By Dave Koppel
The Toomey-Manchin Amendment which may be offered as soon as Tuesday
to Senator Reid’s gun control bill are billed as a “compromise” which
contain a variety of provisions for gun control, and other provisions to
enhance gun rights. Some of the latter, however, are not what they
seem. They are badly miswritten, and are in fact major advancements for
gun control. In particular:
1. The provision which claims to outlaw national gun registration in fact authorizes a national gun registry.
2. The provision which is supposed to strengthen existing federal law
protecting the interstate transportation of personal firearms in fact
cripples that protection.
Let’s start with registration. Here’s the Machin-Toomey text.
(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.”.
The limit on creating a registry applies only to the Attorney General
(and thus to entities under his direct control, such as the Bureau of
Alcohol, Tobacco, Firearms, and Explosives). By a straightforward
application of inclusio unius exclusio alterius it is
permissible for entities other than the Attorney General to create gun
registries, using whatever information they can acquire from their own
operations. For example, the Secretary of HHS may consolidate and
centralize whatever firearms records are maintained by any medical or
health insurance entity. The Secretary of the Army may consolidate and
centralize records about personal guns owned by military personnel and
their families.
The Attorney General may not create a registry from the records of “a
person with a valid, current license under this chapter.” In other
words, the AG may not harvest the records of persons who currently hold a
Federal Firearms License (FFL). Thus, pursuant to inclusio unius, the AG may centralize and consolidate the records of FFLs who have retired from their business.
Under current law, retired FFLs must send their sales records to
BATFE. 18 USC 923(g)(4); 27 CFR 478.127. During the Clinton
administration, a program was begun to put these records into a
consolidated gun registry. The program was controversial and (as far as
we know) was eventually stopped. Manchin-Toomey provides it with legal
legitimacy.
The vast majority of FFLs are small businesses, often single
proprietorships. Only a tiny fraction of FFLs are enduring corporate
entities (e.g., Bass Pro Shops) which will never surrender their FFL. By
consolidating and centralizing the records of all out-of-business FFLs,
BATFE will be able to build a list of most people in the U.S. who have
bought a gun from a store. The list will not be fully up-to-date for
every gun owned by every individual, but the list will identify the very
large majority of gun owners.
(The maxim discussed above is sometimes rendered as Expressio unius est exclusio alterius.)
Now for transportation. The 1986 Firearms Owners’ Protection Act
immunizes from state law prosecution the transportation of an unloaded
and inaccessible (e.g., in the trunk of your car) firearm through a
state. 18 USC 926A. So if you are driving from Pennsylvania to Vermont
to go hunting there, you can travel through New York State without
needing to acquire a NY pistol permit. (Which NY won’t issue anyway,
since NY only issues to residents.) Toomey-Manchin includes some
explicit language to make clear what was already implicit in FOPA, that
such travel can include situations in which, while traveling, you stop
to eat, refuel, or rest:
SEC. 128. INTERSTATE TRANSPORTATION OF FIREARMS OR AMMUNITION.
(a) In General.-Section 926A of title 18, United States Code, is amended to read as follows:
“926A. Interstate transportation of firearms or ammunition
“(a) Definition.-In this section, the term ‘transport’-
“(1) includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental to the transport; and
“(2) does not include transportation-
“(A) with the intent to commit a crime punishable by imprisonment for a term exceeding 1 year that involves a firearm; or
“(B) with knowledge, or reasonable cause to believe, that a crime described in subparagraph (A) is to be committed in the course of, or arising from, the transportation.
But notice part (2) of the new definition: a new exclusion for any
firearms crime punishable by more than year of imprisonment. In some
states, such a crime includes merely not having a state-issued gun
permit. So now let’s suppose that the Pennsylvanian is going to Maine.
On the way, he travels through Massachusetts. Under current law, FOPA
protects him. Under Manchin-Toomey, Massachusetts can arrest and
imprison him, and he will have no federal defense. In Massachusetts,
possession of a firearm without a state permit is punishable by
imprisonment up to to 2 years. Possession outside one’s home or business
is a sentence of 2.5 to 5 years, with a mandatory minimum of 18 months.
New Jersey and New York City also have penalties of over one year for
simple possession without a local permit.
Maybe the Pennsylvanian might qualify for some exemption under the
laws of Mass., NYC, or NJ. Or perhaps not. What we know for sure is that
today the Pennsylvanian is protected by FOPA, and if Manchin-Toomey
passes, he will not be.
There are several other states where the relevant penalty is up to
one year. Every one of them can exempt itself from FOPA by simply
increasing the penalty to 367 days.
The 1986 FOPA is also known as Volkmer-McClure, for its prime
sponsors, Democratic Rep. Harold Volkmer of Missouri, and Republican
Sen. James McClure of Idaho. Michael E. Hammond was McClure’s manager
for the bill. Hammand has identified a variety of other potential problems in Manchin-Toomey.
There are fairly small number of attorneys with serious expertise on
federal firearms laws. Senator Charles Schumer, who works closely with
Michael Bloomberg’s lobby, is likely to have had the full legal
resources of that very well-funded organization. Conversely, based on
off-the-record inquiry, I have not found any indication that Senator
Toomey had any specialist expertise on his own side.
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.
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