“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.