The Capitol Hill Report

Answering Objections to Rand Paul’s “No Gun Registration” Amendment

In May, 2011, Congress voted to reauthorize, for four years, three provisions of the PATRIOT Act:  a provision allowing the Justice Department to demand “business records” (including gun records like 4473’s); a provision allowing the investigation of so-called “lone wolves” who are not actually connected with any terrorist organization; and a provision allowing “roving wiretaps.”

In connection with “business records,” current law specifically allows the Justice Department (FBI/ATF) to go to a secret (FISA) court and obtain an order to look at 4473’s, if they are “related to” a terrorism investigation.

We were concerned (1) that the secret (FISA) court generally allows the FBI/ATF to do whatever it wants, (2) that there was a real danger that an anti-gun administration could use a “fishing expedition” to demand lots of 4473’s (and perhaps even all of them), and (3) that the Obama administration had shown an inclination to engage in just this sort of anti-gun activity.

Therefore, with our encouragement, Senator Rand Paul (R-KY) offered an amendment to the reauthorization which would insulate 4473’s from demands under the “business records” provisions -- and apply the protections of the 1986 McClure-Volkmer Firearms Owners Protection Act to any effort by the Obama administration to gain access to the 4473’s.

Gun Owners of America has received several arguments from those who opposed the Paul language, but these arguments are full of mischaracterizations.  Hence, GOA would like to set the record straight.

ARGUMENT #1: “There have been no reports of the current PATRIOT Act being abused with respect to firearms records...”

ANSWER:     Note the way this argument parses its misrepresentation to avoid overt lies.

The following is true:

* There have been ample reports of abuse with respect to the FBI's use of the act. For example, its own inspector general found that the FBI illegally collected more than 2,000 telephone calls between 2002 and 2006.

* The Obama administration has illegally gone after firearms records in large numbers.       The most obvious example is the illegal proposal currently moving forward to require the reporting of gun records of multiple semi-auto sales -- a proposal which violates exactly the same provisions of the McClure-Volkmer Firearms Owners Protection Act that the Paul amendment sought to defend.

* In at least two states -- Connecticut and Arizona -­ the Obama administration is threatening gun dealers who fail to turn over 4473 information with respect to "suspicious" persons who cannot be shown to be "prohibited persons" (whom federal law would require to be reported).  And, in Connecticut, at least one FBI agent has testified that a gun owner's constitutionalist views make him a terrorist who can be banned from owning a gun for one year under Connecticut law.

* Finally, the fact that there have not been more "reports" of abuses is a result of the fact that those abuses are, generally, classified, and it would be a felony to "report" them.

So, with all the evidence of illegalities, abuse, and antipathy to the Second Amendment by the Obama administration, why have the opponents of Paul amendment suddenly become so trusting of Obama's intentions?

If there is no danger that the Obama administration will try to use terrorism legislation to go after 4473's, the Paul amendment would simply have no effect.      Why would this be a problem for anyone?

ARGUMENT #2:  The Paul amendment was "poorly drafted."

ANSWER: Paul’s opponents never specifically explains why the drafting was inadequate, but consider this:

Our legislative attorney, Michael Hammond, drafted the Paul amendment.  He also drafted the Smith amendment to prevent the FBI from taxing gun buyers in the late 1990s, early drafts of the National Parks gun ban repeal, D.C. gun ban repeal, and reciprocity amendments in recent years.

And, as the Senate Steering Committee council in 1985, he drafted the final cut of the McClure­Volkmer Firearms Owners Protection Act before it was introduced the final time.

It was necessary to draft the Paul amendment the way it was drafted in order to make it in order following the invocation of cloture.

Paul’s opponents don’t seem to understand the Senate rules -- as legislative proposals must be drafted in certain ways in order to comply with the rules.  For example, after the anti-gun actions of Louisiana law enforcement following Hurricane Katrina, the FEMA amendment (which had been poorly drafted by certain pro-gun lobbyists) was declared by the Senate parliamentarian to be out of order because it was "legislation on an appropriations bill."  The Senate staff had to call Mr. Hammond in to redraft the provision so it would comply with the Senate rules and the issue could get to conference.

ARGUMENT #3: Under federal anti-terrorism law, a demand for gun records must be made by the FBI director, deputy director, or Executive Assistant Director for National Security.

ANSWER:     Our biggest gun problems with the Obama administration have not come from low-level careerists. They have come from the anti-gun high level officials who would be authorized to demand 4473's under these provisions.

ARGUMENT #4: Application to seize 4473's under section 215 of the terrorism legislation must be "made to a federal judge," who has the power to modify or minimize the order.

ANSWER:     The statement teeters on the verge of deception.

The "federal judge" in question is a judge on the secret Foreign Intelligence Surveillance Act (FISA) court. The proceeding is ex parte, with the Department of Justice being the only advocates in the room.  And, we are told from statements on the Senate floor, through much of its existence, the FISA court never denied a request for a warrant.

Second, the standard by which the FISA court judges the request for a warrant is whether it is "relevant to an authorized investigation..."     Would the seizure of every 4473 in the country be "relevant to" the investigation of terrorism?        Yes.  The problem is that violence done to the Constitution would far exceed any value in the investigation of terrorism.

ARGUMENT #5: If the government could not go after 4473's under anti-terrorism legislation, "it would have used the Gun Control Act's provision[s]..."

ANSWER:     You mean, the McClure-Volkmer Firearms Owners Protection Act?

This argument is particularly unfortunate.

In 1986, there was great rejoicing over passing the McClure-Volkmer Firearms Owners Protection Act, which allowed inspection of gun records under very narrow circumstances:

* in connection with a bona fide criminal investigation;

* in connection with a trace;

* in connection with an annual inspection.

Now, Paul opponents are bemoaning the fact that, if the FBI/ATF cannot demand gun records under the broad open-ended provisions of anti-terrorism legislation, it would use McClure-Volkmer.

First of all, the FBI/ATF can always use McClure­ Volkmer.  Granting it terrorism-related powers to seize 4473's in the absence of a criminal investigation did not make its McClure-Volkmer powers go away.

Second, McClure-Volkmer required a bona fide criminal investigation.       Following the defeat of the Paul amendment, the FBI/ATF can ask for permission to seize 4473's merely because they are "relevant" to its fishing expedition.

Third, the same senator who trumpeted the semi­opposition to the Paul amendment (Saxby Chambliss (R.-Ga.)) went on to complain (disingenuously) that, if the Paul amendment were adopted, the FBI would not have been able to apprehend the Fort Hood shooter before-the-fact!

You can't have it both ways: If you're going to argue that the Paul amendment will take away powers from the FBI and ATF, you can't proceed to argue that the Justice Department would simply obtain the 4473's by another means.

ARGUMENT #6: "This amendment was rejected by 85 Senators..."

ANSWER: Minority Leader Mitch McConnell (R-KY) and Assistant Minority Leader Jon Kyl (R-AZ) whipped the Republican caucus in opposition to this amendment -- and on behalf of the acceptance of the deal they had cut to extend the Obama administration's broad powers for four-years.  In an area which is substantively complex with ideological countercurrents, Paul’s opponents have further confused the situation by falsely implying that his amendment would expand the FBI/ATF's use of their anti-gun powers.

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