HB 2640 Gun Ban Worse Than Originally Thought
Powell Gammill 
Website: Gammill For Congress
Blog: Fascist Nation
Date: June 28, 2007
Subject: Gun Rights

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 take it.

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.

*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 illegal regulation.

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 worthless.

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.