After the Trolley Square Massacre in Salt Lake City, I was concerned about the possibility that it would be used as an excuse to impose more gun control on Americans.
Combined with the emotional fervor in the wake of the Virginia Tech massacre, my concerns are proving justified. On Thursday April 27th, 2007, notorious gun-grabbing U.S. Senator Frank Lautenberg (D-NJ, pictured at left)) introduced a bill entitled the "Denying Firearms and Explosives to Dangerous Terrorists Act of 2007", designed to close the so-called "terror gap" in federal gun law by giving the Attorney General the power to block gun sales to terror suspects. Under current federal gun law, there is no provision to deny suspected terrorists from purchasing a firearm. To no one's surprise, it is co-sponsored by Senator Edward M. Kennedy (D-MA).
On his website, Sen. Lautenberg explains that under the federal Brady Act, a licensed firearms dealer must request a background check through the Federal Bureau of Investigation’s (FBI) National Instant Criminal Background Check System (NICS) before an unlicensed individual may purchase a weapon. However, even if a NICS check reveals that the prospective purchaser is a known or suspected terrorist, nothing in current law prevents that person from purchasing a gun unless he or she meets one of the other disqualifying factors, including felony or domestic abuse convictions.
In January 2005, the GAO produced a report to Sens. Lautenberg and Biden (D-DE) that found that from February 3 to June 30, 2004, a total of 44 firearm purchase attempts were made by individuals designated as known or suspected terrorists by the federal government. In 35 cases, the FBI authorized the transactions to proceed because FBI field agents were unable to find any disqualifying information (such as felony convictions or illegal immigrant status) within the federally prescribed three business days.
Following the GAO report in March 2005, Sen. Lautenberg wrote letters to Attorney General Alberto Gonzales and FBI Director Robert Mueller requesting recommendations on existing laws and Department of Justice (DOJ) regulations permitting terrorists to purchase guns and, in response to the Senator’s request, the DOJ created a department-wide working group that eventually produced a series of recommendations. That working group produced the legislative recommendations that Lautenberg introduced last night.
This week -- more than two years later -- DOJ recommended the introduction of the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007 (S. 1237).” The Administration’s recommendation came only following last week’s tragedy at Virginia Tech and the day before Director Mueller’s testimony in front of Sen. Lautenberg at a Senate Appropriations Subcommittee hearing on the FBI’s 2008 budget.
Sen. Lautenberg’s measure – the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007” – specifically:
- Provides the Attorney General with discretionary authority to deny the transfer of a firearm or the issuance of a firearm or explosives license or permit when a background check reveals that the purchaser is a known or suspected terrorist and the Attorney General reasonably believes that the person may use a firearm or explosives in connection with terrorism.
- Includes due process safeguards that afford an affected person an opportunity to challenge a denial by the Attorney General.
- Protects the sensitive information upon which terrorist watch list listings are based.
Should S. 1237 become law, it would be the first change to the Brady Law since Sen. Lautenberg’s 1996 law that has kept more than 150,000 guns out of the hands of domestic abusers.
Click HERE to view the entire 17-page text of S. 1237 in PDF format.
While Sen. Lautenberg's 1996 law may have kept more than 150,000 guns out of the hands of domestic abusers, not all were active abusers. Some committed domestic violence earlier in life but had since cleaned up their act. Lautenberg's law made no distinction. Lautenberg's 1996 "Domestic Abuser Gun Ban" passed by 97-2 vote in 1996; only Senators Bingaman (NM) and Heflin (AL) voted right. This provision ordered guns removed from homes where a "domestic violence" misdemeanor has occurred. It also expanded the list of persons deprived of their Second Amendment rights by including -- for the first time in U.S. history -- certain misdemeanor convictions, opening the door to depriving firearms to all misdemeanor offenders, including non-violent ones (such as traffic violators, check bouncers, etc). The provision also threatened to permanently disarm parents in those jurisdictions where officials have successfully prosecuted parents for merely spanking their children under the charge of "domestic violence."
Unlike the infamous "no-fly" lists, which provide people with no way to appeal, S. 1237 does provide an avenue of appeal of sorts. However, Lautenberg's previous gun-grabbing efforts, combined with some language of this proposed law, give me cause for concern. Here's the problematic language from page 11 of the 17-page dcoument:
(b) In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States. The petition shall be filed not later than 60 days after the petitioner has received actual notice of the Attorney General's determination under Section 922A or 922B of this title. The court shall sustain the Attorney General's determination upon a showing by the United States by a preponderance of evidence that the Attorney General's determination satisfied the requirements of section 922A or 922B, as the case may be.
Two problems here. First, the inclusion of "suspected" as well as known terrorists. Who determines who is a "suspected" terrorist? What's the criteria? How does one find out whether one is a "suspected" terrorist, and what legal remedies exist for the accused person to remove the designation. Remember the hassle Dr. Steven Hatfill endured after being declared a "person of interest"? One might not find out that one is a suspected terrorist until one applies for a firearm permit. The government does make mistakes, you know. And can we really trust a scandal-ridden, affirmative-action hack like Alberto Gonzales to make that determination? He's run the Justice Department just like a typical old-style Latin American caudillo.
The second problem is in the phrase "preponderance of evidence". This is the standard for civil accountability, not criminal accountability. If we are to deny someone a fundamental Constitutional right, we should be using the "beyond reasonable doubt" standard. The burden of proof needs to be upon the government, NOT the individual.
Neither the National Rifle Association nor the Gun Owners of America have picked up on this development yet. However, the Second Amendment Foundation is on top of this situation and issued the following press release, reproduced in its entirety:
For Immediate Release: 5/1/2007
BELLEVUE, WA – Attorney General Alberto Gonzales’ troubling support of legislation that would allow him and future attorneys general the arbitrary power to block firearms purchases without due process is cause for him to step down as the nation’s highest ranking law enforcement officer, the Second Amendment Foundation said today.
The bill, S. 1237, was introduced last week at the Justice Department’s request by Sen. Frank Lautenberg (D-NJ), one of the most extreme anti-gunners in Congress. Called the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007,” this legislation would give the Attorney General discretionary authority to deny the purchase of a firearm or the issuance of a firearm license or permit because of some vague suspicion that an American citizen may be up to no good.
“This bill,” said SAF founder Alan Gottlieb, “raises serious concerns about how someone becomes a ‘suspected terrorist.’ Nobody has explained how one gets their name on such a list, and worse, nobody knows how to get one’s name off such a list".
“The process by which someone may appeal the Attorney General’s arbitrary denial seems weak at best,” Gottlieb suggested, “and there is a greater concern. When did we decide as a nation that it is a good idea to give a cabinet member the power to deny someone’s constitutional right simply on suspicion, without a trial or anything approaching due process"?
“We’re not surprised that General Gonzales has found an agreeable sponsor in Frank Lautenberg,” Gottlieb observed. “The senator from New Jersey has never seen a restrictive gun control scheme he did not immediately embrace, and S. 1237 is loaded with red flags. It would allow an appointed bureaucrat the authority to suspend or cancel someone’s Second Amendment right without even being charged with a crime".
“Attorney General Gonzales has no business asking for that kind of power over any tenet in the Bill of Rights,” Gottlieb said. “He took an oath to uphold the Constitution, not trample it. Perhaps it is time for him to go.”
The Second Amendment Foundation (www.saf.org) is the nations oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.
And the rights of the Second Amendment right are absolute and unconditional for all law-abiding citizens. The militia clause is intended to be an explanatory clause, relating to the tenor of the times when it was framed, NOT a conditional clause. One does not need to belong to a militia, the National Guard, or a police force to lawfully possess firearms.
Contact your U.S. Senator and urge him or her NOT to support S. 1237. Remind your senator that the War Against Terror is not supposed to be a War Against The Constitution. Alaska residents can also find contact links for Ted Stevens and Lisa Murkowski on the sidebar of this blog.