New Bill from the Usual Suspects: S. 2820

[ammoeater]

What's the deal on this new Lautenberg bill introduced on 12/1? Can anyone explain this in laymen's terms? What's the potential implications to us non-terrorists? Thanks

http://www.thomas.gov/cgi-bin/query/z?c111:S.2820:

[Latex Ducky]

It looks like it says that if you are even just suspected, you don't get to buy a gun.

[Bartholomew Roberts]

This bill says that if NICS identifies you as a person on any of these lists:

1. a suspected member of a terrorist organization listed in records maintained by DOJ or DHS
2. Violent Gang and Terrorist Organization File
3. Records maintained by the Intelligence Community
4. Records maintained under Section 343 of 50 USC 404n-2

Then all of the records relating to your attempted purchase of a firearm will be maintained for a minimum of 10 years.

From my perspective, I see several problems with this:

1. It does not require you actually be identified as a terrorist, or even a "suspected terrorist". It merely requires that the NICS system think you are that person for some reason. Once this happens, your records get kept.

2. Not only does it have a very broad definition of the records affected; but many of those lists are secret and administered solely by their respective agencies. I don't have any idea how big some of those lists are, how hard it is to get on them, or what protections are in place to prevent this from being abused in the future.

[maestro pistolero]

Would not survive ANY standard of scrutiny.

[Bartholomew Roberts]

Would not survive ANY standard of scrutiny.

Hmmm, I don't know if I am that confident myself. I feel pretty sure it would survive rational basis scrutiny and probably some intermediate scrutiny as well considering that the "penalty" it imposes (retention of records) is relatively low and the governmental concern (public safety re: terrorism) is fairly high.

It could conceivably even pass strict scrutiny if worded correctly and some of the issues addressed.

[38splfan]

The Lautenburg Amendement is once again proving just how dangerous the concept of "domestic terrorism" can be. It seems that each year another requirement or restriction is added to the bill. It may be that, in not fighting this bill hard enough, we've allowed the gradual, eventual, banning of all guns through minor annual changes to this bill.
This most recent one is dangerous for two reasons that apply to shooters:
1) Anyone who has applied for a CCW in states that require fingerprint checks ALREADY HAVE information on file with the FBI, part of the stated intelligence community.
2) Any member of the military or federal employee who has completed and SF86 to apply for a security clearance also has records on file with the FBI.

The big hitch of this new bill is that it doesn't specify what information is on file, just that it be there.
Let's start the letters, emails, and phone calls. It would be a shame to have to try and reverse this one after the fact because we didn't do enough before it passed.
This would also be a good time for all of us NRA and GOA members to call and email to remind them why we renew every year. We can't let the lobbyists lose this one for us.

Whether it will stand reasonable scrutiny or not is beside the point. It is quite wrong and another infringment of our bill of rights smuggled in through the back door.

[publius42]

Hang on a second with the outrage, folks, and read the bill:

`(7) If the national criminal background check system indicates that a person attempting to purchase a firearm or applying for a State permit to possess, acquire, or carry a firearm is identified as a known or suspected member of a terrorist organization in records maintained by the Department of Justice or the Department of Homeland Security, including the Violent Gang and Terrorist Organization File, or records maintained by the Intelligence Community, including records maintained under section 343 of the Intelligence Authorization Act for Fiscal Year 2003 (50 U.S.C. 404n-2), all records generated in the course of the check of the national criminal background check system, including the ATF Form 4473, that are obtained by Federal and State officials shall be retained for a minimum of 10 years.'.

It looks like you have to be identified as a known or suspected terrorist on some (possibly secret) list, not merely be on a list. Am I missing something?

[alloy]

Went to a tea party around the same time as the homeland memo came out, and so things like this are troubling....since some things seem so ill-defined and up to interpretation these days. Oh well, more of the same I guess.

[omega]

Hang on a second with the outrage, folks, and read the bill:
.............
It looks like you have to be identified as a known or suspected terrorist on some (possibly secret) list, not merely be on a list. Am I missing something?

Thanks for the time out, publius42.

I've only caught this issue in my peripheral, but I don't believe the Bill is intended to be as onerous as this conversation would indicate. If I'm not mistaken, the Bill is simply addressing the time frame for certain information to exist in the data base.

Where once the data - and therefore being on the 'list' - was deleted after a shorter period of time, it is now proposed to stay on record for the ten-year period. I think that right now some of the 'Intelligence Community' data is expunged in as little as ten days after the background check is made.

Other than that, I not sure anything more sinister has been inflicted onto the gun purchase process. Please advise if you see it otherwise.

[Bartholomew Roberts]

It looks like you have to be identified as a known or suspected terrorist on some (possibly secret) list, not merely be on a list. Am I missing something?

I think the issue is that if the list is secret and the retention of the data is secret (which it must be, otherwise you are giving terrorists an easy way to determine if they are on any lists), then how do we know exactly who is on that list or how big it is?

How do we know what procedures are in place to make sure that the system catches that John Smith, suspected domestic terrorist, is not the same guy as John Smith, auto mechanic who tried to buy a new .30-30?

Now personally, I think it is a good signal that Lautenberg dropped his previous demand to exclude people from being able to buy a firearm at all if they were on these lists. I think it shows how much stronger we have become since 1994. At the same time, I was very pleased when John Ashcroft finally implemented the intent of Congress regarding the retention of NICS data.

If we are going to take a step backwards on that, I think we need some oversight of the program to make sure it stays within its intended bounds. Right now, the only people looking at this program would be people like Lautenberg - and I am not convinced he is going to protect our interests all that well.

[Al Norris]

Are you on the TSA's No Fly list or Selectee list (-- persons who "may" be a "risk" to civil aviation --)? These two lists are secret. You won't know if you are on them, unless you fly. If you are on the No Fly list, you won't be able to fly at all. If you are on the Selectee list, you will always have to check in at the ticket counter and you will receive additional scrutiny. No unique identifying information is kept with these lists. We think. We really don't know. It's a secret who's on the list, how they got there and pretty much how they might get removed from the list.

Let's be frank here. Your name doesn't have to match, precisely, another name. Only be similar.

If the new bill passes, and you are on any of these secret lists, you will be denied your 2A rights. You want to bet that another "secret" list doesn't contain some variation of your name?

How about the NICS check itself? If you are purchasing guns that some bureaucrat thinks is more than any "sane" person should have (they will know this, as the NICS data will also be kept for 10 years)... Wanna bet that another "secret terrorist" list won't be generated?

[Don H]

Is there anything, anything at all, that prevents DHS from secretly determining that The Firing Line is a terrorist organization and putting its' members on a secret list? To the best that I have been able to determine, there are no limitations to what or who can be slapped with a 'terrorist' label on these secret lists. Until there is public oversight of these lists, I am very reluctant to assign penalties or increased surveillance to those who find themselves on such a list. The greater the amount of information the government gathers on those on a 'list', the easier it is to portray them as a danger to society. If the government, under certain circumstances, can deem anyone of a certain racial group as a danger to the security of the country and worthy of internment in isolated camps, then what is to stop the government from carrying out similar actions on those it has put on a 'list'?

No, I can't say that I'm in favor of additional attention to those who arbitrarily make it onto a secret list.

[Tom Servo]

I'm only seeing six co-sponsors, all of whom are the usual suspects. I'll be in touch with my NRA rep on Monday. Let's wait and see before we start worrying.

[Brian Pfleuger]

Is there anything, anything at all, that prevents DHS from secretly determining that The Firing Line is a terrorist organization and putting its' members on a secret list?

At the very least, there is the fact that DHS employees are, by and large, ordinary American Joe Citizen, from every walk of life and political persuasion. It's not some phantom organization staffed by little green men from the 5th dimension. "They" are pretty much just regular people. Sometimes the "They" that we like to vilify are a large part of "We". There tends to be a bit of whistle blowing and what not surrounding such overly broad, nonsensical acts like putting the entire (non-public!) membership list of an on-line forum on a terror watch list. If it happened the someone would expose it and it would "unhappen".

[maestro pistolero]

Quote:
Would not survive ANY standard of scrutiny.

Hmmm, I don't know if I am that confident myself. I feel pretty sure it would survive rational basis scrutiny and probably some intermediate scrutiny as well considering that the "penalty" it imposes (retention of records) is relatively low and the governmental concern (public safety re: terrorism) is fairly high.

In a post incorporation world, rational basis is off the table for 2A rights, just like in D.C., according to Heller. As I understand it, intermediate scrutiny, IS rational basis scrutiny.

[publius42]

Originally Posted by Antipitas

If the new bill passes, and you are on any of these secret lists, you will be denied your 2A rights.

While I'm as nervous about secret enemies lists as the next guy, that's not what the law proposes. It mandates keeping NICS info for ten years, but there's nothing that says the sale must be denied. Besides, there are always private sales, and if a private seller doesn't know about the government's secret list, that's just going to have to be too darn bad.

[Mike Irwin]

"is identified as a known or suspected member of a terrorist organization in records maintained by the Department of Justice or the Department of Homeland Security..."

Oh, organizations like NRA?

All it takes is one exercise in bureaucratic excess to turn such an organization into a "terrorist organization."

And, if it's anything like the TSA lists, there's no review, no appeal, no nothing.

[Al Norris]

You're right publius. The proposed law, in its current form, does nothing to prohibit anyone on any "list" from owning or possessing firearms.

It is however, a precursor law for such, as it sets the stage. Understand that the whole of Title 18 section 922 deals with unlawful acts. Section 2 of the proposed bill is labled, IDENTIFICATION OF TERRORISTS.

Currently, there is no paragraph (7) to 922(t). It stops at 922(6) - which provides for no liability of the government (local, State or Federal official in the chain of a NICS check) if the sale does not proceed or the sale was actualy prohibited.

With the bill, a new paragraph (7) is added, immediately following paragraph (6):

(7) If the national criminal background check system indicates that a person attempting to purchase a firearm or applying for a State permit to possess, acquire, or carry a firearm is identified as a known or suspected member of a terrorist organization in records maintained by the Department of Justice or the Department of Homeland Security, including the Violent Gang and Terrorist Organization File, or records maintained by the Intelligence Community, including records maintained under section 343 of the Intelligence Authorization Act for Fiscal Year 2003 (50 U.S.C. 404n-2), all records generated in the course of the check of the national criminal background check system, including the ATF Form 4473, that are obtained by Federal and State officials shall be retained for a minimum of 10 years.

Additionally, this section changes922(t)(2)(C), to read as follows (bolded the addition):

(2) If receipt of a firearm would not violate subsection (g) or (n) or State law, the system shall—

(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer, except as provided in paragraph (7).

Which is the new addition, above. So if you are on one of these lists, your NICS check (Name, type of firearm, serial number, and where purchased) is now kept for a minimum of 10 years. This new list is a list of suspected terrorists who have purchased firearms.

Further, in Section 3 of the proposed bill, entitled RETENTION OF RECORDS, 922(t)(2)(C) is further amended to read:

(2) If receipt of a firearm would not violate subsection (g) or (n) or State law, the system shall—

(C) not less than 180 days after the transfer is allowed, destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer, except as provided in paragraph (7).

Innocuous? Not if another, later bill(?), proposed to change 922(g) by adding paragraph 10, to read:

(g) It shall be unlawful for any person—

(10) who is listed as a suspected terrorist in Section 922(t)(7),

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

There you have it. Two simple steps to add another category of prohibited persons.

It makes no sense whatsoever to compile another list, a list of suspected terrorists who have bought or are attempting to purchase firearms, unless you are going to use the list to prohibit those suspects from acquiring firearms.

[Bud Helms]

except as provided in (the new) paragraph (7): "... including the Violent Gang and Terrorist Organization File, ..."

I'm sure there is a rigorous system of review for these assignments. I have been personal witness to the excesses of government in this exercise, as some here may have also been.

Definitions, people.