pull in enough GOP Senators to get this thing over to the House.

That was made more likely with the endorsement of the CCRKBA, which will give GOPers and some blue dog Dems (who don’t actually exist) cover to pretend they voted against the “more onerous” of the proposals while passing the “common sense,” “bi-partisan” amendment written up by Bloomberg’s lawyers and Chuck Schumer, and given a public face by Manching and Toomey.

This was, as I speculated early on, the desired outcome for the statists, and the GOP — looking for any way to prove they aren’t pro-grade school mass murder — hustled to snatch defeat from the jaws of victory.

They don’t represent us.  And for all of you who keep mouthing the bromide about how third-parties are unworkable, well, just keep voting for the lesser of two evils.  Because it’s going swimmingly, I can tell you.

Pragmatism!

(h/t nr)

Posted by Jeff G. @ 10:28am
49 comments | Trackback

Comments (49)

  1. But our side really snookered them…oh wait…

    EBL says April 15, 2013 at 10:29 am
    Our side is either incompetent or working for the other side: Claims that Machin Toomey is good for 2nd Amendment rights are wrong.

  2. Byzantium was never a place known for it’s devotion to liberty.

    Regardless of the outcome this legislative process is an ill wind for the Republic.

  3. What the Attorney General is prohibited from doing, the Secretary of Homeland Security will be happy to do in his stead.

  4. Either incompetence in formulating a forthright bill, or incompent attempt to sneak one by.

    I thought this whole competency in government was something that the Ds purportedly had down pat?

  5. I thought this whole competency in malgovernment was something that the Ds purportedly had down pat?

    FTFY.

  6. Advantage is taken. And when advantage taken is no longer tolerated? Well, bad things will happen. Fault, of course, will be assigned to the intolerant. But when bad things happen, fault is hardly even interesting.

  7. Too many laws, too many offices and officers. Multitudes of offices and swarms of officers even, to borrow from a well-known extremist’s document.

  8. That well-known extremist’s document is more and more relevant as time goes on.

  9. The wise men of the Senate are about to rip into the nation’s immigration laws this week. Do you wonder whether the wise men of the Senate consider what happens to unlawful immigrants who find themselves caught in the middle of a civil war?

  10. Toomey is too stupid to remain in office.

  11. And for all of you who keep mouthing the bromide about how third-parties are unworkable, well, just keep voting for the lesser of two evils. Because it’s going swimmingly, I can tell you.

    Because wasting time and money and energy on 3rd parties who can’t even get a quorum on a nationwide *name*, or have no ambitions beyond *legalizing pot*, is just so productive!

    By all means, tell the RNC to go fuck itself. Donate money and time and energy only to the Team R candidate who truly measures up.

    But I would think any of you old enough to remember the “Reform Party” fiasco would know better.

    You’re not 18 anymore.

  12. GO TEAM R! THE ONLY GAME IN TOWN!

    Slogan: You aren’t 18 any more. Haven’t you figured out yet there’s nothing you can do about any of this? Now lie back and think of Britain…

  13. It is they idea of mandatory gun insurance that has me worried about backdoor registration. Sure I could claim that I lost the gun in the lake but, what if you have to show proof of insurance for each firearm at the range when you want to practice? What if you used an “uninsured” weapon in home defense?

  14. Curmudgeon: I’m a long way past 18, and won’t vote for another McCain (which I did, and still regret) or Romney (which I didn’t, and don’t). Not even if that means losing faster rather than slower. It stops here.

  15. GO TEAM R! THE ONLY GAME IN TOWN!

    Given that the “Boll Weevils” and “Blue Dogs” are all but extinct and the Democrats have just about all become Commiecrats, yes, that is the case.

    Curmudgeon: I’m a long way past 18, and won’t vote for another McCain (which I did, and still regret) or Romney (which I didn’t, and don’t). Not even if that means losing faster rather than slower. It stops here.

    Do you still go vote for a Senator Inhofe, or Sessions, or a wannabe Senator Akin or O’Donnell, or whoever the Senator, Congresscritter, state official, or even dog catcher candidate in your jurisdiction who is a true patriot?

    Or, do you petulantly sit at home and vote for no one, or hold your 3rd party breath until you, and the nation, turns “blue”?

    I didn’t say you had to vote for the Romney, although you might have voted for him just to help the Ryan.

    Think about it.

  16. I’ll just point out that (according to Wikipedia, so you know it’s true!) the Republican Party was created in 1854, and a scant 6 years later found itself in the Oval Office… whereupon it began trampling on the Constitution for the ‘common good’, but that’s another issue.

    Point being that a 3rd party doesn’t necessarily mean “decades in the wilderness” — given the increasing rate at which things are happening, not to mention the ever-looming specter of financial DOOM!, a 3rd party doesn’t even necessarily mean a single Presidential election “in the wilderness”, to my mind.

  17. L-l-l-l-lindsay Graham just came out against Toomey-Manchin.

    I’ve got to lie down. I’ve got the vapors.

  18. given the right circumstances, it is not too implausible to see entire state gops switching to a new 2nd party.

  19. If Graham came out against, the Dems have the votes. That’s cover for Graham.

  20. L-l-l-l-lindsay Graham just came out against Toomey-Manchin.

    effin kabuki bs

  21. How about a new slogan for the GOP to go with their re-branding, like “Trail the Wave!” or somesuch nicety?

  22. “hold your 3rd party breath until you, and the nation, turns “blue”?”

    Both parties are “blue”.

    I’m not voting for Kang OR Kodos.

    If you want to call that “petulance”, then feel free to go fuck yourself.

  23. I’ll sit at home and petulantly vote for no one until the country turns blue. Because I kept going out, voting for Republicans, and the country turned blue.

    I figure I’m saving myself the gas mileage.

    Now, if there’s a constitutionalist running as a Republican, I’m likely to vote for him or her. In fact, I gave money to a whole host of them in 2012, some who won, some who lost, and others I now regret supporting.

    The point being, we need to vote for individuals, not parties.

  24. Curmudgeon, I can one up you on the Perot reference. I voted for John Anderson. You remember President Anderson, yes? Ross Perot was always a crazy retard and I never understood the bandwagoneers he attracted.

    Our next presidential election is three years from now. I can tell you I won’t vote for Hillary! (if she’s still alive) or Marco Rubio or Jeb Bush or Chris Christie. Three years is an eternity in politics. We don’t have a clue (well, okay we have some clues) what 2016 is going to look like. If all we get to vote for on “our” side are a bunch of RINOs and sell-outs, then I’m staying home.

    Btw, Jim Inhofe is one of my senators, fwiw.

  25. Now, if there’s a constitutionalist running as a Republican, I’m likely to vote for him or her. In fact, I gave money to a whole host of them in 2012, some who won, some who lost, and others I now regret supporting.

    Uh, that’s what I said. So what is the problem?

  26. I guess Curmudgeon is a pragmatist. There are very few of them left around here.

    I’m certainly not one of them.

  27. Well sure cranky-d, that “think about it” tag is certainly a pragmatic way to address people who do but little else.

  28. Heh. That rankled, for a certainty. Perhaps he is suggesting our thinking is not “right”?

    Too bad. Like cranky, my pragmatism blew away two elections ago.

  29. I’m rather sympathetic to Curmudgeon’s point of view, to be honest. Having seen the shitshow that was and is the Independence Party, I’m left feeling that the choice is between marginalizing the idiots in the GOP, or marginalizing the idiots that will glom on to any new party. Just look at how quickly the Tea Party degenerated into a family-values vehicle for the likes of Bachmann and Co.

    That being said, I don’t see where Curmudgeon and Jeff are that far apart. It’s really a matter of finding good candidates to support. If a sufficient number of good people run in the GOP, it might be enough to rehabilitate the party. If a sufficient number of good people start their own party, it may be sufficient to relegate the GOP to the minor leagues. I guess we’ll see.

  30. Delaware Attorney General Beau Biden said the next step in gun-control is going to be expanding the definition of those deemed mentally unfit to own a gun.

    “One of the things that we’re going to be focusing on in Delaware, including pursuing a background — universal background check which we passed in one — in one House, in the House of Representatives in our state legislature two weeks ago. Moving forward to the state Senate,” Biden said Friday on MSNBC.

    “But the other piece that we’re going to be introducing next week is another part of our package. And that is expanding and broadening the category of folks who have a mental health issue that we believe should prohibit them from possessing a firearm,” he added.

    link

  31. nr, I’ll be interested to see how they plan to disarm the gang-bangers in Dover.

  32. Squid, if a good candidate runs, I will vote for him or her. However, I won’t vote for someone “for the good of the party,” which is my take on what Curmudgeon is suggesting we do.

  33. “You’re not 18 anymore.”

    GOP is not worth voting for anymore. If you don’t like it then bitch to the Boehners and others who made it not worth voting for. You want to play Atlas and get politically fucked in the ass some more, called crazy, and then asked for donations then have fun. I’m done. I don’t give one third of shit who that disappoints. I provided more support than was warranted for too long. The party isn’t 18 any more either. It’s time it found a job and moved out of my basement.

  34. Delaware Attorney General Beau Biden said

    tell me that this is not a nationwide proggtard conspiracy?

  35. Uh, that’s what I said. So what is the problem?

    Uh, because if they don’t have an R behind their name I’ll still vote for them.

  36. I think Jeff is on to the right idea. Blow up the GOP in order to force the liberals into the Democrat party and give the conservatives/constitutionalists/classical liberals a rump around which to organize a genuine opposition party.

    We need to get back to the a choice not an echo thing, because the echo is the choice thing isn’t working.

    Well, at least it isn’t working for the country class. The new elite and would be elitists have things pretty much the way they want them.

  37. “And that is expanding and broadening the category of folks who have a mental health issue that we believe should prohibit them from possessing a firearm”

    And how many different “studies” have we seen over the last few years that reached the conclusion that “conservatism is a mental illness”?

    Laying the groundwork for this day. Cause it ain’t the proggtards owning those icky guns.

  38. Squid, if a good candidate runs, I will vote for him or her. However, I won’t vote for someone “for the good of the party,” which is my take on what Curmudgeon is suggesting we do.

    Your take on me is wrong, Squid’s take on me is right. Enough said.

    Well, maybe not enough said. Like Squid, the preachy Bachmann types don’t exactly move me. But if it is between them and the Commiecrats, I know what side I am on.

  39. As long as I’m being honest, I’ll also note that I’ve pretty much exhausted myself on the trying-to-avoid-the-disaster efforts, and am focusing more and more on the living-through-the-disaster front. These days, when I think about putting together a new party to secure our liberty, it’s in the context of pointing at the smoldering ruins of the old order and saying “Don’t do that.”

  40. Dave, chin up. There are an equal number of studies that cite being a lib as a mental illness. Laymen just don’t hear about them—by design, I’m sure.

    Proggs call the po-lice when they have troubles. What are they going to do when the cops no longer pretend to care about them and they realize they’ve been had?

  41. Delaware Attorney General Beau Biden said the next step in gun-control is going to be expanding the definition of those deemed mentally unfit to own a gun.

    If it doesn’t include his Dad then it’s just bullshit to disarm the peasants.

  42. Uh, because if they don’t have an R behind their name I’ll still vote for them.

    Good luck finding any.

  43. Good luck with voting straight R.

  44. Trying to get us to let our guard down?

    Gun Background Check Deal in Jeopardy in Senate

    It is Yahoo news after all (from ABC with an AP contributor).

  45. And that is expanding and broadening the category of folks who have a mental health issue

    …such as “wanting to own a gun in the first place.” I mean, that’s just crazy!

  46. The compliant media continues to faithfully advance the “overwhelming support exists for extending/expanding background checks” narrative, facts be damned:

    Support for Gun Checks Stays High

    Support for a process providing legal status to undocumented immigrants reached a new high in the latest ABC News/Washington Post poll, while vast public backing for expanded background checks on gun sales held strong – two prominent issues coming to the fore in Congress.

    With a vote on gun control measures pending, 86 percent support extending background checks to gun sales at gun shows and online.

    However, look at the actual survey question:

    (Would you support or oppose a law requiring) Background checks on people buying guns at gun shows or online

    Note that this says nothing about “extending background checks” or “enhanced background checks”. Since we already have background checks on “people buying guns at gun shows or online”, people are basically saying they support the existing laws.

    Where’s the support for “extended” or “enhanced” background checks, ABC? Did you not ask the question because you knew that the answer would not support the narrative? Especially in light of this result:

    By 51-29 percent, Americans in this poll, produced for ABC by Langer Research Associates, think having a gun in the home makes it a safer place to be, not more dangerous [which is up from 35% safer, 51% more dangerous in 2000].

  47. One begins to wonder if Senators Charles Schumer (D-NY), Pat Toomey (R-PA), and Joe Manchin (D-WV) didn’t just take whatever verbiage Attorney General Eric Holder’s staff handed to them and put it in their gun control legislation without even reading it. The Schumer-Toomey-Manchin (STM) bill facilitates undercover sting operations at gun shows to arrest people for conduct they have no reason to believe is against the law. The STM bill lets the Justice Department send people at gun shows to jail for up to five years for a crime they did not even know was a crime.

    Here is the zinger buried in the bill:

    link

  48. nothing says grief like lobbying congress

    Newtown families ask for meeting with Mitch McConnell

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