Toomey-Manchin Amendment

[Bartholomew Roberts]

Heritage Foundation says that due to sloppy drafting, Toomey-Manchin will allow federal registry at the discretion of the Attorney-General:
http://blog.heritage.org/2013/04/11/...-gun-registry/

They discuss the specific language problems and underlying law at the link.

[sigcurious]

I just saw an article in the washington post (responding from my phone, will add link when I get home) that stated a well regarded 2A organization voiced support for the amendment. Has anyone heard of the citizens commitee for the right to keep amd bear arms?

[Al Norris]

Both the SAF and the CCRKBA are headed by the same man - Alan Gottlieb.

[sigcurious]

Interesting, this position he and by extension his organizations have taken is certainly a odd circumstance. I wonder if this will end up being similar to the earlier NRA gaff of supporting UBCs in the '90s.

Article referenced.

[Bartholomew Roberts]

Sigcurious, you might give this link a read:
http://m.factcheck.org/2013/04/biden...ground-checks/

It goes into the NRA's "support" for background checks in some detail. The brief summary is the NRA has never supported anything like universal background checks or even Toomey-Manchin.

[sigcurious]

Thanks for the link, I had never seen the full transcript of his(LaPierre) '99 statement.

[Rob228]

I am starting to see articles that this amendment will pave the way for full state to state reciprocity, and that Schumer is furious. Is this just wishful reading/thinking or is this an actual possibility?

[mayosligo]

rob. I have seen similar posts that the SAF had some role in writing Machin-Toomey and that somehow there are hidden items that gun grabbers may have overlooked or did not read. Not sure how real this is.
http://www.examiner.com/article/gun-...heck-amendment

[wingman]

Slippery slope when connecting the right to use or own something to health care, pilots for years have battled with seeking care mental and physical due to keeping there license. Once health care is used in this manner it can and will spread to other agencies, home insurance, car insurance, in the end it prevents people from obtaining the help they need. Once our health care records become an open book and I believe they will under Obama care it will affect more then guns.

[Bartholomew Roberts]

I think there are probably as many hidden items that SAF missed as there are hidden items that Schumer missed. The Heritage Foundation article talking about how the use of the word "notwithstanding" weakens existing FOPA protections against a federal registry is one example.

The part where CHLs are now required to transfer through FFLs at gun show/ internet sales is another.

[motorhead0922]

Heritage says this:

The STM bill fuzzes up the law prohibiting a federal gun registry. First, the legislation says that nothing in the legislation shall be construed to allow establishment of a federal firearms registry. In addition, it says that the Attorney General may not consolidate or centralize records of firearms acquisition and disposition maintained by licensed importers, manufacturers, and dealers, and by buyers and sellers at gun shows (and makes it a crime for him to do so).

But then, the STM bill takes those protections away by using the all-powerful word “notwithstanding”—”notwithstanding any other provision of this chapter, the Attorney General may implement this subsection with regulations.” The courts may construe the “notwithstanding” to allow Attorney General Eric Holder to issue regulations that could begin to create a federal registry of firearms, because the law says he can implement the subsection without regard to the protections against a registry elsewhere in the legislation...

...It would be a bad idea for Congress to give Attorney General Eric Holder the broadest possible discretion by empowering him to implement the STM background check legislation by regulations “notwithstanding any other provision” of the legislation. Perhaps the courts would say the anti-gun registry provisions prevail over the “notwithstanding” clause and there can be no step toward a gun registry, and perhaps the courts would say the “notwithstanding” clause displaces the anti-gun registry provisions and Attorney General Holder can start toward a gun registry.

I fail to see how "notwithstanding" can open the door to a registry, when the bill says twice that a registry is not permitted, and specifically restricts the AG from doing so:

SEC. 103. RULE OF CONSTRUCTION.
Nothing in this title, or any amendment made by this title, shall be construed to-
(1) expand in any way the enforcement authority or jurisdiction of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; or
(2) allow the establishment, directly or indirectly, of a Federal firearms registry.

(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.".

Perhaps someone can enlighten me on this.

[Bartholomew Roberts]

The part that says: "notwithstanding any other provision of this chapter, the Attorney General may implement this subsection with regulations."

Literally read, that means "No matter what any other provision of this chapter says, the Attorney General may create regulations to enforce this subsection." There is case law where courts have construed "notwithstanding" language so broadly as to allow the authorized officer to violate other parts of the law in order to "implement regulation.". Most importantly, the D.C. Circuit, which is often a shortcut to SCOTUS takes a view along those lines.

I would certainly hope that is a case we would win; but I tend to think that is a case we would end up having to fight eventually. All the AG would need is some reason why a "database" was necessary to "implement the regulation.". And realistically, the damage would be done long before we ever got a result through the court system. I also have serious doubts the 15 year penalty means anything. Selling guns to Mexican drug cartels in the thousands is a felony already - nobody from DOJ is being indicted over that.

[gc70]

Originally Posted by Motorhead0922

I fail to see how "notwithstanding" can open the door to a registry, when the bill says twice that a registry is not permitted, and specifically restricts the AG from doing so:

Look at the various provisions and see how they relate to each other.

Proposed Act - Sec. 103 of the Public Safety And Second Amendment Rights Protection Act

SEC. 103. RULE OF CONSTRUCTION.
Nothing in this title, or any amendment made by this title, shall be construed to-
(2) allow the establishment, directly or indirectly, of a Federal firearms registry.

Sec. 103 is a statement of the intent of the Act, but not statutory language that would be included in the United States Code.

Proposed law - United States Code, Title 18, Part I, Chapter 44, Section 922(t)(4)(A)

Notwithstanding any other provision of this chapter, except for section 923(m), the Attorney General may implement this subsection with regulations.

In making regulations for 922(t), the AG could disregard any other provisions in Chapter 44, except for the provisions of 923(m).

Proposed law - United States Code, Title 18, Part I, Chapter 44, Section 923(m)

(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 AG many not "consolidate or centralize" records or parts of records.

Existing law - United States Code, Title 18, Part I, Chapter 44, Section 926(a)

... No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. ...

The AG many not require records or parts of records to be "recorded at or transferred to" government entities.

Putting the above together, the AG can make regulations for gun show and online sales under 922(t), disregarding the restrictions in 926(a) and subject only to the restrictions in 923(m). With respect to gun show and online sales (let's go ahead and call them private transactions), the current prohibition against records being "recorded at or transferred to" government entities could be ignored and there would only be a prohibition to "consolidate and centralize" records.

Why would the government need to "consolidate and centralize" records of private transactions in a massive government database when the information could be maintained in databases at each FFL and accessed on demand by the government since the "transferred to" restriction could be ignored? Would the courts view a distributed database query system as a registry?

[alloy]

Al Norris~Both the SAF and the CCRKBA are headed by the same man - Alan Gottlieb.
Yesterday 02:25 PM

VCDL http://vcdl.org/ says they aren't only choosing to support it, they wrote it.

Email excerpt from VCDL:

***************************************
1. The Toome/Manchin/Schumer gun control bill amendment was apparently written by a gun-rights organization
***************************************

As a shocker, the Toome/Manchin/Schumer amendment to a gun-control bill in Congress was written by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA)!

Alan Gottlieb, with CCRKBA, told a group of gun owners at a meeting that his organization wrote the bill and it has a lot of improvements to current law that are good for gun owners. In fact, CCRKBA actually ENDORSES the bill (http://tinyurl.com/cea4le4). HOWEVER, VCDL continues to OPPOSE that bill.

The bill does indeed offer some improvements to current law:

* Provides a felony penalty for anybody who attempts to make a gun registration database (currently such a thing is illegal, but there is no penalty)

* Allows handgun to be purchased in all 50 states, and not in just the state where the purchaser resides

* Clarifies the federal peaceful journey law to allow a person to stop at a hotel, eat a meal, get gasoline, etc. while traveling across a gun-unfriendly state

* Provides criminal and civil protections for private sellers whose sale was run through a background check

* Provides a method for protecting veterans from having their gun rights removed without proper adjudication

While those items are indeed good, the serious problems with the bill comes in the area of requiring background checks for all guns sold at gun shows or for guns that are advertised either in a "publication" or on the internet. While selling a gun or giving a gun to a family member would be allowed without a background check, selling a gun to anybody else would become almost impossible:

1. If you sell a gun at a gun show, then a background check MUST be done. There is no requirement in the bill, however, that a dealer would be available to run the background check! So it would be quite possible that private sales at gun shows would not be possible at all if no dealer agreed to run the background check. In fact, based on the definition of a gun show as having 75 or more guns for sale, a large flea market might qualify as a "gun show" because of a lot of small private sellers, with NO FFL present at the show to run background checks. In that case NO guns could be legally sold at the flea market at all, wasting everyone's time. And how would a person know if there were 75 or more guns at the flea market or not? Talk about a trap to turn good people into felons!

2. If you say you have a gun for sale and either list it on the internet or post something about it in a "publication," then the gun MUST be sold through a dealer at that point. If the buyer posts in either place that he is looking for a gun, the gun he purchases will also require a background check. The only way to sell a gun to a non-family member is if you are NOT at a gun show and never make mention of wanting to sell the gun on the internet or in any kind of publication. Basically, you would have to do it by word of mouth only. Good luck with that! What are you going to do - walk down a street and ask everyone you pass if they want to buy a gun from you?

3. While Alan claims that this bill would in no way lead to a registry, the data would be there for the taking, since the sale would be on a form 4473 kept by the dealer. If you didn't sell through a dealer, the feds would know they only have to look to your family members to find the gun, since they would be the only people really exempt from the background check.

There is no doubt that this bill would do serious harm to gun shows and to private sales. You could find yourself at a gun show unable to sell your gun because no dealer will run the background check. You might not be able to sell your gun at a large flee market because there are no dealers in attendance to run the check. Make a mistake in how you sell that gun, for example mentioning it in an email but not selling it with a background check, and you can become a felon.

This is simply not the time for ANY gun bills to be considered in Congress, because they can be hijacked and made into anti-gun bills. Or, in this bill's case, it already has some serious problems that can be made even worse. Surely, no one is really stupid enough to trust Senator Chuck Schumer when it comes to guns?

VCDL continues to OPPOSE ALL gun control bills in Congress. Sadly, this bill only makes our job harder at a time when Bloomberg and his illegal mayors are about to go on another offensive against our gun rights.

Here is the text of the bill:

http://tinyurl.com/c4r6pdo

Here is video of Alan explaining the bill:

http://tinyurl.com/c3ro553

Alan's faith in background checks, and in Chuck Schumer, is misplaced and this bill must be defeated. Criminals will continue to have no problems getting guns with or without background checks. It's the rest of us who will have lost our right to sell or buy guns from a private sale without Big Brother's approval. That Big Brother, BTW, is the same Big Brother who provided guns to the Mexican cartels in Fast and Furious and tried to blame innocent gun dealers.

[Bartholomew Roberts]

http://thehill.com/homenews/senate/2...-in-the-senate

The Hill reports that the amendment is inching closer to 60 votes and that Republicans Mark Kirk, Pat Toomey, Susan Collins, and John McCain are onboard. The article goes on to list Republicans and Democrats who have not yet committed or who are opposed.

Wobbly:
Jeff Flake (R-AZ)
Bob Corker (R-TN)
Kelly Ayotte (R-NH)
Heidi Heitkamp (D-SD)
Max Baucus (D-MT)
Mark Pryor (D-AR)
Mark Begich (D-AK)
Mary Landrieu (D-LA)


Opposed:
Lindsay Graham (R-SC)
Johnny Isaakson (R-GA)
Saxby Chambliss (R-GA)
Tom Coburn (R-OK)
Lamar Alexander (R-TN)
Richard Burr (R-NC)
John Hoeven (R-ND)

UPDATE: According to the NYT, the following "wobbly" Senators are now voting against Schumer-Toomey-Manchin:

Bob Corker (R-TN)
Mark Begich (D-AK)
Heidi Heitkamp (D-ND)
Two unnamed Dem Senators

[csmsss]

Any time I see the phrase "Attorney General may" and know that our sitting Attorney General is Eric Holder, I know I'm looking at a bad bill.

[motorhead0922]

Our 4473's have been sitting in dealer's files for years, and haven't spontaneously flown into a federal registry. This bill won't change that.

The only issue on a registry is the exact interpretation of "notwithstanding".

Edit: Since I am an SAF member, I emailed them for comment on the "notwithstanding" issue. Awaiting reply.

[Gaerek]

I might be posting this in the wrong place, and if I am, I apologize. But either way, it relates to the Gun bill and the possible amendments. I read somewhere that there was an amendment that appeared to have wide spread support that would effectively give nationwide CCW reciprocity. Did I read correctly? If so, where can I find more info on it. This seems like it might be a good thing. The only problem I can see with it is a quid pro quo amendment from democrats. Thanks guys for keeping track of these things, and helping us who aren't as good at this kind of stuff informed.

EDIT: Nevermind, found it.

http://www.nydailynews.com/news/poli...icle-1.1316458

Reading that, Schumer is an idiot. He thinks that a criminal (who won't be able to pass a background check to get a permit, by the way) will just go through the trouble of getting a permit in another state just to carry in NYC and turn Times Square into the "OK Corral." Or, they'll just do what they do anyway...not care about what a piece of plastic (the permit) says they can do, and just carry anyway...

ANOTHER EDIT:

Quote from Schumer that makes me sick to my stomach (emphasis mine)...

Times Square is different than rural Wyoming, and our police don’t need even law abiding citizens having the right to carry guns.

He said it in the quote...that carrying a gun is a right, but he wants to take it away. If it were a privilege, that'd be one thing, but we have a right...and he even calls it that! Makes me absolutely sick. Not to mention that I think a law abiding citizen needs a gun more in Time Square than in rural Wyoming...

[Webleymkv]

While the article says that Joe Donnelly (D-IN) is expected to vote for it, I could see him wavering if enough pressure is applied. Donnelly has not, as far as I know, publicly committed to UBC's one way or the other aside from his vote to proceed on debating the bill. Donnelly very narrowly won election last year largely because his opponent, Richard Mourdock, had a very public gaffe about rape and abortion.

Indiana is a very conservative and gun-friendly state and a vote for gun control would very likely hurt Donnelly's chances of re-election (his seat was previously occupied by Republican Dick Lugar who lost the 2012 Republican primary due to his lack of conservatism). It is also worthy of note that Sen. Dan Coats (R-IN) who is a well-known moderate that, in years past, would have likely supported this bill, has come under enough political pressure to oppose it and vote with the Republican filibuster against it.

I've written Donnelly several times since Sandy Hook and after about two months, he finally sent me a reply stating that he opposed an AWB. This leaves me with the impression that Donnelly is hesitant to commit to anything until he a gauge which way the political wind is blowing. Because of this, Indiana residents need to make sure that the political wind blows against S.649 and the Toomey-Manchin amendment.

[HarrySchell]

Alan Gottilieb of SAF has been quoted as saying the Amendment has been made pro-self-defense.

Dave Koppel begs to differ:

"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."

http://www.volokh.com/2013/04/15/the...f-gun-control/

[kevinjmiller]

Am I nuts, or did they just restore the ability to purchase a handgun outside the state in which you reside???

Yes, but given the rest of the bill/amendment one is compelled to observe that a few (moldy) raisins don't turn a cow patty into chocolate mousse.

[johnwilliamson062]

I'm just waiting for some sort of phone based classified to pop up. You call in and it describes all the guns for sale in your state. Be more expensive than armslist(I expect they will be out of business if this passes), but wouldn't be that expensive.

[tobnpr]

To me, the fact that the current Bill seems to "prohibit" the creation of a Federal Registry is about as absolute as a ten-year Federal Budget...

Subject to change, at the whim of the next Congress.

Laws can be changed. Do any of us not think for one second that, if there were a large majority Democratic Senate, and House today, that we'd be having the fight of our lives against a Federal Registry?

Once the information is there, it's there forever...

A "ban" on a Federal Registry can- and I fear would- be changed if another perfect storm of tragedy and opportunity presented itself to the gun-grabbers.

[srommes]

http://guntalk.libsyn.com/guntalk-2013-04-14-part-a

[mayosligo]

Confusing. NRA says vote against it. SAF and CCKBA say they helped write it and there are great pro gun measures in it.