NICS Expansion Bill Worse
Than Originally Thought

HR 2640 full of holes

Gun-rights lobbyists differ on how good or bad the bill really is.

Read the followup release here
Illegal Aliens Exempt If Amnesty Bill Passes; Rights Restoration Clause Died In 1992;
Attorney General Would Get Arbitrary Control; Any Database Manager Can Issue "Procedures";
Undefined "Determination" Can Add You To The Ban List; Still time to fix it

NOTE: This controversial bad bill was defeated.
Read about the NRA-improved and enacted version.



FOR IMMEDIATE RELEASE
June 26, 2007
Contact: Felicity Bower, info below

 

Many NRA Members "Confused" by Proposed Gun Bill

Five-fold increase in gun-ban list is "troubling"

Secretive passage rankles even hard core

Could be fast-tracked through the Senate this week

 

by Alan Korwin, Author
Gun Laws of America
http://www.gunlaws.com/books.htm

Permission to circulate granted.

The swift passage of a gun-ban bill in the U.S. House, without committee hearings, floor debate or a recorded vote and possibly without even a quorum present, has NRA members nationwide asking what happened.

In a nationally released memo addressing the confusion, the NRA said this is "nothing unusual," further confusing their members. Swiftly adopting a gun-control measure on a voice vote has not occurred in at least fifteen years, if ever, according to Bloomfield Press, the largest publisher of gun-law books in the country.
http://www.gunlaws.com

The NRA, long considered a feared and powerful gun-rights lobby, allied itself with the most ardent anti-gun-rights forces in the House to quickly push through a bill that would massively increase the NICS Index -- the database of people who cannot pass an FBI background check for purchase of a firearm.

Psychiatrists and doctors would be granted an increased role in determining who gets on or off the list. The medical community has in the past exhibited pronounced anti-gun behaviors, bordering in some cases on hoplophobia, a morbid fear of weapons of any kind.

The action was taken during the morning "Suspension Calendar," normally reserved for "non-controversial" bills. Its use to slip through an expansion of gun control is highly irregular, with no similar action known. The bill is HR 2640, "The NICS Improvement Act," posted here:
http://www.gunlaws.com/DHSinNICS.htm

No one knows how many of the 21 million records Congress seeks will truly identify Americans who lack the legal right to have a firearm. The effect on guns already owned by any of the 21 million individuals seems clear -- they would be subject to confiscation. At least, a transfer of ownership seems a likely requirement if the law is enacted and those people's names are poured into the list. There are no plans to notify these people.

An error rate of just one-tenth of one percent (very low for government work) would mean that 21,000 Americans will have their rights unjustly denied if the bill becomes law. These people will then be forced to line up and go through an arduous, time-consuming, complex and expensive process to prove their innocence. The government is not required to cooperate, though the law does provide a framework for getting rights restored, at NRA's insistence. (The bill says agencies "shall" act to keep records accurate, but nothing happens if they don't; no time frames for corrections are specified.)

News reports have shed no light on the accuracy or validity of the impending additions, or any preparations to handle a flood of appeals. An error rate of 1% would mean that 210,000 innocent American citizens would lose their right to keep and bear arms through false "guilty" verdicts. No one knows who is on the list.

The existing list of criminals, illegal aliens and other "prohibited possessors" is 3,960,981 after 11 years of careful development (as of Dec. 31, 2005). Under the proposed law, at one fell swoop, it will grow to five times its current size. More than ten percent of American adults would be barred from exercising the fundamental civil right to arms. The NRA correctly points out that Americans who have the right medical disabilities do belong on the list.

"It's scary, when both the main defender of this civil right and the enemies of that right combine and work to deny rights to so many people at once," said an insider who prefers to remain anonymous. "Are the records accurate? Can people unjustly accused swiftly restore their rights and reclaim their place in society? Shouldn't we check the validity before we summarily add so many people to the list, and not just add them and let the innocent suffer? Why are the NRA and anti-gun Democrats trying to move so fast?" Carefully checking 21 million people's records would of course slow down the process, and delay entering all the names.

Emails, blogs and chat rooms are filled with such questions, even as mainstream news reports praise "the first significant gun-control legislation in a decade," ignoring a dozen gun bills Congress has passed in the last ten years. Despite the jubilant mainstream headlines, the NRA memo says this is "NOT GUN CONTROL!" (emphasis theirs). After reading the bill, it certainly seems accurate to call it gun control, a term now used almost exclusively to refer to gun bans of one sort or another.

In a related but unreported development, experts note that the expanded NICS system, if combined with information from the Real ID Act, could provide a centralized federal monitoring facility for the entire population, under the guise of crime control. Privacy advocates have expressed concern over the possibility, though many officials see this as a good thing.

The Brady law, ostensibly to control handgun sales, initiated the entire project in 1993, at a cost of $250 million, plus subsequent allocations. The new bill adds $375 million per year for the next three years. In a 1998 surprise, the Brady Handgun law was automatically expanded to include all firearms, not just handguns.

The new law has many built-in protective requirements, and methods of appeal for those wrongly accused, but provides no punishment of government agents who fail to comply or to keep records accurately, placing the effectiveness of those safeguards in doubt. The Justice Dept. is supposed to give Congress a list of all the agencies that are not complying, once a year. In an odd requirement of unknown usefulness, various mental health institutions and providers are given power to certify former mental cases as now qualified to have guns.

In the past, federal and state officials have been known to stonewall, delay, deceive and claim impotence when confronted with requests to have rights restored to the innocent, or to the reformed. Congress has refused to fund such reviews, which are required by law, since 1992, effectively eliminating a person's chance for due process.

In a copyrighted story on 6/21/07, WorldNetDaily said:

"Rep. Carolyn McCarthy, D-N.Y., announcing a provision to allow doctors to ban people from owning guns... The plan allows names to be entered into the NICS system based solely on a physician's diagnosis or prescription of a medication: adults who have taken Ritalin and soldiers with Post Traumatic Stress Disorder would be classified as mentally ill and given the same opportunity to own firearms as convicted felons: None." Simple diagnosis or medical prescription does not appear to be in the bill as grounds for a ban. Ritalin and PTSD are not listed at the present time, though critics of the measure are concerned that such things could change.
http://www.worldnetdaily.com/

Gun Owners of America Executive Director Larry Pratt called the scheme, "conviction by diagnosis," which is true in cases where a person is officially deemed dangerous and other conditions are met. GOA is a national gun rights group opposing the measure. Pratt points out that many people will be taken by surprise when they try to buy a firearm and learn they have been unknowingly lumped into a category with murderers, rapists and illegal aliens. http://www.gunowners.org

 

-End of first report-

 

 

FOR IMMEDIATE RELEASE (Second report)
June 28, 2007
Contact info at end

 

HR 2640 Gun Ban Worse Than Originally Thought

 

Illegal Aliens Exempt If Amnesty Bill Passes

Rights Restoration Clause Died In 1992

Attorney General Would Get Arbitrary Control

Any Database Manager Can Issue "Procedures"

Undefined "Determination" Can Add You To The Ban List

Still time to fix it

Associated Press takes typical biased swipe at NRA

 

by Alan Korwin, Author
Gun Laws of America
http://www.gunlaws.com

 

NOTE: This controversial bad bill was defeated.
Read about the NRA-improved and enacted version.

 

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) 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. With an appeals process in place it is a reasonable line in the sand, andI 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. Can the AG? Even an agency with 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.

Harlon Carter warned us to ''expect the least favorable interpretation from our greatest enemies' and that still applies. Especially since the loudest gun-rights deniers in Congress drafted this bill.

 

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.

 

 

Contact:
Alan Korwin
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alan@gunlaws.com
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