A Little More Manchin-Toomey Sell Out Enlightenment

[twyacht]

http://www.volokh.com/2013/04/15/the-pro-gun-provisions-of-manchin-toomey-are-actually-a-bonanza-of-gun-control/


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

David Kopel • April 15, 2013 2:20 am

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.

FOLLOW-UP: The proponents of Schumer-Toomey-Manchin are making a big deal about the criminal penalty of up to 15 years for violating the bill’s narrow restrictions on some forms of federal gun registration. A federal prosecution would, of course, have to be initiated by the U.S. Department of Justice, which is to say the very Department which would have violated the anti-registry provision in the first place. Expecting felony self-prosecution seems highly unrealistic. A far more effective anti-registry deterrent would have been a civil cause of action, with liquidated damages and attorneys fees, against any individuals who participated in the creation of a registry.

As for transportation, far more significant than explicit language allowing drivers to take bathroom breaks would have been a civil cause of action, with attorneys fees, for violations of the existing federal statutory prohibition on arresting someone for lawful interstate transportation. Without this remedy, some rogue local law enforcement can continue to violate FOPA with impunity, as they did in the infamous case of Torraco v. Port Authority.

******

Still gettin' the warm fuzzies on compromise? This is worse than something Rotten In Denmark!!!!

[tombogan03884]

With 20,000 useless laws already on the books ANY further regulation of firearms, gun owners, or the acquisition of fire arms is an unacceptable infringement on my Constitutional rights.
Any one who even thinks about going along is a scumbag who doesn't deserve any rights, or to call themself "American.

[justbill]

You're a damn fool if you think Alan Gottleib would do anything to reduce our Second Amendment rights. He's been fighting the Good Fight longer than many gun owners have been alive. And I really doubt his legal team didn't have a direct hand in this. Are we to believe they're so stupid and Dave Kopel is a genius? Finally, use some common sense. Why would two A-rated Senators suddenly throw together a crap bill that will damage their chances for re-election in solidly pro-gun states?

Like Gresham said on Sunday, there will always be vicious naysayers. I guess Dave Kopel has joined their ranks. 

[BBJohnnyT]

Like Gresham said on Sunday, there will always be vicious naysayers. I guess Dave Kopel has joined their ranks. 

I agree.  I respect Kopel and his opinions.  But I respect Gottleib, and his track record, even more.

[jstm]

Never saw a lawyer that could not be bought. On any subject. You do not regulate a right given by God with scum sucking political hacks.

[Sponsor]

[JLawson]

Like Gresham said on Sunday, there will always be vicious naysayers. I guess Dave Kopel has joined their ranks. 

I would not call Kopel a "vicious naysayer" and he certainly is no fool.  Those of us who have worked to protect the 2A fully understand and appreciate Mr. Gottleib's history and the role that the SAF/CCRKBA have played in courtrooms all across the country.  Mr. Kopel is simply expressing his opinion about certain aspects of the amendment's language.  If you truly want to consider this amendment in an honest and open manner then Kopel's concerns should be addressed.

Instead of dismissing Kopel's comments as foolish or vicious, don't you think it would be in our best interests to understand how the M/T language either passes or fails on these issues?  I accept as prima facie the good intentions of the NRA, SAF, and CCRKBA in their efforts to protect the 2A.  I also accept as ABSOLUTE FACT that the Obama administration and the career gun grabbers like Schumer will exploit every weakness they can find to abolish our God-given rights.

It's only prudent to ask a few questions and expect some well-reasoned and articulate responses.

[Jrlobo]

Putting your trust in men is an invitation to betrayal. Think for yourselves. The men you put your trust in are thinking for THEMSELVES, not you.

[Mjolnir]

Putting your trust in men is an invitation to betrayal. Think for yourselves. The men you put your trust in are thinking for THEMSELVES, not you.

Exceedingly well put.

I've found that a very large percentage of people - highly educated people even - do not think for themselves.

The current group I work with seems to be motivated by fear. Fear of standing out in the crowd; fear of not having their peers' approval; fear of being ridiculed; fear of being wrong.

Maybe that's the motivation for all who choose not to think for self. I dunno.

[Solus]

Exceedingly well put.

I've found that a very large percentage of people - highly educated people even - do not think for themselves.

The current group I work with seems to be motivated by fear. Fear of standing out in the crowd; fear of not having their peers' approval; fear of being ridiculed; fear of being wrong.

Maybe that's the motivation for all who choose not to think for self. I dunno.

Been reading The Secret Knowledge: On the Dismantling of American Culture and it speaks to a lot of the motivation of Liberals.  One trait that is explained is the need to be and stay "part of the herd".

[tombogan03884]

Some of you fools will believe anything.

From Alan Korwin
Correction:
When I wrote (Page Nine No. 121) about all the glowing reports that a compromise had been reached in the so-called "background check" bill (the Manchin-Toomey deal), I noted that no one actually knew what was in the compromise so-called "background check" bill being promoted. I was incorrect, as a sharp-eyed Page Nine reader pointed out.

The perpetrators of the scheme (Sen. Charles Schumer plus unnamed staffers), and their representatives doing the press conference (Senators Manchin and Toomey) knew. Thanks for finding this mistake, Brookes. And now, of course, we all know. And it's not good. Funny, the press coverage was so glowing. I have posted the draft bill here. It starts with 11 pages for the $100 million grant from government to government you all heard about. See my report on the gun-registration bill below.

One other error deserves mention. The media, the bill's promoters, and even Mr. Obama, are virtually bragging that "90% of Americans support universal background checks," even though everyone in America knows that NO political issue in this country has 90% support, especially any gun issue.

Plus, the bill being promoted as a background-check bill is a gun-registration bill. Is that what the unnamed survey measured? Did the respondents support the $100 million giveaway, or even know that's what they were saying "yes" to? Of course not. Did they know a paperwork error means prison time? Of course not. The anti-rights people so desperately want to enact their gun grab they will propose absurd stories, and the media obediently promotes them without research or reason. The survey is a lie. The leadership is lying. The media has become an enemy of freedom. This is getting really bad.


////////


"The Brady bill will make the streets of America so safe
that our nation's police will not even need to carry guns anymore."

William Jefferson Clinton, on TV, while signing the Brady bill in 1993,
quoted in Sheriff Richard Mack's book, The Magic of Gun Control.

"When they're not lying they're just ignorant."
--Anonymous, speaking about political leaders.

http://girlsjustwannahaveguns.com/2013/04/the-b-s-bill-the-public-safety-and-second-amendment-rights-protection-act-of-2013-s-649-aka-the-toomey-manchin-background-check-amendment/

The B.S. Bill: Toomey-Manchin Background Check Amendment

By Nancy Keaton   / 15 April 2013   / 58 Comments   

toomey and manchinThe Public Safety and Second Amendment Rights Protection Act of 2013, S. 649 (also known as the Toomey-Manchin Background Check Amendment) is now out and ready to be acted on. However, it begs a few questions and comments. I don’t claim to be an expert on anything, let alone on deciphering legislative baloney but here are my thoughts.

 

Transporting ammunition across state lines. The bill says that ammunition can’t be loaded into a firearm, can’t be directly accessible from the passenger compartment of a motor vehicle, and if it’s transported in another way other than a motor vehicle, it must be in a locked container. So, first guns were inanimate objects with magical powers to act all by themselves, now apparently ammunition is as well. I won’t even go into the stupid argument about the uselessness of not having your loaded pistol in your possession while driving your car to make sure you aren’t a victim of a carjacking or kidnapping.

 

Then there’s the blackmail sections, the “penalties for noncompliance.” The first year a state refuses to participate in this charade, the feds will cut off 10% of their funds for “the Omnibus Crime Control and Safe Streets Act of 1968, then on and on up to 15%. What this looks like to me is the feds are saying, “You’ll do as we say or you wanna see crime? We’ll make sure you see crime.” They must have modeled this idea after closing the White House tours and blaming sequestration, to make sure people are hurt just to make a point. They know all this garbage in this bill won’t help, but they are sure willing to make sure it can hurt.

 

Then there’s the phony Sec. 142, “National Commission on Mass Violence” which is supposed to “study the availability and nature of firearms, including the means of acquiring firearms, issues relating to mental health, and all positive and negative impacts of the availability and nature of firearms on incidents of mass violence or in preventing mass violence.” Firearms are the only weapons used in mass violence? Oh, wait, later on in Sec. 143, Duties of the Commission, they finally say they’re also supposed to look at non-gun incidents of mass violence. Who really believes that a commission will actually study any mass violence not related to firearms?

 

And who really believes that the commission will look at the positive impacts of firearms? If there was any intention to do that at all, the White House would have asked people to write in their stories of survival from self-defense, but all they did was ask people to write about their tragic stories. They also say they’re going to look at the media. Right. Like they initially questioned the impact of violent video games and films and then Obama visited Hollywood and now any time it’s mentioned it gets shot down like it’s not PC to even discuss.

 

They say they will consider the testimony of victims and survivors. But they certainly don’t mean the survivors who protected themselves with guns, or else some of those folks would have been flown to the White House with the Sandy Hook parents. But they have no intention of listening to those “survivors,” only the survivors who fit their anti-gun agenda.

 

Who believes the Commission on Mass Violence will have any outcome or recommendation that doesn’t come out the way they want? Forgive me for thinking this is all BS to look like they are being respectful and compromising. No matter what pretty, “compromising” words they put in a bill, no matter what assurances they give us, like the beginning of the bill where they state, “Congress supports, respects, and defends the fundamental , individual right to keep and bear arms guaranteed by the Second Amendment to the Constitution of the United States” they cannot be trusted. Actions always speak louder than words and Obama and the Democrat’s actions having been absolutely screaming at us. Asking Fox not to air the NASCAR race because it was sponsored by the NRA? That’s their idea of respecting our Second Amendment rights? The Democrat’s idea of compromise is when they get most of what they want, and while this bill looks somewhat ok on the surface, I don’t believe it for a minute. No, even though this is supposed to be a so-called compromise bi-partisan bill, it’s just the same lies, different day.

Is ANYBODY here dumb enough to think that after 20,000 Local , State, and Federal f*ckings that THIS law will be good ?