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April 15, 2013

"Gun Rights" Group: Boy, We Really "Snookered" the Gun Controllers in Toomey-Manchin
Volokh: No, They've Snookered You

The other day I had complained that our side, collectively, is not very good at a writing legislation, and the other side is; the result is that our side tends to believe it has won a victory, misunderstanding the words in legislation, when in fact it has lost.

Sometimes people may think they are far smarter than they actually are. For example, if you've really "snookered" your opponents in a deal not yet finalized, should you go bragging about the secret victory before it's in hand?

Mr. Gottlieb said that despite claims to the contrary, the amendment that would expand checks to sales online and at gun shows is “not registration” and went on to list a host of gun-rights protections in the measure, such as allowing interstate handgun sales for dealers and protections for veterans, for example.

“It’s a Christmas tree,” Mr. Gottlieb said. “We just hung a million ornaments on it.”

“We’re taking the background check and making it a pro-gun bill,” he added. “Unfortunately, some of my colleagues haven’t quite figured it out yet because they weren’t sitting in the room writing it,” he continued. “My staff was. I’ll be perfectly candid about it. This will probably break on Monday in the Wall Street Journal.”

“If you really read what’s in the Manchin-Toomey bill — man, it’s a godsend,” he went on to say. “We win rights back like crazy.”

Is he right? Well, Dave Koppel of the Volokh Conspiracy has no pride of authorship in this bill and so isn't tempted to egotistically brag about how much he's accomplished in negotiating it. And he finds it is in fact the right which once again has gotten snookered.



The Toomey-Manchin Amendment which may be offered as soon as Tuesday to Senator Reid’s gun control bill are billed as a “compromise” which contain a variety of provisions for gun control, and other provisions to enhance gun rights. Some of the latter, however, are not what they seem. They are badly miswritten, and are in fact major advancements for gun control.

In particular:

1. The provision which claims to outlaw national gun registration in fact authorizes a national gun registry.

2. The provision which is supposed to strengthen existing federal law protecting the interstate transportation of personal firearms in fact cripples that protection.

Let’s start with registration. Here’s the Machin-Toomey text.

(c) Prohibition of National Gun Registry.-Section 923 of title 18, United States Code, is amended by adding at the end the following:
“(m) The Attorney General may not consolidate or centralize the records of the
“(1) acquisition or disposition of firearms, or any portion thereof, maintained by
“(A) a person with a valid, current license under this chapter;
“(B) an unlicensed transferor under section 922(t); or
“(2) possession or ownership of a firearm, maintained by any medical or health insurance entity.”.

The limit on creating a registry applies only to the Attorney General (and thus to entities under his direct control, such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives). By a straightforward application of inclusio unius exclusio alterius [the inclusion of one excludes others -- that is, by specifying that it is the AG that is forbidden to establish the list, it also specifies that others are not so forbidden-- ace] it is permissible for entities other than the Attorney General to create gun registries, using whatever information they can acquire from their own operations. For example, the Secretary of HHS may consolidate and centralize whatever firearms records are maintained by any medical or health insurance entity. The Secretary of the Army may consolidate and centralize records about personal guns owned by military personnel and their families.

The Attorney General may not create a registry from the records of “a person with a valid, current license under this chapter.” In other words, the AG may not harvest the records of persons who currently hold a Federal Firearms License (FFL). Thus, pursuant to inclusio unius, the AG may centralize and consolidate the records of FFLs who have retired from their business.

Under current law, retired FFLs must send their sales records to BATFE. 18 USC 923(g)(4); 27 CFR 478.127. During the Clinton administration, a program was begun to put these records into a consolidated gun registry. The program was controversial and (as far as we know) was eventually stopped. Manchin-Toomey provides it with legal legitimacy.

And further, while there is broad agreement that those who are mentally unstable and predisposed to violence (or perhaps hallucination) should not have guns, the bill, as I understand it, establishes no standard for stripping a person of his 2nd Amendment rights. Does he have to be found crazy by a competent tribunal with the usual procedural safeguards, such as a two-party, adversarial contest of facts, or can someone be stripped of his right to own a gun by a single party, such as a doctor noting that a patient was once prescribed an anti-anxiety medication?

And what exactly must the finding be to strip someone of his right to own a gun? If there is no specific standard -- such as the one I suggested above, "unstable + dangerous" -- then the state can take away someone's gun rights based on any contact whatsoever with the medical, psychiatric, or social-services establishment -- any note ("complains of night terrors," "has chronic panic attacks," "suffers from depression") could be the pretext for taking away a person's constitutionally-guaranteed rights.

Here's how that completely-innocent completely-law-abiding citizen had his rights denied by the state.

The NY SAFE Act requires “mental health professionals, in the exercise of reasonable professional judgment, to report if an individual they are treating is likely to engage in conduct that will cause serious harm to him- or herself or others.”

If such a determination is made, “the Division of Criminal Justice Services will determine whether the person possesses a firearms license and, if so, will notify the appropriate local licensing official, who must suspend the license. The person’s firearms will then be removed.”

Note that the state is not required to go through the difficult, expensive process of mounting a two-party (adversarial) action in a tribunal -- all they have to do is add you to a list, and then poof, your rights are gone.

It's sometimes important to think about these things in terms of general economic theory (and maybe game theory -- imagining the incentives and the favored strategies of players in the rule-set you've created).

The easier something is, the cheaper it is, the more you'll have of it.

Do we want the negation of someone's Constitutional rights to be so easy? Shouldn't the state be required to prioritize from whom it wants to take guns? People only prioritize when there's a budget, of time or resources or manpower or usually all three. Otherwise, they can just pursue a brain dead policy of "take away the guns of everyone whose name crosses our desks," which will be the bureaucratic policy, of course, as it's the easiest, and the most CYA. Bureaucracies exist to make life easier for themselves and more difficult for the supposed clients they allegedly serve.

Besides failing the economics test, this is plainly unconstitutional. The Fourteenth Amendment guarantees that no American will have his liberty taken from him absent due process, and obviously a single person writing a single critical note, with a single bureaucrat than thoughtlessly putting a name on a list, is not "due process."

Due process means the state is required to present evidence and experts, and the defendant (the person whose rights are to be abridged) has the opportunity to do the same.

In the New York case, the man did get his guns back... after launching a costly legal action against the state. Note that no precious prosecutorial resources were required to strip him of his rights... but that the citizen was required to expend his precious resources to hire a lawyer in order to get them back.

The state's action was free as air. Just adding a name to list. Takes, literally, three seconds for a good typist. The citizen's counter-action, on the other hand, was costly.

This will not do. It should not be up to the individual citizen to fight the state with its enormous resources on his own dime. It should be up to the state to first bear its own share of the costs of pursuing the action in the first place, at the very least.

Otherwise, your right becomes nothing at all. You have the "right to bear arms," except that any bureaucrat may add you to a list and immediately take your right away, and then its up to your to spend large portion of your income to wrest that right back, and maybe you'll get it back, someday, if a judge isn't playing the CYA game himself.

The most that a one-sided (ex parte) note from a doctor should be able to accomplish is, say, a seven-day hold, and after seven days the state either needs to present its case to a judge as to why this person is such a threat that we may proactively strip him of his liberty, before he's done anything illegal at all, or else end the hold.

And that's actually generous towards the state -- after all, they've proven nothing at all, incurred no expense, devoted no thought to this particular citizen. They're being permitted to strip him of his rights for a week based on nothing at all. I think a week is plenty when you've put forward nothing at all.

By the way: It's very difficult to get people to seek treatment for depression or anxiety or other psychological problems, because such things are often viewed as sins or at least weaknesses of character.

I cannot imagine anything which would be more effective at warning skittish citizens away from ever seeking treatment for their ills than a state which thoughtlessly strips them of rights and puts them on a Watch List over the most common (and harmless) of ills. Social stigma keeps people from seeking psychiatric help for even the most common of ailments; what's a bigger social stigma than having your name put on an Official Government Too-Crazy-to-Be-Fully-Free Watch List?

Why would anyone ever seek psychiatric help under such a regime?






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