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Senator Hatch’s Transport Bill is a Nice Thought, But Useless

Senator Orrin Hatch has introduced S.618, which purportedly enhances the FOPA safe travel provision, but this bill suffers from the same flaw that the Manchin-Toomey version did:

(b) In subsection (a), the term ‘transport’—

(1) includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, or any other activity incidental to the transport; and

(2) does not include transportation—

(A) with the intent to commit a crime; or

(B) with knowledge, or reasonable cause to believe, that such a crime is to be committed in the course of, or arising from, the transportation.

(c)(1) A person who is transporting a firearm, ammunition, magazine, or feeding device may not be arrested or otherwise detained for violation of any law or any rule or regulation of a State or any political subdivision thereof related solely to the possession, transportation, or carrying of firearms, ammunition, magazine, or feeding device unless there is probable cause to believe that the person is doing so in a manner not provided for in subsection (a).

I think they need to make it much clearer that subsection (b)(2)(A) and (B). It is a crime to transport hollow point ammunition through New Jersey. It is a crime to transport a 15 round pistol magazine through New York. It is a crime to possess any firearm in Washington D.C. if you’re not a resident of DC and have not registered it. So when someone transports through these states, they are technically committing a crime in that state. Also, people will tend to have firearms discovered when they got pulled over for a traffic offense, which is technically a crime. Do you lose protections then?

I get what Hatch is trying to accomplish here, but given the resistance of the jurisdictions this will apply to, it needs to be iron clad. If the bill gives hostile local judges the room, they will take it.

Hatch probably doesn’t want to surrender the ol’ law & order that Republican love themselves so much of, but I don’t see a way to save (b)(2) that doesn’t risk nullifying the entire purpose of the law. It needs to be removed or this bill is a waste of everyone’s time.

33 Responses to “Senator Hatch’s Transport Bill is a Nice Thought, But Useless”

  1. Whetherman says:

    “I get what Hatch is trying to accomplish here…”

    Me too. Pitching legislation that everyone knows will fail, but allows the Republican Party to maintain its Friends of the Gun Owner panache.

    “We tried, but those dirty rotten progressives and activist judges. . .”

    • Alpheus says:

      I’m not quite sure if you get what Senator Hatch is trying to accomplish here. He’s rolling right in preparation for his next re-election campaign. I’m not sure if that’s an explanation for the flaw, but it certainly is an explanation for the overall bill…

      Utahns generally know that Senator Hatch has three phases in each term: a left-leaning one, after he’s been re-elected, a centrist one, as elections get a little closer, and a right-leaning one, in the last couple of years before he faces re-election.

      I’m disappointed that we didn’t primary him last time around, but he’s more politically astute than former Senator Bennett, and he had advanced warning (having seen Senator Bennett get primaried just two years prior).

      We’re going to have to work harder to primary him, assuming he doesn’t retire. (He was supposed to retire six years ago, but then he made the case “But Washington DC needs me!”…)

      /cynic rant

      • Archer says:

        Senator Hatch is right, of course; Washington D.C. does need him.

        Whether Utahns need him is another matter entirely….

  2. Alpheus says:

    I think I understand the motivation for the “transportation with intent”, and even see the attraction to include the language, but the more I think about it, the more I agree that the language needs to be pulled out, and that there is no need for the language to be in there.

    How do you prove intent to commit a crime? And what kind of crime should be sufficient cause for removing the gun? If you have evidence that such a crime is going to be committed, then why can’t you arrest the person right there, with or without the gun transportation issue?

    I can’t help but think that this is a borderline “thought crime”, and this is particularly problematic when some people have the mindset of “the person has a gun, ergo the person intends to commit a crime”.

    I wanted to say that passing the good national reciprocity bill would make this superfluous, but then I realized that it should be legal to transport firearms, even if you don’t have a concealed carry permit. It’s absurd that someone can be arrested for getting stuck overnight in a non-American State because of unforeseen airplane issues.

    • Whetherman says:

      “It’s absurd that someone can be arrested for getting stuck overnight in a non-American State because of unforeseen airplane issues.”

      Historically, states rights have permitted a lot of absurdities, until such time as the SCOTUS decided that those absurdities violated individuals’ constitutional rights.

      • Alpheus says:

        I think we sometimes banter around terms like “States Rights” without fully understanding what they mean. A while ago I encountered an explanation that States don’t have rights, they have powers; combine this with the requirement by the Constitution that all States be Republics, one can argue that States that violate rights ought to be stopped.

        I’m willing to grant States to do certain things that I might even disagree with — the so-called “rights” — but a State can only do so much before it’s no longer a Republic established to protect life, liberty, etc.

    • Sebastian says:

      Intent is something the legal system has had to deal with for centuries. If you cross state lines and murder your ex-wife who lives in the next state, you can divine whether you intended to do so. If you rob a bank, you can infer intent from that.

      But in these cases, does it really matter whether you can charge them with transporting the gun to the scene? Either way, one would also presume stopping for a bank robbery or murder wouldn’t be an allowed accommodation to traveling.

      • Alpheus says:

        I’m tempted to limit the “intent” part to an intent to commit a felony, but this *still* has the two-fold problem that the definition of “felony” has been watered down over the years, and that many states consider a violation of their firearms laws to be felonious.

        So even that is a bad standard.

  3. TexasCharlie says:

    Most states have rules that require you to register your car in a state if you take up residence there for more than a certain period of time. The ‘temporary lodging’ exemption should be more than overnight. I live both in Texas and Washington State and sometimes transport firearms while driving between the two. I avoid California when transporting firearms, but would like to be able to traverse that state at a pace that allows me to visit a national park if two and see my cousins in San Diego. Maybe ‘temporary’ should be defined as up to one or two weeks.

  4. TexasCharlie says:

    (b) (2) A and B should be limited to crimes that are ‘malum in se’ and exclude crimes that are ‘malum prohibitum.’

    • Sebastian says:

      That’s still subject to interpretation. Forcible felony is something more defined under the law…. if they insist on keeping that in there.

  5. Archer says:

    Simple solution:

    Eliminate (b)(2) entirely, and amend (b) to read, in full:

    (b) In subsection (a), the term “transport” includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance or repair, an emergency, medical treatment, or any other lawful activity incidental to the transport.

    Stopping for lodging, food, fuel, vehicle maintenance or repairs, etc., are lawful activities. So is pulling over and stopping for a traffic officer, for that matter; indeed, the crime would be to keep driving.

    The only other immediate thing I would change is to add teeth to (c)(1) — or maybe add it as (c)(2) — by allowing people wrongfully arrested for “crimes” that FOPA declares are not crimes to sue for damages, targeting the full chain of command if necessary.

    Just my $0.02.

    • HSR47 says:

      “Any otherwise lawful activity…”

      The key is to write the statute such that it takes the guns out of the equation.

      In other words, the courts need to be forced to apply a two question approach to these cases:

      “Was the individual committing any felonies unrelated to his/her possession of firearms?”

      “Did the individual comply with the federal standards set out in the relevant immunity statute?”

      The statute should be written such that it applies at least as long as the answers are “no” and “yes” respectively.

  6. TS says:

    Also, people will tend to have firearms discovered when they got pulled over for a traffic offense, which is technically a crime.

    Are infractions considered crimes? I always thought that term applied to misdemeanors and felonies.

  7. Sigivald says:

    The “banned gun items = crime” thing is rough.

    But “Also, people will tend to have firearms discovered when they got pulled over for a traffic offense, which is technically a crime. “, not so much.

    “Infractions” (traffic “offenses”/”violations” that don’t involve arrest or jail) are not “crimes”.

    The exact wording varies by state; here in Oregon, for instance, an “offense” covers “crimes” and also “violations”.

    Crimes involve the potential for imprisonment or explicit felony or misdemeanor status (ORS 161.515).

    Violations are (ORS 153.008) more complex in definition but round down to “not a Crime”; anything where the only punishment is a fine or non-imprisonment punishments.

    AFAIK every state has a similar thing, and I would not be surprised if the Federal government does as well.

    It should be easy enough to craft a statute that only applies to “actions against the law that involve jail time as punishment or are explicitly felonious”*.

    * Because misdemeanors are BS.

    • Whetherman says:

      ” here in Oregon, for instance, an “offense” covers “crimes” and also “violations”.”

      The shortcomings of legal language are why the federal standards for disbarment from firearms ownership are based on potential period of incarceration (“crimes punishable by. . .”) rather than if the infraction was called a “felony,” “misdemeanor”, etc. As you probably know, there was a period in the early 1970s when conviction of DUI/DWI in Pennsylvanian disbarred a person from future firearms ownership under federal law, because the maximum sentence codified was two years. Those people remain disbarred — the last I heard.

      I also reflect that some years ago, when the police got tired of making unreasonable searches on the street and having the subsequent convictions overturned, our General Assembly gave the anti-constitutional cops a gift by codifying that a small number of summary offenses (like “blocking traffic” = walking in the street) custodial offenses, i.e., offenses that a suspect could be arrested for. Courts had decided that cops could search people they were placing under arrest, for the cops safety; and anything found in the search would be evidence admissible in court. Now when a cop sees a “usual suspect” he can arrest him/her for one of the summary offenses and make a search. Even if the summary charge is later declared absurd and thrown out of court, the products of the search remain admissible evidence for any charge related to a crime detected by that search.

      Funny how much “law and order” pols hate our constitutions.

      Last, if you really want to have fun, tell a Trumpkin that in most cases, an illegal alien actually hasn’t committed any crime, which in fact is usually the case.

      • Will says:

        You seem to be overlooking the fact that simply crossing the border illegally is a crime. If you didn’t enter legally, or if you overstay a legal short term visit, you have committed a crime. Why do you think they are labeled an “illegal” alien?

        • Whetherman says:

          I can’t find the original source for the following, but I’ve found the phrase repeated at dozens of sites — for whatever that’s worth.

          Myth: Anyone who illegally enters the U.S. is a criminal.

          Only very serious misbehavior is generally considered “criminal” in our legal system. Violations of less serious laws are usually “civil” matters and are tried in civil courts. People accused of crimes are tried in criminal courts and can be imprisoned.

          Federal immigration law says that unlawful presence in the country is a civil offense and is, therefore, not a crime.

          The punishment is deportation. However, some states — like Arizona — are trying to criminalize an immigrant’s mere presence. As the laws are currently written, illegal entry into the United States does not make one a “criminal”.

          Here is one source. Google the phrase in italics above and you’ll find dozens of others.

          I find the question of semantics, i.e., the words used to describe something, entirely hand-waving, but that’s the world we live in and the subject that started this thread. E.g., calling a parking ticket or other summary offense “criminal” is technically true, but “criminal” connotes something not quite appropriate for most recipients of them.

          • Sebastian says:

            That’s true. It’s a civil offense federally, which in the federal system is not considered a crime. It’s also a civil offense to take certain contraband on an airplane. It’s accurate to say someone is in the country illegally, or someone illegally smuggled 10oz of liquid on board an aircraft. Just that the penalty is a fine (and in the case of being illegally in the country, deportation), rather than a misdemeanor or felony conviction. But to say someone here illegally is a criminal… well…. in the sense that we’re all criminals, sure.

            • Whetherman says:

              That’s part of my point about semantics and word choices. If I selectively chose neighbors on my street and started referring to them as “criminals” because I knew they had gotten parking tickets and citations for moving violations, I would be technically accurate, but I would also be suggesting I had another agenda regarding them.

              By implicitly accepting the inflation via semantics of one class of violation, when applied to others, we are endorsing when the same thing is done to us. I’ve known a number of people who possessed firearms that were “illegal” in one way or another, but none of them would I have regarded as “criminal.” Yet we all know what the media does with semantics, when every now and then such an innocent violation comes to light.

          • TexasCharlie says:

            Actually ‘improper entry’ (e.g., sneaking across the border, lying to an immigration officer, submitting false documents, etc.) is a crime per federal immigration law. However, ‘unlawful presence’ (e.g. over staying your visa)is merely a civil offense and not a crime.

      • SDN says:

        When either Whetherman or Sebastian put up their addresses and an invitation for Abdul al-Jihadi to move in, their commitment to open borders can be labeled something other than blatant hypocrisy. Until then…..

        • Sebastian says:

          First, I’m not open borders. I’m just against hating on immigrants. Second, that’s an absolutely silly argument even against someone who does believe in open borders. It’s like arguing someone in favor of single-payer health care is a hypocrite if they aren’t offering to treat people themselves.

          • Whetherman says:

            “I’m just against hating on immigrants.”

            That’s entirely my point. I still remember the oral histories of my Irish immigrant g-grandparents, and European immigrant grandparents (first-hand, in their case) of being hated on and exploited when they came here. I’d be violating my heritage and their memories, if I fed into that hate today. (I always take note that Real Americans loved us all to pieces as soon as they needed cannon fodder for their armies, but that’s another issue.)

            But to go off on a tangent about “hate”: There never has been a more dependable tool for mind-control, than hate. And ironically I have never seen it be more effective than when used against gun rights advocates. I have a short list of stories of rabid gun rights advocates, who would cave in on some issue of gun control, if fear of what [n-words] or [sp-words] might do with guns was invoked.

            I started off “hating hate” for only that reason, but eventually came to hating it for its own sake.

  8. Flight-ER-Doc says:

    Nice, but useless pretty well sums up Hatch.

    Except for the…you know, nice part.

  9. Richard says:

    The problem is that CA, NJ, NY etc are not part of America anymore. People think they are and inadvertently violate the law. The authorities in those states will use any expedient to preserve their oppressive laws. Tinkering with Federal law will never fix this problem.

    • Sebastian says:

      Then nothing will. Do we just give up?

      • Alpheus says:

        I think at some point we do. We do it by doing our best to enable a peaceful secession. But before it comes to that, though, we need to do all we can to fix things.

        A good transportation may not fix the problem with Blue States, but it will at least help people who wish to travel from one American State through a Blue State to another American State.

        National Reciprocity will make good inroads.

        Having good justices on the Supreme Court will help too; I really hope that Gorsuch will be good (and since it’s pretty clear that he’s a Constitutionalist, he’s probably going to be ok, at least, I hope), and I also hope that Trump will be able to replace a couple of other wingbats with people who would be good on the issue, but since Trump is playing the role of Republican, there’s a good chance that he’ll select a dud or two in the future as well…

        So long as tinkering with Federal Law is all we’ve got, we need to pursue it. But we also need to find ways to increase Gun Culture in places where guns are practically banned. That’s the long-term solution — and it may very well be the solution to expanding gun rights outside of the United States as well.

    • Whetherman says:

      “The problem is that CA, NJ, NY etc are not part of America anymore.”

      Remember that there was a period of roughly a century when the Old South wasn’t part of the United States, either, in the sense that you mean that. Different issues, same principle. “States Rights.”

      The imperfect solution came from a combination of reinterpretations of the constitution and new federal legislation.

      I don’t want to sound like I’m heading for advocating any particular solution with that; I’m just saying that historically the situation is hardly unique.

      • Richard says:

        True but as bad a Jim Crow was, it wasn’t slavery and Jim Crow in 1950 wasn’t as repressive as it was in 1890. After Federal civil rights laws started, things got gradually better. With the current anti-self defense states, the gap between them and America is widening. I suppose the Feds could start enforcing the law but the Appeals courts are running amok and there is no will on the Supreme Court to stop them. And don’t tell me Gorsuch will fix this because the problem was there before Scalia died.

        • Whetherman says:

          “With the current anti-self defense states, the gap between them and America is widening.”

          I would offer that since the birth of the Trump era, a gap is being opened between many states and the rest of America, on “civil rights” issues again. My point being, we are seeing some old gaps in new places; some old gaps opening in the same places where they existed before; and new gaps (such as you suggest) that never existed before.

  10. Rick says:

    Doesn’t (c)(1) in the quote above provide the allowance for lawful transport, preventing the sort of nonsense that could be ascribed to enforcement of (b)(2)? Am I missing something?

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