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Dave Kopel on Manchin-Toomey

If you’re looking for legal analysis by someone who actually has a law degree, and is widely regarded as an expert on this topic, see this post over at The Volokh Conspiracy. In short the registration guarantees and the new FOPA rules are useless. Actually, worse than useless:

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.

Read the whole thing. We have to kill this. Call your senators. And given the late developments, be sure to remind them that Alan Gottlieb doesn’t speak for you.

28 Responses to “Dave Kopel on Manchin-Toomey”

  1. DevsAdvocate says:

    I’m sorry, but the Founding Fathers of the United States rebelled over legislation far less pervasive and subversive than this.

  2. Patrick H says:

    Kopel is great on this. He’s very articulate, written or oral, and he makes his arguments clear enough for anybody to understand.

  3. Sigivald says:

    My Senator (I only have one, because after all, I only got to vote for one district…) is Jeff Merkley, NRA F rated.

    So I won’t be bothering to call him; it’d be like someone in Feinstein’s district calling her.

    Portland’s a nice place… pity about all the Progressive idiocy.

    • harp1034 says:

      You need to take high school gov’t class over. Senators are for the whole state. Congressmen (representative)have a district.
      I think you knew that and just got confused. It happens to all of us.

  4. dshim83 says:

    Is there any logic to trying to fix it? Say we assume that Gottlieb has acted in good-faith; if the bill actually did what he said it did, his case wasn’t entirely off the mark.

    • Rob Crawford says:

      Question — just what is Gottlieb’s background on this? I’ve never heard of him before, nor of his “Citizens Committee”. Was I just ignorant, or has this been an incredibly low-key organization?

      • Dshim83 says:

        Gottlieb is the founder of the Second Amendment Foundation; which by some estimates is the second largest gun rights organization by membership. He currently is the VP of the SAF and chairman of CCRKBA.

        SAF is best known for its role in supporting aggressive legal maneuvers for gun rights in recent years, though it has been criticized for being overly aggressive with flawed cases. The lawyer for the Heller and McDonald decisions did so with the support of the SAF, which backed the Heller case when the NRA declined to participate early on.

        Gottlieb has a solid pro-gun record, though he was convicted of a felony for tax evasion – but successfully had his firearm rights restored in the 90s under a now-repealed bill. There isn’t a lot of reason to think his heart is in the wrong place with this bill – but the road to hell is paved with good intentions.

    • Sebastian says:

      That would mean he’s a sucker.

      • Dshim83 says:

        Gottlieb is not himself a lawyer. Shame on SAF and CCRKBA if their lawyers were not involved in drafting the bill – but what do you make of his assertion about winning the battle but losing the war?

        If the bill actually did what he says it does, would you support it?

        My inclination is maybe – so my desire is to see the bill fixed, so I can judge it on its merits. A sucker perhaps, but a sucker with money and influence. Being the party of “no” is not without inherent risks.

        • Sebastian says:

          I think offering the other side any victory at all will have grave consequences. Bloomberg is very dangerous to our rights over the long haul. Nothing should be given up to him without it being necessary, and the fact that this compromise is having a hard time getting votes says it’s not really necessary.

          The idea that if we give them a limited background check bill, that’s take the issue off the table, is extremely naive. If that were true, there wouldn’t be calls for more gun control in Pennsylvania or California.

          • dshim83 says:

            I fully agree that the other side will give us nothing regardless of any concession we consider.

            The question, however, is whether the position of opposing all new gun laws is a tenable one. We can stick our fingers in our ears about the polling, but even if the public is too ignorant to understand the meaning – the high percentage of support for “background checks” isn’t entirely made up. We can say the polls were skewed, but we’d be making fools of ourselves the way the skewed poll folks did back in November.

            Bloomberg isn’t going away after this vote. His one-man war chest represents up to hundreds of millions he can use to advance his agenda. Forget ideology, 60% of the candidates who win their races are the one who spent more. Even with the NRA’s income being somewhere over 200 million, we have to respect the danger of Bloomberg’s 27 billion net worth.

            Many people in America are indifferent about guns, and some of our Fudds even support the AWB. When it comes down to gay marriage, marijuana legalization, abortion – the Republican party remains on the wrong side of demographic changes in America. We can talk about how important 2A rights are, or how they are the foundation for other rights – but the truth is that young or black or hispanic or female voters seem to care about other issues or other combinations of issues that don’t involve the 2nd Amendment. As much as we hate it, waving the bloody shirt has an affect on these people, and it isn’t in our favor.

            We’ll benefit some from the fact that Democratic voters turn out less in midterm elections. But Bloomberg represents 10s if not 100s of millions of dollars which weren’t against us in 1994. If the economy starts to pick up, Democrats might even make gains.

            If that happens, they won’t be coming for background checks, and we all know that.

            So we fix Manchin-Toomey – perhaps even make the case for CCW reciprocity, since it got 58 votes in ’09. Now, that would cause Bloomberg to go haywire – but say we leave that out. We fix Manchin-Toomey to be the bill Gottlieb meant it to be, and we let Bloomberg walk right into our embrace endorsing it.

            For 2014, we still try to oust Democrats who supported the original S649 or Republicans who vote for the AWB and Magazine ban amendments – but without Bloomberg on our back in the same way. Hard to run attack ads on the politician who voted for the Bloomberg endorsed bill.

            It’s ugly, its dirty, it’s f**ked up. But that’s realpolitik. With all of the “demand a plan” nonsense, Bloomberg will have to endorse the bill supported by Democratic leadership – and the other side, knowing that the public is happy to accept the balm of imaginary safety and move on to other issues, puts down the bloody shirt.

            Running headlong into a multimillion dollar offensive where our side is the less armed one seems riskier than judo; use our opponent’s strength against them. 90% of people support background checks? We gave you background checks. In 2014, they couldn’t talk about the “gun show loophole” they’ve been making up for 20 years. “Father-son loophole?” “Neighbor loophole?” I’m sure they’ll come up with something, but we’ll have realigned ourselves with the median voter.

            Bloomberg, Feinstein, Schumer – they’ll never give up on an AWB and whatever restrictions they can get. Background checks are their strongest tool, and now is the opportunity to make it our own. If we allow them to continue to wield it against us well, that may turn out to be how we win the battle but lose the war.

            • Patrick H says:

              Well it was tenable until Toomey, Schumer and Gottlieb got involved. Now we have a fight on our hands.

              And you don’t it. You can’t appease the other side. You can’t appease Bloomburg. They will feel emboldened that they beat the NRA and gun owners. They will come out swinging in 2014, and that makes out job that much harder.

              And who is this “we” to fix Toomey-Schumer? Its not going to be fixed.

              • Sebastian says:

                He’s already had a substantial victory. He has greatly weakened a Republican lawmaker in a key swing state that’s traditionally been pro-gun. Even if everything is killed from here on out, weakening Toomey is a huge victory for him, granted one orchestrated by Toomey himself, and abetted by Gottlieb giving him cover to do it.

                • dshim83 says:

                  Aside from leaving Toomey to stew in his own filth, what do we do with Gottlieb then?

                  Regardless of how ill-informed or mistaken he is, I do believe that Gottlieb has his heart in the right place in trying to protect gun rights.

                  I’m sure, as some already have, people will be calling for his head. Surely their is a better outcome for all of this than that.

                  • Sebastian says:

                    I’m not sure on that count. SAF is doing good work in the Courts these days, so that’s why I’m not calling for his head on a platter. But I do wish they’d stay out of lobbying.

                • Patrick H says:

                  Right, but like you said, that’s more on Toomey. And the failure to pass any gun control legislation will still be a huge loss for him.

            • Sebastian says:

              You’ve said a lot here, and make some good points. Let me address some of them.

              The question, however, is whether the position of opposing all new gun laws is a tenable one. We can stick our fingers in our ears about the polling, but even if the public is too ignorant to understand the meaning – the high percentage of support for “background checks” isn’t entirely made up. We can say the polls were skewed, but we’d be making fools of ourselves the way the skewed poll folks did back in November.

              The polls don’t really mean anything if people aren’t willing to vote on the issue, and that’s largely been a big part of our success formula. Anti-gun folks get away with being the way they are because there aren’t enough gun rights voters in their districts to be concerned about.

              Bloomberg isn’t going away after this vote. His one-man war chest represents up to hundreds of millions he can use to advance his agenda. Forget ideology, 60% of the candidates who win their races are the one who spent more. Even with the NRA’s income being somewhere over 200 million, we have to respect the danger of Bloomberg’s 27 billion net worth.

              I agree, but he’s going to keep pushing if he walks away with even a partial victory this time. Not only that, he will have been made more powerful by the victory. The only reason the wind got taken out of the sails of the anti-gun movement in the 1990s was because of the backlash in the voting booth. Once they had a plausible narrative of NRA ineffectiveness, and a pretext, the gun control movement quickly re-enerigied. What’s going to kill this latest upsurge is a lack of victory, and even then it’ll take some time.

              Many people in America are indifferent about guns, and some of our Fudds even support the AWB. When it comes down to gay marriage, marijuana legalization, abortion – the Republican party remains on the wrong side of demographic changes in America. We can talk about how important 2A rights are, or how they are the foundation for other rights – but the truth is that young or black or hispanic or female voters seem to care about other issues or other combinations of issues that don’t involve the 2nd Amendment. As much as we hate it, waving the bloody shirt has an affect on these people, and it isn’t in our favor.

              I don’t buy notions of permanent Democratic majorities any more than I bought notions after 2004 that the Democrats had become a weak, regional party.

              If that happens, they won’t be coming for background checks, and we all know that.

              They’ll be coming after background checks provided that’s still on the table because it’s their easiest victory. But that doesn’t mean we give it to them unnecessarily. If we do, what do we give up next time? At some point, you have to draw a line. Even if it means burning all your political capitol. That said, I’m willing to accept that we may have to cut a grand bargain on background checks eventually. But they have to be made to pay for it.

              So we fix Manchin-Toomey – perhaps even make the case for CCW reciprocity, since it got 58 votes in ’09. Now, that would cause Bloomberg to go haywire – but say we leave that out. We fix Manchin-Toomey to be the bill Gottlieb meant it to be, and we let Bloomberg walk right into our embrace endorsing it.

              The bill isn’t going to pass with National Reciprocity attached to it. That would amount to a poison pill. Bloomberg won’t support it. Preventing New York City from having to recognize Second Amendment rights is why he’s in this game.

              Running headlong into a multimillion dollar offensive where our side is the less armed one seems riskier than judo; use our opponent’s strength against them.

              I think you overestimate their strength and underestimate ours. Bloomberg is a factor, and he’s probably singly responsible for the revival of the prospects for gun control in this country. But he’s not unbeatable, even with the money behind him. If a grand bargain has to be cut on background checks, I think we could get a better deal than Toomey-Manchin. But I don’t think we’re yet at the time where we have to make that deal.

              • dshim83 says:

                I think you make a pretty compelling counter-argument to mine; I do believe I underestimated the degree to which Bloomberg would be empowered by a victory on legislation here.

                Say we make our stand here. If for 2014, Bloomberg strikes out the way Adelson did last cycle, then that’s great. But if he wins a few, particularly in a direct head-to-head with the NRA, then he gains leverage. Perhaps the post-Sandy Hook legislative environment means that we’ll be fighting an AWB every session due to the new money on the gun-control side.

                The only reason the wind got taken out of the sails of the anti-gun movement in the 1990s was because of the backlash in the voting booth. Once they had a plausible narrative of NRA ineffectiveness, and a pretext, the gun control movement quickly re-energized. What’s going to kill this latest upsurge is a lack of victory, and even then it’ll take some time.

                I think what will kill this latest upsurge is the defeat of gun-control democrats in favor of gun-rights candidates – but I fear that the opposite will happen due to the money. The NRA did particularly poorly for the money this last cycle.

                If a grand bargain has to be cut on background checks, I think we could get a better deal than Toomey-Manchin. But I don’t think we’re yet at the time where we have to make that deal.

                100% this. I agree, we can do better. But we need to be ready – for when that time comes gun-rights supporters need to be the ones who define the debate. If one thing from Gottlieb’s Friday speech holds true – it is that we need to have a seat at the table controlling what comes out. Playing your cards too early – “no new gun restrictions, period.” – means that we diminish our ability to set the terms of debate.

                Perhaps the tactical approach going forward will be to be less bellicose, being sure to gut gun-control bills from the inside before killing them on the Senate floor. Heck, that may even prove to be an apt description of Manchin-Toomey.

                • Sebastian says:

                  Keep in mind I’m not a lobbyist, and a lobbyist might view this differently. But if things start going worse for us, I’d like to keep this issue as one to divert on, rather than preemptively conceding it when we don’t have to.

            • Sebastian says:

              I’d also follow up that a lot of folks don’t believe in deals, ever. Wave the bloody shirt, as you say. I am not generally among them, because a deal can have implications for your opponent too, and take some wind out of their sails, as well as prevent us from losing in a way we really couldn’t live with.

              But how it plays out is really difficult to predict. I’m not a fan of that unless it’s absolutely necessary, or what we’re giving up is an absolute triviality, like with the Virginia Tech bill. Private transfers aren’t such a triviality. If something like Toomey-Manchin passes, there’s going to be confusion, and possibly otherwise non-criminal people are going to be serving long prison sentences. Even if it were to come time to make a deal, the one Gottlieb apparently orchestrated is not it. Not even close.

              • dshim83 says:

                Private transfers aren’t such a triviality. If something like Toomey-Manchin passes, there’s going to be confusion, and possibly otherwise non-criminal people are going to be serving long prison sentences.

                They certainly aren’t trivial, as you note. Law abiding citizens being made into criminals despite their good faith effort to obey the law is unacceptable and deplorable.

                Even if it were to come time to make a deal, the one Gottlieb apparently orchestrated is not it. Not even close.

                And now the question that brings is: “what are “universal” background checks worth?

                I know on the gun-rights side we’re always talking about how compromise would mean taking AOW and silencers off the NFA; repealing the Hughes amendment; getting rid of 4473 forms; etc. But truly, what would a favorable compromise to gun-rights supporters look like?

                Put in more specific language about “internet” sales + CCW holders don’t even have to fill out 4473’s + fix the felony for gun registry clause + CCW reciprocity/Silencers/Hughes? (I must be dreaming.) That begins to smell like a compromise on background checks I could support.

                Realistically, where would that line be? They say not to deal with the devil, but 60 votes to expand background checks (Manchin-Toomey style) and get rid of 4473 forms completely? The plot thickens.

                • TigerStripe says:

                  All gun control bills were dead in the Senate until Bloomberg found a potential weakness in Toomey. Anti-Toomey ads in Philly would kill any support he had there and erode support in the suburbs of Philly.

                  I personally don’t think this would have much long term impact. There are many single issue anti-gun voters, they tend to vote Democrat anyway. Pro-gun voters do punish the politicians who betray them. That’s my second grade thesis, anyway. TS

                  • Sebastian says:

                    I don’t think there are many single-issue anti-gun voters. The lack of them, actually, is a big part of why they fail. But the few there are will never vote for Pat Toomey.

  5. Sean says:

    I still don’t fully follow this. Not willing to contact my reps until I can gr0k this entirely.

    In the past, I’ve considered Mr. Gottlieb to have more credibility than the NRA when it came to legal action.

    We can’t even agree who’s on our team, or what our team is anymore…

    This whole thing is fragmenting the pro-gun rights movement.

  6. WhiskeyWasOnceMoney says:

    Hope Toomey enjoys his primary. I know I will.

  7. TigerStripe says:

    I’m more inclined to believe Kopel than Gottlieb. Schumer isn’t going to go for any enforceable expansion of FOPA… TS

  8. Zermoid says:

    Seen this?
    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/

    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.

    This sounds like NJ law being made national to me, so what does this require? You have to stop before you cross a state line, unload your gun, lock the ammo in the trunk (If your vehicle has one, if not you’re screwed?), then after crossing the state line get out the ammo and reload until you cross the next state line?

Trackbacks/Pingbacks

  1. We rebelled over less in the past… | In Defense Of Liberty - [...] Dave Kopel has a good review and write-up on the next big bi-partisan “compromise” on guns at Volokh Conspiracy.…
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