via e-mail
HB 2640 Gun Ban Worse Than Originally Thought
June 28, 2007
by Alan Korwin, Author
In a sensational national email alert, Jews for the Preservation
of Firearms Ownership (jpfo.org) incorrectly stated yesterday:
"Is the NRA just another 'gun control' group? Alan Korwin, author of
'Gun Laws of America' seems to think so." JPFO is using my name to
promote a belief they hold that I do not.
The NRA is the most powerful gun-rights group in the world, even if other
groups (like Jews for the Preservation and others) don't think so, or
believe they outperform NRA in some fashion. Like Hillary Clinton or any
big dog, the NRA must endure a certain level of attack from their own
side, it comes with the territory.
I don't know why NRA is supporting the McCarthy NICS expansion bill as it
is currently written, but it doesn't make them the enemy. I think they
have misread certain passages, or hold mistaken beliefs about how BATFE
and the Justice Dept. will perform under the bill if enacted.* Reasonable
people will differ. There is still time for a fix.
This has prompted me to reexamine the bill, and unfortunately, it seems
worse than I originally believed. To the NRA, media and others who
disagree with my assessment of HB 2640:
1. Not Just Adjudications
Bill supporters have expressed that "adjudicated" mental
incompetence, which implies action by a proper court of law, is a fair
standard for gun denial, and with an appeals process in place is a
reasonable line in the sand. I generally agree. But the bill says
"adjudications" can come from any federal "department or
agency," not just courts.
And HB 2640 isn't limited to adjudications. It speaks throughout of people
with "adjudications, determinations and commitments," and not
even "involuntary commitments." The word
"determination" scares me most -- it isn't even defined. Who can
make "a determination"? The law doesn't say. An agency with even
a narrow view could read that to mean almost anything. You're comfortable
with that? Does it subject people's rights to a bureaucrat's whim? Where
are the controls on "a determination"? There aren't any
apparent.
It's true that the adjudications, determinations and commitments must
include a finding that the person is "a danger to himself or to
others or that the person lacks the mental capacity to manage his own
affairs." However, BATFE is already on record that any level of
"danger" is enough, and it does not have to be imminent, or
substantial. Name some sort of mental issue that doesn't have some sort of
danger attached -- you can't. Call me a skeptic, go ahead, I can take it.
2. Funding Denied for Restorations
Restoration of rights is subjected to 18 USC 925(c). I don't know how I
missed this the first time around. That's the statute Congress has refused
to fund since 1992. No one can get rights restored under that statute. We
know that. Why would gun-rights supporters place faith in that as a valid
appeals route? More than anything else, that item makes me wonder what's
going on. It's a legitimate worry. Either the NRA missed that and must fix
it, or their critics' worst fears have merit.
3. Arbitrary Control by Attorney General
Even if 18 USC 925 were valid (i.e., funded), as currently written it
gives the U.S. Attorney General absolute and arbitrary control over
restoring gun rights to a person who applies. It doesn't require any
action by the AG. It says, "the Attorney General may grant such
relief if it is established to his satisfaction that... the applicant will
not be likely to act in a manner dangerous to public safety and that the
granting of the relief would not be contrary to the public interest."
A politician (unelected in this case) who doesn't think the public should
have guns in the first place would never restore rights under that
language. Does that seem like a fair and reasonable approach to you? Do
you trust that as a baseline standard?
4. Doctors Issuing Gun Rights?
The mental health community is entrusted with the ability to restore a
person's rights by declaring them fit (I'm paraphrasing a lot of legalese
here). Doctors are by-and-large among the most anti-gun-rights groups in
society (check the med journals, AMA, CDC, etc., but I know you know
that). What are the chances that anyone within that community will be
certifying former mental cases as competent to keep and bear arms? What
would give you hope that this part of the bill will be any help at all?
Will doctors take the time to make a distinction between real mental cases
and people wrongly listed in the official FBI mental case database? If
doctors or shrinks make a single mistake, will the feds pull their license
to practice, encouraging all of them to keep in line and take no action?
Maybe just fear of lawsuits will do the trick.
5. Illegal Aliens Exempt
Another giant one I missed: Under 18 USC 922 it's clear that illegal
aliens cannot legally have guns in this country (and most can't have guns
in their native Mexico or elsewhere). But they're not in the NICS denial
files because, as newspapers put it, they're "undocumented," so
there's no way to get the 20 million of them in there. So here's another
blockbuster hidden in HB 2640 -- anyone who loses their "illegal
alien" status is exempt from NICS (under Sec. 101 (b)(1)(B)). In
other words, if the Amnesty Bill removes the illegal status from the
people here illegally, they cannot be put in the NICS denial list! Did I
read that wrong? It is deliberately convoluted, but it does single out 18
USC 925(g)(5), the illegal-alien gun ban.
6. Legislation by Database Management
Getting a person on or off the NICS list depends on "laws,
regulations, policies or procedures governing the applicable record
systems." That applies to every database and set of records
everywhere that NICS draws from. Are those database "procedures"
and "policies" a) known, b) available for review, c) open to
public comment, d) subject to challenge, e) fair, f) subject to time
frames, g) subject to change at whim, and h) are the people who make those
rules known or subject to any jurisdiction we can identify? What about
database "rules" mentioned in the bill? Curious minds want to
know -- before this bill becomes law and grants that much power to data
geeks in some deep dark isolated windowless data processing center
somewhere.
--
OK, so the swift and irregular passage raised eyebrows everywhere, this
you know. The NRA made some of its most devout supporters wonder what's
going on. News media everywhere called it gun control, the NRA insists
it's not. It seems to many observers that something's not right.
And it's not too late to make corrections, demand changes before giving
any further support, and answer the questions that gun owners are asking.
When I was consulting I learned the adage: Don't bring me problems, bring
me solutions. So here are some solutions (in plain English... would need
translation into legalese) to add to the bill:
(a) Failure to act on a request for a correction to NICS in a specified
short time frame shall incur fines, paid by the agency, to the aggrieved
party (a sweet addition many laws could benefit from; why would a diligent
bureaucrat intent on obeying the law object?).
(b) Failure to act on requests in a specified short time frame shall
subject the agency itself to budget cuts based on the length of delay and
the number of people whose rights are held in limbo. If delays exceed a
specified limit, the head of the agency is subject to sanctions (another
sweet feet-to-the-fire remedy for many rampant abuses at federal and local
levels -- activists should start adding related language to bills as
standard procedure).
(c) Delete the words "determination" and "commitment"
as grounds for rights denial, and remove "any legal authority"
as a player, replacing it with "court of competent
jurisdiction."
(d) Any person whose civil rights are wrongly denied in any way by the
NICS system may seek damages, attorney fees, and court costs. Why would an
honest person object? To reduce the risk of hefty costs to government,
make careful determinations before adding names to NICS, instead of
allowing the innocent to appeal after their rights are denied. It's just a
reasonable, common-sense safeguard.
There's more, but that's enough for starters. Will our side act to fix it
or run with it as is? Respond to membership's concerns or increase their
confusion?
Let's get this bill on track -- no one wants nut cases buying guns, and no
one wants people with prescription meds or a group-therapy appointment
denied. Kids forced onto Ritalin because of a schoolyard scuffle shouldn't
permanently lose their rights. And we sure don't want people avoiding
medical attention because they fear it might abrogate their rights
forever.
Sure, government functionaries and McCarthy's side will howl that they
can't possibly live up to these solutions, for a dozen really good
reasons. Let's hear the howls now, not when the country is thrown into a
rights-denial pit with no bottom.
--
In other news, the Associated Press today placed prominent stories in more
than 1,000 U.S. newspapers implying the NRA is working in Congress to
support serious felony crimes committed by, "corrupt gun dealers and
illegal gun traffickers," a complete distortion promoted without a
disclaimer by the Brady anti-gun-rights lobby. The AP ran the virtually
libelous comments, as it always does, from known biased sources.
The NRA is actually working to protect lawful gun owners' privacy from,
"anti-gun activists, headline-hungry politicians and opportunistic
trial lawyers," all worthy goals mentioned near the end of the story.
No other gun-rights group is mentioned in the protective effort at the
Senate Appropriations Committee, where leading Democrats are working to
weaken or eliminate existing protections gun owners currently enjoy.
Alan.