HB 2640 Gun Ban Worse Than Originally Thought
Gammill For Congress
Date: June 28, 2007
by Alan Korwin, Author
Gun Laws of America
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
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
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.
*Some lobbyists (who I think should know better) have expressed a trust
that the authorities cannot issue a regulation, policy or take action
that exceeds authority delegated to them by law. They say it would have
no force of law. That is just wrong.
Feds, and BATFE in particular, are famous for stretching the limits of
what they can legally do, and waiting for courts to rein them in, which
often never happens. And if a federal agency does clearly exceed its
authority, so what -- you are subject to arrest unless and until
someone can successfully sue the government and bring it back into
line, a process that takes years and big bucks. Courts, in support of
the bureaucracy, frequently deny any effort to attack the underlying
Need an example? The NICS system requires all records used in a
background check to be destroyed INSTANTLY. The paragraph that says so
says "instantly" five times. BATFE interpreted that to mean "within six
months," and they could keep a backup copy. Years later they were
forced through the NRA's efforts and huge national pressure to destroy
those records more quickly.
The law says if the NICS system is down, dealers don't have to use it
(NRA put that there as a safeguard). So BATFE just threatened to pull
the license of any dealer who followed that law, making that guarantee
So much for operating within the limits specified in statute. There is
even uncertainty as to whether, if NICS looks at records in Scotland
Yard or Canada's databases, the record of those searches is destroyed,
or remains available forever in the other country.
One more example for good measure. BATFE is famous for using a machine
shop and experts to get broken junk to fire, and then charging the
owner with illegal possession of a firearm. The feds will stretch the
HB 2640 provisions as far as they can, beyond any reasonable
interpretation, and then some, in line with their standard procedures.
The way it's currently written, they won't have to stretch much to
reach any conclusion they want.