Firearm & Gun Forum - FireArmsTalk.com > General Firearms Forums > Legal and Activism > A lawyer explains the amendments in the Senate

Reply
 
LinkBack Thread Tools Display Modes
Old 04-15-2013, 03:55 PM   #1
Feedback Score: 0 reviews
 
Join Date: Mar 2011
Location: tucson,arizona
Posts: 427
Liked 160 Times on 102 Posts
Likes Given: 32

Default A lawyer explains the amendments in the Senate

The author of this piece is a lawyer with a lot of Second Amendment experience. If I recall properly, he was involved in both the Heller case and the McDonald case. Here he explains how those amendments to the Senate bill to "protect" 2A rights are actually damaging them.
http://www.volokh.com/2013/04/15/the-pro-gun-provisions-of-manchin-toomey-are-actually-a-bonanza-of-gun-control/

__________________
JWagner is offline  
texaswoodworker Likes This 
Reply With Quote

Join FirearmsTalk.com Today - It's Free!

Are you a firearms enthusiast? Then we hope you will join the community. You will gain access to post, create threads, private message, upload images, join groups and more.

Firearms Talk is owned and operated by fellow firearms enthusiasts. We strive to offer a non-commercial community to learn and share information.

Join FirearmsTalk.com Today! - Click Here


Old 04-15-2013, 04:01 PM   #2
I'm your huckleberry
Feedback Score: 1 reviews
 
Join Date: Feb 2011
Location: Reno,Texas
Posts: 10,211
Liked 6542 Times on 3633 Posts
Likes Given: 27929

Default

Quote:
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 several other states where the relevant penalty is up to one year. Every one of them can exempt itself from FOPA by simply increasing the penalty to 367 days.

The 1986 FOPA is also known as Volkmer-McClure, for its prime sponsors, Democratic Rep. Harold Volkmer of Missouri, and Republican Sen. James McClure of Idaho. Michael E. Hammond was McClure’s manager for the bill. Hammand has identified a variety of other potential problems in Manchin-Toomey.

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.
Beware of the Trojan horse, for it can topple even great kingdoms.
__________________
texaswoodworker is offline  
 
Reply With Quote
Reply

Thread Tools
Display Modes


Similar Threads
Thread Thread Starter Firearms Forum Replies Last Post
This explains our government Yunus Politics, Religion and Controversy 2 09-22-2012 03:38 PM
Washington Times Editorial: UN Threatens 1st and 2nd Amendments Kimber45 Legal and Activism 27 08-02-2010 11:36 PM
That Explains The Change! Dillinger The Club House 3 08-13-2009 11:15 PM
1st and 4th amendments do not apply Chester Politics, Religion and Controversy 5 03-09-2009 09:43 AM
Hating on the First AND Second Amendments Kelly J Legal and Activism 0 09-30-2008 04:18 PM