Category: Guns

Via E-Mail:

As often happens with complex issues, NRA’s position on Sen. Rand Paul’s defeated PATRIOT Act amendment is being mis-reported by those who either don’t understand the facts, or prefer their own version of “facts.”

This amendment was rejected by 85 Senators, which included many of the strongest Second Amendment supporters in the U.S. Senate.  Unfortunately, Senator Paul chose not to approach us on this issue before moving ahead. His amendment, which only received 10 votes, was poorly drafted and could have resulted in more problems for gun owners than it attempted to fix. For this reason, the NRA did not take a position on the amendment.

To be more specific about the amendment and its problems, the amendment would have prohibited use of PATRIOT Act legal authority for any “investigation or procurement of firearms records which is not authorized under [the Gun Control Act].” There have been no reports of the current PATRIOT Act being abused with respect to firearms records, however supporters suggested a far-fetched scenario in which every firearms sales record in the country–tens or hundreds of millions of documents dating back to 1968–could be sought.  Again, we nor anyone else is aware of any case in which this authority has been used to abuse gun owners.  (In fact, published reports indicate that few of these orders are ever sought for any reason.)

In particular, the amendment appeared to be aimed at so-called “section 215 letters”–orders from the FBI requiring the disclosure of “tangible things” such as records and documents.

Under the current PATRIOT Act, an application for this type of order with respect to firearms sales records has to be approved no lower than the director or deputy director of the FBI, or the Executive Assistant Director for National Security.  The application is made to a federal judge based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”  The judge has the power to modify the order and must direct the use of “minimization procedures” to protect the privacy of Americans.
If the Paul amendment were adopted, the FBI would have used other ways to access whatever firearms records it might need for intelligence or anti-terrorism investigations. This is especially troublesome for gun owners.

This would result in United States Attorneys simply demanding the same records through grand jury subpoenas, which require no judicial approval before issuance. Fighting a subpoena after the fact can be very costly and carries legal risks of its own, including possible charges for obstruction of justice.

Even worse, the government would have used the Gun Control Act’s provision that allows the Attorney General to “inspect or examine the inventory and records of [a licensee] without … reasonable cause or warrant” during a criminal investigation.  That means by simply characterizing its activities as a “criminal investigation,” it would enter a licensee’s premises and demand these records without “reasonable cause or warrant”–in other words, without judicial oversight of any kind, and without any of the procedural limits imposed by the PATRIOT Act.

Therefore, given all of these potential problems for gun owners, the NRA could not support this poorly drafted amendment.

One reason I didn’t pay much attention to the Paul Amendment was because it seemed like trying to fix an issue that didn’t really exist. What NRA appears to be worried about, if I may read the tea leaves a bit, is that this is just going to give the feds ideas, while still leaving open many other, much easier channels by which they could accomplish the same thing. In other words, it would appear that the Paul Amendment wouldn’t actually fix anything.

Looks like it’s been voted out of judiciary. Says NRA’s lobbyists working WI:

“Our perfect scenario is to have the constitutional carry bill pass, along with a licensing bill,” said LaSorte, shortly before boarding a plane back to Wisconsin late Monday afternoon.

Of course, <sarcasm>since it’s become such a well known fact that NRA is opposed to constitutional carry, clearly the newspaper has to be making this quote from Darren up out of whole cloth.</sarcasm>

I am working on a post regarding the late happenings in New Hampshire in regards to Constitutional Carry, but I want to make sure I have my facts straight first, which takes time, and my time is not a plentiful commodity right now.

UCLA Law Professor Adam Winkler, in the LA Times, expresses some of the same sentiment I did about California’s move to further restrict, really eliminate, the “bear” portion of the Second Amendment:

In two recent lower court lawsuits challenging California’s concealed carry laws, the judges upheld the restrictive policies in part because the state allowed open carry. The judges explained that because the state allows people to openly carry unloaded firearms without a permit, any 2nd Amendment right to have a firearm in public was satisfied. If you find yourself in immediate danger, you can load your gun quickly and protect yourself. Absent an open carry policy, however, future courts could have a much harder time upholding concealed carry restrictions.

Looking only at moving this issue through the courts, I’m somewhat glad California is going down this path. I think it would be problematic to force the courts to consider whether unloaded OC satisfies the constitutional requirement. The reason is that I fear the answer would be yes. We’re probably better off with the courts looking at an outright ban, except for a license which is issued at the arbitrary discretion of authorities.