The Capitol Hill Report

Trafficking Bill Ignores Fast and Furious

Senate Gun Trafficking Bill Ignores Abuses Under Fast & Furious

-- Would penalize gun owners for minor infractions

by Michael Hammond

GOA Legislative Counsel

SUMMARY

The Leahy-Gillibrand-Kirk legislation (S. 443) was introduced on March 4 and is entitled the “Stop Illegal Trafficking in Firearms Act of 2013.”

While presented as a bipartisan “compromise” draft, the bill threatens to put gun owners in jail with very long sentences for minor infractions.

Essentially, S. 443 would impose a 15-year prison sentence for “negligent multiple sales by a dealer,” “negligent gifting” or “negligent raffling.”

Senate Gun Trafficking bill targets gun owners -- but not Eric Holder for his role in Operation Fast & Furious

Increasingly, there are more and more individuals who are “prohibited persons” for non-violent reasons -- for instance, they smoke marijuana or they are military veterans suffering from maladies such as PTSD.

But if this bill is passed, any person who sells to such prohibited persons two or more firearms ... or gives them a firearm as a gift ... or raffles a firearm (where they are the recipient) ... does so only at the considerable risk of spending 15 years in a federal penitentiary.

THE CONTEXT

People should understand how this bill is being sold on MSNBC –- and how it will be sold if it becomes law:

* It is being sold as a victory for Obama over the “gun lobby” and the GOP.

* It is being sold as “points on the board” platform for further gun control demands.

* It is being sold as “cover” for the 13 Democrats in pro-gun states who are up for reelection in 2014.

Ryan Grimm, a regular MSNBC commentator, said this on the Chris Jansing show (3/5/13):

I think if you can move [S. 443] through, then background checks probably become easier.  Because people have, you know, taken a “tough vote” on guns and they’ve decided that they’re going to do something.  ...  Because what was the point then of them going forward and taking a tough vote if they don’t take then a second one?  Because then you’re going to get hit from both sides.

So Republican Senators need to understand this:  If they sing “cum ba ya” with the “red state” Democrats over S. 443, they take the “gun issue” off the table in 2014.  And if they do that, Democrats will probably retain control of the Senate.

THE SPECIFICS

At its core, section 3 imposes a 15-year prison sentence if you:

* “... attempt or conspire to purchase, any firearm ... from any person ... on behalf of, or at the request or demand of any other person ... having reasonable cause to believe that such other person [is a prohibited person under 18 U.S.C. 922(d) and (g)]...”

or

* as an individual or a dealer, “transfer ... 2 or more firearms to another person ... [if you have] reasonable cause to believe [that the recipient is a prohibited person under 18 U.S.C. 922(d) and (g)]...”

Who are prohibited persons?

Anyone who smokes marijuana is “an unlawful user of ... any controlled substance...” and is a prohibited person under 18 U.S.C. 922(d)(3) and (g)(3).

There are also 150,000 veterans who have had their gun rights taken away pursuant to the Veterans Disarmament Act of 2008.  And, there is a real possibility that, under that same act, tens of millions of people with Alzheimer’s, ADHD, or PTSD (including police, firemen, and soldiers) could be fed into the NICS system by Medicare, Social Security Disability, Medicaid, and the Department of Education.

First example:  So if you’re a gun dealer and sell two guns to someone who a trier of fact determines, after the fact, you “should have known” was a marijuana smoker, you are subject to a 15-year prison sentence.

In addition, you are subject to draconian forfeiture, racketeering, and money laundering penalties.

Now, it is true that 922(d) [transferring a gun to a prohibited person] currently has a negligence standard in its text.  But McClure-Volkmer inserted language in section 924(a)(2) which prohibited the imposition of criminal penalties for non-knowing violations.

Second example:  If you raffle a gun to a prohibited veteran or to someone who smokes marijuana ... or if you give a gun as a Christmas present to (and at the request of) your grown son who fits one of these two categories ... you can be sent to prison for 15 years -- subject only to a subjective determination about whether you should have known more than you did.

Note several things:  You don’t need to know the person is a prohibited person under either example.  The recipient doesn’t need to know they’re a prohibited person.  You don’t need to do anything more than plan (“conspire”) to procure the gun.  The recipient doesn’t need to be on the NICS list to be a prohibited person.  The “exceptions” in subsection (d) of 18 U.S.C. 932, under the Leahy-Gillibrand-Kirk bill, merely repeat the “negligence” standard.

In fact, under section 4, if you even “intend” to sell a firearm to a person who turns out to be a marijuana smoker -- or one of the prohibited military veterans suffering from PTSD -- you become a prohibited person yourself.

Thus, selling multiple guns as a dealer, giving a gun as a gift, or raffling a gun are effectively outlawed -– or at least pursued only “at your own risk.”

One last thing:  The S. 443 purports to go after “gun trafficking,” but it does nothing to punish those in the Justice Department who facilitated the biggest gun running scheme in modern history -- that of Operation Fast & Furious.

Is it possible that this this bill can credibly deal with this issue without addressing the fact that our government took part in helping put thousands of guns into the hands of gun runners?  Should this bill ignore that our government was, in part, responsible for flooding the border region with illegal weapons that were used to murder hundreds of Mexican citizens and at least one federal agent?  We think not.