No, not the name of a new magazine, or even a law review article.
Advertisement for Remington 08, a semi automatic rifle introduced over 100 years ago.
We've written on the topic of gun control before (and it is "gun control", not the press euphemism "gun safety legislation", a term that belies where the Press generally can be found on this topic). But there is quite a bit going on now that's worth noting.
Noting it, however, is somewhat difficult as Beto O'Rourke, reversing his previous positions on no Draconian gun legislation as well as his stated campaign promise not to swear or use foul language on the campaign, came out with an extreme position and a potty mouth in what may simply be an effort to have the spot light shine on him, even if that has the collateral effect of hurting his fellow campaigners in aid of a campaign that he cannot possibly win in the first place.
O'Rourke's flip flopping to adopt an extreme position will hurt the Democrats in the Fall and won't help O'Rourke now, or at any time in the future. His outburst predictably became a feature of NRA advertisements and will be on them for years, making the logical and not inaccurate point that at heart Democratic positions are confiscatory. But as one Republican has noted, that gives Republicans a reason to act now, rather than delay, and pass bills that Republicans can live with.
Before O'Rourke exploded in what will undoubtedly be the final flash of his campaign four bills had been introduced that are worth noting for a variety of reasons, even though some commentators have already said that none of them are likely to pass. There are a lot more than four bills that are floating around in Congress on this topic, we should note, but a lot of them, indeed most of them, are bills that are in the utterly pointless category and are going to accordingly go nowhere. But four bills don't fit that category and are getting looked at.
And no matter what a person thinks on this issue, the fact that these four are getting traction makes them worth looking at in and of themselves.
Indeed, one Republican in Congress is strongly suggesting that this is the time to pass these bills or at least some of them as they do something, and if something isn't passed now, something worse is coming. Non compromise gun owners hate that idea, but frankly I think that argument not only has merit, it's right. By passing these or some of these now, something has been done and perhaps deeper societal issues can be addressed that people generally don't want to. If nothing passes in this term or the next, it's quite likely something much more draconian will pass early in 2021 when there may very well be a Democratic Congress and a Democratic President.*
That's the first reason to really look at these bills. I.e., people sympathetic to firearms ownership really probably ought to take a close look at these now, so they aren't taking a close look at something else, later.
The second reason to really look at these is that, in my view, two of them are quite likely to pass, one dealing with gun sales and one dealing with magazine capacities. Indeed, at least in my view, the one on sales is almost certain to pass. We'll start there.
The Expanded "Commercial" Sales Bill.
LoC photograph of a store in Kalmath Falls, Oregon.
That bill states:
116th CONGRESS
1st Session
To require a background check for every firearm sale.
IN THE SENATE OF THE UNITED STATESFebruary 28, 2019Received; read the first timeMarch 4, 2019Read the second time and placed on the calendar
AN ACTTo require a background check for every firearm sale.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,This Act may be cited as the “Bipartisan Background Checks Act of 2019”.The purpose of this Act is to utilize the current background checks process in the United States to ensure individuals prohibited from gun possession are not able to obtain firearms.Section 922 of title 18, United States Code, is amended—
(1) by striking subsection (s);
(2) by redesignating subsection (t) as subsection (s); and
“(t) (1) (A) It shall be unlawful for any person who is not a licensed importer, licensed manufacturer, or licensed dealer to transfer a firearm to any other person who is not so licensed, unless a licensed importer, licensed manufacturer, or licensed dealer has first taken possession of the firearm for the purpose of complying with subsection (s).“(B) Upon taking possession of a firearm under subparagraph (A), a licensee shall comply with all requirements of this chapter as if the licensee were transferring the firearm from the inventory of the licensee to the unlicensed transferee.
“(C) If a transfer of a firearm described in subparagraph (A) will not be completed for any reason after a licensee takes possession of the firearm (including because the transfer of the firearm to, or receipt of the firearm by, the transferee would violate this chapter), the return of the firearm to the transferor by the licensee shall not constitute the transfer of a firearm for purposes of this chapter.
“(A) a law enforcement agency or any law enforcement officer, armed private security professional, or member of the armed forces, to the extent the officer, professional, or member is acting within the course and scope of employment and official duties;
“(B) a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, including step-parents and their step-children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren, if the transferor has no reason to believe that the transferee will use or intends to use the firearm in a crime or is prohibited from possessing firearms under State or Federal law;
“(C) a transfer to an executor, administrator, trustee, or personal representative of an estate or a trust that occurs by operation of law upon the death of another person;
“(D) a temporary transfer that is necessary to prevent imminent death or great bodily harm, including harm to self, family, household members, or others, if the possession by the transferee lasts only as long as immediately necessary to prevent the imminent death or great bodily harm, including the harm of domestic violence, dating partner violence, sexual assault, stalking, and domestic abuse;
“(E) a transfer that is approved by the Attorney General under section 5812 of the Internal Revenue Code of 1986; or
“(F) a temporary transfer if the transferor has no reason to believe that the transferee will use or intends to use the firearm in a crime or is prohibited from possessing firearms under State or Federal law, and the transfer takes place and the transferee’s possession of the firearm is exclusively—“(i) at a shooting range or in a shooting gallery or other area designated for the purpose of target shooting;
“(I) has no reason to believe that the transferee intends to use the firearm in a place where it is illegal; and
“(II) has reason to believe that the transferee will comply with all licensing and permit requirements for such hunting, trapping, or fishing; or
“(iii) while in the presence of the transferor.
“(B) Regulations promulgated under this paragraph may not include any provision requiring licensees to facilitate transfers in accordance with paragraph (1).
“(C) Regulations promulgated under this paragraph may not include any provision requiring persons not licensed under this chapter to keep records of background checks or firearms transfers.
“(D) Regulations promulgated under this paragraph may not include any provision placing a cap on the fee licensees may charge to facilitate transfers in accordance with paragraph (1).
“(E) Regulations promulgated under this paragraph shall include, in the case of a background check conducted by the national instant criminal background check system in response to a contact from a licensed importer, licensed manufacturer, or licensed dealer, which background check indicates that the receipt of a firearm by a person would violate subsection (g)(5), a requirement that the system notify U.S. Immigration and Customs Enforcement.
“(4) It shall be unlawful for a licensed importer, licensed manufacturer, or licensed dealer to transfer possession of, or title to, a firearm to another person who is not so licensed unless the importer, manufacturer, or dealer has provided such other person with a notice of the prohibition under paragraph (1), and such other person has certified that such other person has been provided with this notice on a form prescribed by the Attorney General.”.
(a) Section 922.—Section 922(y)(2) of title 18, United States Code, is amended in the matter preceding subparagraph (A) by striking “, (g)(5)(B), and (s)(3)(B)(v)(II)” and inserting “and (g)(5)(B)”.
(b) Consolidated and Further Continuing Appropriations Act, 2012.—Section 511 of title V of division B of the Consolidated and Further Continuing Appropriations Act, 2012 (18 U.S.C. 922 note) is amended by striking “subsection 922(t)” each place it appears and inserting “subsection (s) or (t) of section 922”.Nothing in this Act, or any amendment made by this Act, shall be construed to—
(1) authorize the establishment, directly or indirectly, of a national firearms registry; or
(2) interfere with the authority of a State, under section 927 of title 18, United States Code, to enact a law on the same subject matter as this Act.The amendments made by this Act shall take effect 210 days after the date of the enactment of this Act.Passed the House of Representatives February 27, 2019.Attest:
Cheryl L. Johnson, Clerk.
Okay, so what's that bill do?
Basically this bill operates on the thesis that there's a big gap in the law in that individuals are perfectly free to sell firearms to each other free of any background check.
In other words, it closes the so called "gun show loophole".
Of course, in order to grasp the concept of this bill, you have to know how the law operates in the first place, something that few people seem to actually grasp.
Contrary to the wide assumption, the United States has a type of nearly universal firearms registration. Every firearm manufactured or imported into the U.S. is registered with ATF by the manufacturer or importer. When its shipped to the wholesaler, its registered by that licensed wholesaler again. When its shipped to the dealer, its registered yet again. And when the dealer sells it to the purchaser, he notes that in his register.
This is registration and its a type of registration that's actually extremely common for many things globally as well as within the United States. For some reason, when people think of registration they usually have in mind a central registry maintained by a government, but in fact many governments have long used this sort of registration for a lot of things, which is much more efficient than a government registry. This is actually a multiple layer registration, as noted, and the fact that the entities burdened with the registration are private parties in business likely makes it massively more efficient than a government run would, and it accomplishes all the same tasks that it would have if the registration had been centralized.
Of course, part of the reason that people get confused by registration, which exists, is that they conflate it with licensing, which doesn't, and shouldn't.
One Presidential candidate, Cory Booker, has proposed requiring firearms owners to be licensed, drawing an analogy with automobiles. Booker has a JD from Yale and if his analogy is indicative of the quality of Yale's law school education, pretty much anyone holding a JD from Yale ought to be disbarred immediately.
First of all, in the United States, both automobiles and drivers are licensed, but at the state, not the Federal, level. People who like to make this analogy fail to note that you don't need a driver's license to actually own a car and you don't need to license a car you own. You need both types of licenses in order to drive a car on a public road. So, by extension, if the analogy is really applied, a person wouldn't need to license a firearm, or have a license, in order to simply own a firearm. You'd presumably need the license, one or the other, to do it in a public place.
But the road is already open to that type of regulation on the exact same basis that it is for automobiles. The Federal government doesn't license cars and it doesn't license drivers, except for its own automobiles and drivers which are exempt from the state requirements. The state do the licensing. And states, as long as they comply with the Constitution, can already enact these provisions. What they can't do is to make them an excuse for denying people the right to keep and bear arms, so they really can't go beyond what the states actually do with automobiles.
Which isn't much, frankly. Getting a drivers' license in the United States is supremely easy and licensing a car is mostly a tax function. And the purpose of licensing both is quite different from those who make this analogy.
Licensing automobiles was always a tax device from the very onset and was developed in an era when there were an amazing number of similar possessiary taxes. Beyond that it served the purported function of making sure that the vehicles were safe and in some states it still sort of does. In my state you used to have to have vehicles inspected annually as part of this but that requirement long since was repealed and it didn't do much anyhow.
Drivers licensees served a similar function in making sure that drivers knew the rules of the road. They still no doubt serve that function, but the degree to which that is really effective can truly be debated, as we've discussed in aggravation here before:
The Wyoming Wave
Critics would poitn out that automobiles and driving has gotten safer and safer over the years in the United STates, and they have. Usualy not noted in this is that American drivers tend to be much safer and better drivers than continental European drivers are, even though its much more difficult to get a drivers license in much of Europe. The big influencer here likely is not so much the licensing requirements as the insurance requirements, as the insurance industry has been zealous in trying to make driving safer and safer, and has succeeded to a large degree.
Cory. . . there's a remedial Constitutional Law CLE out there for you somewhere.
All of this is noted as when people like Booker mention licensing, what they really have in mind is nothing at all like the model for automobiles, but rather the system that some nations have in which you have to justify you reason for owning a firearm each time you buy one. That would frankly be unconstitutional in the United States as well as being contrary to American culture which basically holds that you can own what you want and do what you want without a reason, as long as you don't harm anyone. As Booker, once again, is a lawyer, he joins Kamala Harris in the category of Democratic lawyers running for President who seemingly failed Constitutional Law and ought to be sentenced to a lifetime of CLEs as a result.
At least Booker's proposals are flagrantly in disregard of every aspect of Constitutional governing. On this issue, however, Harris is, showing a level of respect for the Constitution that has in the past been more evident in countries that were devoid of functioning legislative bodies.
The purpose of this particular system brought in by the Gun Control Act of 1968, however, was different and was several fold, and there's every reason to believe that its been very successful in regard to what it was designed to do.
The initial purpose of the introduction of this system, which came into law in 1968, was to end unregistered sales and mail order sales. Mail order sales, which were perfectly legal before 1968 (and which continued to be legal in Canada, fwiw, into the 1980s) were completely wiped out by the introduction of this system, which was one of the specific goals of the bill.
Another was to introduce a system under which a gun that had been involved in a crime could be tracked. This aspect of the current system is never criticized and it appears to have been successful, to the extent that law enforcement really attempts to track it. Generally, when most useful, its when an expended bullet is recovered that's identifiable and there's an effort made to trace it to an individual firearm. That's frankly rarely done, but it can be tracked through this system, starting with the manufacturer or importer registration and working forward.
Additionally, the change in the law caused the retail sellers to have to be licensed and to be the gateway for the law when the firearms was sold to the public purchaser (or for that matter to an agency user). In order for the sale to occur, the buyer has to fill out a form revealing details on his background. This system was tightened in the 1980s when the law was changed so that purchasers have to submit to a call in system that verifies their eligibility to purchase a firearm, except in the case of those who already have some sort of permit that required them to go through an FBI background check, such as the holders of concealed permits. This change in the law was also fairly effective as it does catch those who are inelgible to own firearms except in the instances in which an official agency has screwed up and failed to note them in the system, something that a centralized system would be no more effective at, as that is the centralized part of the system.
What the proposed bill does is to attempt to address what some regard as as deficiency or a "loophole" in the system, which is sales between private individuals, which is unregulated.
This is conceived of as a problem or presented as an argument in various ways, but the gist of it is that the law doesn't require the background check for sales between private parties, and it ought to. Some have claimed that all sorts of guns used in crimes are bought this way. Others feel, frankly correctly, that there are firearms dealers who operate outside the law at various events and sell a lot of firearms this way. Others simply feel that if this was part of the law, there'd be a lot fewer private sales.
So are they right?
Well, the best evidence is no. There really aren't very many firearms used in crimes that have been bought private party to private party. Indeed, recently a selection of firearms used in infamous crimes have been legally bought, more or less. "More or less" because some of them were completely legally bought, and others were not, but the dealers didn't catch it as governmental agencies blew it and failed to get an ineligible person into the system (in at least a couple of these events dealers did a better job than the government as the purchasers were denied sales by licensed dealers and the purchasers had to go to another dealer). The other "more or less" aspect of this is a huge percentage of firearms used in crimes are stolen.
So this likely wouldn't do anything much at all to address crime. If it did, it would do so only for one of the reasons noted above, it would deter private party sales to some extent.
Ironically, it likely wouldn't deter the "gun show loophole" sales at all. They'd still occur as gun shows would simply hire a dealer to do all the checks in a show. That would be easy to address. What would likely slow up a lot were private party sales by honest people. Those folks would either simply not sell something they were going to, or take them to a dealer.
The bill might bring some privately held firearms out of the hands of individuals who basically aren't in the firearms owning category otherwise but have simply ended up with one. There's a large number of people in this category, actually, who often own a gun or two and don't even really know what exactly what it is. The pain of having to deal with it at some later point might simply cause them to take it to a dealer to be sold. Of course, the flipside of that is that those same guns would probably end up in the collection of somebody who did appreciate firearms. The net effect of that might be to reduce the number of Americans who own firearms somewhat. Of course, it wouldn't do that in a way that really has any particular impact on anything as the folks we've referenced on both scores are not the ones who likely were going to commit a crime with a firearm. Indeed, the people who are most likely to do that wouldn't be impacted by this bill at all.
Flag being raised at Iwo Jima. The Marine in the foreground is carrying an M1 Carbine with a 15 round magazine, the World War Two standard magazine for the diminutive and fairly ineffective World War Two carbine. The M1 Carbine, which was widely sold as surplus after the war, was the first arm in civilian hands that routinely had a "large capacity" detachable magazine.
We've discussed this here more than once and have been surprised that this hasn't been taken on, given as it seems a fairly obvious approach. There is a bill that now proposes to do that.
Here's the bill:
116th CONGRESS
1st Session
To regulate large capacity ammunition feeding devices.
IN THE HOUSE OF REPRESENTATIVESFebruary 13, 2019Mr. Deutch (for himself, Mr. Nadler, Ms. DeGette, Ms. Titus, Mr. Aguilar, Mr. Bera, Ms. Bonamici, Ms. Brownley of California, Mr. Cárdenas, Mr. Case, Ms. Clark of Massachusetts, Ms. Clarke of New York, Mr. Cohen, Mr. Connolly, Mr. Cooper, Mr. Crist, Mr. Cummings, Mrs. Davis of California, Mr. DeSaulnier, Ms. Eshoo, Mr. Espaillat, Ms. Frankel, Mr. Grijalva, Mr. Hastings, Ms. Johnson of Texas, Mr. Johnson of Georgia, Ms. Kelly of Illinois, Mr. Langevin, Ms. Lofgren, Mr. Lynch, Mrs. Carolyn B. Maloney of New York, Mr. Sean Patrick Maloney of New York, Ms. Matsui, Ms. McCollum, Mr. McEachin, Mr. McGovern, Mr. Morelle, Mrs. Napolitano, Ms. Norton, Mr. Pallone, Mr. Panetta, Mr. Peters, Ms. Pingree, Miss Rice of New York, Mr. Rose of New York, Ms. Roybal-Allard, Mr. Sarbanes, Ms. Schakowsky, Mr. Schiff, Mr. Schneider, Mr. Scott of Virginia, Mr. Sherman, Mr. Sires, Mr. Smith of Washington, Mr. Soto, Ms. Speier, Mr. Suozzi, Mr. Swalwell of California, Mr. Takano, Ms. Velázquez, Mr. Visclosky, Ms. Wasserman Schultz, Mrs. Watson Coleman, Ms. Wilson of Florida, Mr. Yarmuth, Mr. Cisneros, Mr. Neguse, and Mr. Garamendi) introduced the following bill; which was referred to the Committee on the Judiciary
A BILLTo regulate large capacity ammunition feeding devices.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,This Act may be cited as the “Keep Americans Safe Act”.Section 921(a) of title 18, United States Code, is amended by inserting after paragraph (29) the following:“(A) means a magazine, belt, drum, feed strip, helical feeding device, or similar device, including any such device joined or coupled with another in any manner, that has an overall capacity of, or that can be readily restored, changed, or converted to accept, more than 10 rounds of ammunition; and
“(B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.
“(31) The term ‘qualified law enforcement officer’ has the meaning given the term in section 926B.”.
(a) In general.—Section 922 of title 18, United States Code, is amended by inserting after subsection (u) the following:“(2) Paragraph (1) shall not apply to the possession of any large capacity ammunition feeding device otherwise lawfully possessed on or before the date of enactment of the Keep Americans Safe Act.
“(A) the importation for, manufacture for, sale to, transfer to, or possession by the United States or a department or agency of the United States or a State or a department, agency, or political subdivision of a State, or a sale or transfer to or possession by a qualified law enforcement officer employed by the United States or a department or agency of the United States or a State or a department, agency, or political subdivision of a State for purposes of law enforcement (whether on or off-duty), or a sale or transfer to or possession by a campus law enforcement officer for purposes of law enforcement (whether on or off-duty);
“(B) the importation for, or sale or transfer to a licensee under title I of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) for purposes of establishing and maintaining an on-site physical protection system and security organization required by Federal law, or possession by an employee or contractor of such licensee on-site for such purposes or off-site for purposes of licensee-authorized training or transportation of nuclear materials;
“(i) sold or transferred to the individual by the agency upon such retirement; or
“(ii) that the individual purchased, or otherwise obtained, for official use before such retirement; or
“(D) the importation, sale, manufacture, transfer, or possession of any large capacity ammunition feeding device by a licensed manufacturer or licensed importer for the purposes of testing or experimentation authorized by the Attorney General.
“(A) employed by a private institution of higher education that is eligible for funding under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.);
“(B) responsible for the prevention or investigation of crime involving injury to persons or property, including apprehension or detention of persons for such crimes;
“(C) authorized by Federal, State, or local law to carry a firearm, execute search warrants, and make arrests; and
“(D) recognized, commissioned, or certified by a government entity as a law enforcement officer.”.
(b) Identification markings for large capacity ammunition feeding devices.—Section 923(i) of title 18, United States Code, is amended by adding at the end the following: “A large capacity ammunition feeding device manufactured after the date of enactment of the Keep Americans Safe Act shall be identified by a serial number and the date on which the device was manufactured or made, legibly and conspicuously engraved or cast on the device, and such other identification as the Attorney General shall by regulations prescribe.”.
(i) by striking “Any firearm or ammunition involved in” and inserting “Any firearm or ammunition or large capacity ammunition feeding device involved in”;
(ii) by striking “or (k)” and inserting “(k), or (v)”; and
(iii) by striking “any firearm or ammunition intended” and inserting “any firearm or ammunition or large capacity ammunition feeding device intended”; and
(B) in the second and third sentences, by inserting “or large capacity ammunition feeding device” after “firearms or ammunition” each place the term appears;
(A) in subparagraph (A), by inserting “or large capacity ammunition feeding device” after “firearms or ammunition”; and
(B) in subparagraph (C), by inserting “or large capacity ammunition feeding devices” after “firearms or quantities of ammunition”; and
(3) in paragraph (3)(E), by inserting “922(v),” after “922(n),”.Section 924(a)(1)(B) of title 18, United States Code, is amended by striking “or (q)” and inserting “(q), or (v)”.Section 501(a)(1) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10152(a)(1)) is amended by adding at the end the following:“(I) Compensation for surrendered large capacity ammunition feeding devices, as that term is defined in section 921 of title 18, United States Code, under buy-back programs for large capacity ammunition feeding devices.”.
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any person or circumstance shall not be affected thereby.
I suspect that this bill has less of a chance of passing, but in the current atmosphere its not impossible that it might pass.
A bill like this could in fact actually have a degree of impact. The category of crime that is attempting to be addressed is one in which high capacity magazines do indeed feature. Firearms owners have a hard time defending high capacity magazines, moreover, other than for the argument that some people find them fun (setting aside a potential Constitutional argument for a moment). In many states magazine capacities are quite restricted already in game fields (it used to be restricted to five founds for rifles and three for shotguns in my state, but the rifle restriction was removed long ago) as it was felt that large capacities encouraged bad shooting. At least some very serious categories of target shooting featuring semi automatic military style rifles also very strictly restrict the number of rounds that can be loaded in a magazine and always have.
And the history of semi automatics does demonstrate that the only real change in them over a century has been in terms of magazines.
People like Beto O'Rourke who argue that the government should confiscate this or that seemingly fail to realize that semi automatic rifles have been around for over a century and that in significant ways, they really haven't changed very much. What did change is that large capacity external magazines became common, recently.
Large capacity magazines for rifles like the Remington 08 were around prior to World War One, but they were very rare. It wasn't until the M1 Carbine became available as a surplus rifle following World War Two and the Korean War that there was a common semi automatic rifle with a large capacity external magazine (some rifles, however, did have high capacity internal magazines of various types). It wasn't until Colt started selling the AR15 to civilians that things really began to change, however, and even then they changed slowly at first. But it was appreciated, even early on, that something was different about high capacity magazines. Sturm Ruger, which had introduced the Mini 14 to compete with the AR, would take the position of not selling such magazines to the public during the lifetime of its found, Bill Ruger, who even testified in Congress regarding them.
So those who propose restricting these may indeed have a good argument. By and large, up until 1946 there were really very few high capacity rifle magazines in civilian hands at all and the only handguns that took them were the Browning Hi Power and the rare Artillery Model of the German P08. In the 1970s that started to change as AR15s became more and more common and by the 1980s they were quite common for both small caliber rifles and handguns.
A bill like this seeking to restrict them, therefore, may actually have an effect, but its rather obvious that there are already a very large number of high capacity magazines around, which the bill acknowledges in this provision:
(2) Paragraph (1) shall not apply to the possession of any large capacity ammunition feeding device otherwise lawfully possessed on or before the date of enactment of the Keep Americans Safe Act.
This would seem to mean that any such magazine already manufactured would be okay under the law. Having said that, it might be possible to read this to mean that it only would be okay for people who already own them.
In either event it probably would have a long term impact of some sort. The length of that term would obviously vary depending upon how this provision is read. If it would be read to apply only to those who current own the magazines, the long term is shorter than if it means that any of the millions of magazines already manufactured are okay, as those will be around for a very long time.
None of which really addresses the topic of whether this would be effective. Frankly, based upon how it is read, I think it could be argued to potentially be. That impact would be "marginal", depending upon the width of the margin, but the backers of this bill have a practical argument that is hard to argue against.
The Constitutional argument, however, may be another matter and this hadn't been addressed. Right now, nobody knows if this is unconstitutional or not. Contrary to what people tend to believe right now, there are no categories of firearms that are illegal to own in the United States, and it might not be really possible to create a situation in which they are. Even fully automatic firearms are legal to own, contrary to widespread popular belief, but are rather regulated differently than other firearms and regulated by tax. It's possible that the Supreme Court, if presented with this issue (which I wouldn't assume that it would be) would hold that simply prohibiting the possession of large capacity magazines doesn't fit the bill.
On a side note, one provision of this bill is particularly curious, that being the exception that provides:
“(C) the possession, by an individual who is retired in good standing from service with a law enforcement agency and is not otherwise prohibited from receiving ammunition, of a large capacity ammunition feeding device—
I can see a good and valid reason for an exemption for a serving law enforcement officer, but I can discern no earthly good reason for an exception for a retired one. Policemen are civilians and retired policemen are more particularly civilians. It makes no sense to exempt one from the same provisions that apply to his fellow civilians.
From these two bills, we go on to the "who can have" bills that are pending. The first of these deals with people who are dangerous. That people provides:
116th CONGRESS1st Session
H. R. 1236To support State, Tribal, and local efforts to remove access to firearms from individuals who are a danger to themselves or others pursuant to court orders for this purpose.
IN THE HOUSE OF REPRESENTATIVESFebruary 14, 2019Mr. Carbajal (for himself, Mr. Fitzpatrick, Mr. Beyer, Mr. Deutch, and Ms. Brownley of California) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To support State, Tribal, and local efforts to remove access to firearms from individuals who are a danger to themselves or others pursuant to court orders for this purpose.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Short title.This Act may be cited as the “Extreme Risk Protection Order Act of 2019”.
SEC. 2. Definitions.In this Act:
(1) ELIGIBLE ENTITY.—The term “eligible entity” means—
(A) a State or Indian Tribe—
(i) that enacts legislation described in section 4;
(ii) with respect to which the Attorney General determines that the legislation described in clause (i) complies with the requirements of section 4; and
(iii) that certifies to the Attorney General that the State or Indian Tribe shall—
(I) use the grant for the purposes described in section 3(b); and
(II) allocate not less than 25 percent of the amount received under a grant under section 3 for training for law enforcement; or
(B) a unit of local government or other public or private entity that—
(i) is located in a State or in the territory under the jurisdiction of an Indian Tribe that meets the requirements described in clauses (i), (ii), (iii) of subparagraph (A); and
(ii) certifies to the Attorney General that the unit of local government or entity shall—
(I) use the grant for the purposes described in section 3(b); and
(II) allocate not less than 25 percent of the amount received under a grant under section 3 for training for law enforcement.
(2) EXTREME RISK PROTECTION ORDER.—The term “extreme risk protection order” means a written order or warrant, issued by a State or Tribal court or signed by a magistrate (or other comparable judicial officer), the primary purpose of which is to reduce the risk of firearm-related death or injury by doing one or more of the following:
(A) Prohibiting a named individual from having under the custody or control of the individual, owning, purchasing, possessing, or receiving a firearm.
(B) Having a firearm removed or requiring the surrender of firearms from a named individual.
(3) FIREARM.—The term “firearm” has the meaning given the term in section 921 of title 18, United States Code.
(4) INDIAN TRIBE.—The term “Indian Tribe” has the meaning given the term “Indian tribe” in section 1709 of the Public Safety and Community Policing Act of 1994 (34 U.S.C. 10389).
(5) LAW ENFORCEMENT OFFICER.—The term “law enforcement officer” means a public servant authorized by State, local, or Tribal law or by a State, local, or Tribal government agency to—
(A) engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or
(B) supervise sentenced criminal offenders.
(6) PETITIONER.—The term “petitioner” means an individual authorized under State or Tribal law to petition for an extreme risk protection order.
(7) STATE.—The term “State” means—
(A) a State;
(B) the District of Columbia;
(C) the Commonwealth of Puerto Rico; and
(D) any other territory or possession of the United States.
(8) UNIT OF LOCAL GOVERNMENT.—The term “unit of local government” has the meaning given the term in section 901 of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10251).
SEC. 3. Extreme Risk Protection Grant Program.(a) In general.—The Director of the Office of Community Oriented Policing Services of the Department of Justice shall establish a program under which, from amounts made available to carry out this section, the Director may make grants to eligible entities to assist in carrying out the provisions of the legislation described in section 4.
(b) Use of funds.—Funds awarded under this section may be used by an applicant to—
(1) enhance the capacity of law enforcement agencies and the courts of a State, unit of local government, or Indian Tribe by providing personnel, training, technical assistance, data collection, and other resources to carry out legislation described in section 4;
(2) train judges, court personnel, and law enforcement officers to more accurately identify individuals whose access to firearms poses a danger of causing harm to themselves or others by increasing the risk of firearms suicide or interpersonal violence;
(3) develop and implement law enforcement and court protocols, forms, and orders so that law enforcement agencies and the courts may carry out the provisions of the legislation described in section 4 in a safe and effective manner, including through the removal and storage of firearms pursuant to extreme risk protection orders under the legislation; and
(4) raise public awareness and understanding of the legislation described in section 4 so that extreme risk protection orders may be issued in appropriate situations to reduce the risk of firearms-related death and injury.
(c) Application.—An eligible entity desiring a grant under this section shall submit to the Attorney General an application at such time, in such manner, and containing or accompanied by such information as the Attorney General may reasonably require.
(d) Incentives.—For each of fiscal years 2020 through 2024, the Attorney General shall give affirmative preference in awarding any discretionary grant awarded by the Bureau of Justice Assistance to a State or Indian Tribe that has enacted legislation described in section 4.
(e) Authorization of appropriations.—There are authorized to be appropriated such sums as are necessary to carry out this section.
SEC. 4. National extreme risk protection order law.(a) Requirements.—Legislation described in this section is legislation that establishes requirements that are substantially similar to the following:
(1) APPLICATION FOR EXTREME RISK PROTECTION ORDER.—A petitioner, including a law enforcement officer, may submit an application to a State or Tribal court, on a form designed by the court or a State or Tribal agency, that—
(A) describes the facts and circumstances justifying that an extreme risk protection order be issued against the named individual; and
(B) is signed by the applicant, under oath.
(2) NOTICE.—The individual named in an application for an extreme risk protection order as described in paragraph (1) shall be given written notice of the application and an opportunity to be heard on the matter in accordance with this section.
(3) ISSUANCE OF EXTREME RISK PROTECTION ORDERS.—
(A) HEARING.—
(i) IN GENERAL.—Upon receipt of an application described in paragraph (1), the court shall order a hearing to be held not later than 30 days after the date of such application.
(ii) DETERMINATION.—If the court finds by a preponderance of the evidence that the respondent poses a danger of causing harm to himself, herself, or others by having access to a firearm, the court may issue an extreme risk protection order.
(B) LENGTH OF EXTREME RISK PROTECTION ORDER.—An extreme risk protection order shall be in effect for a period not to exceed 1 year, unless renewed.
(4) EX PARTE EXTREME RISK PROTECTION ORDERS.—
(A) IN GENERAL.—Upon receipt of an application described in paragraph (1), the court may issue an ex parte extreme risk protection order before conducting the hearing required under paragraph (3), if—
(i) the application for an extreme risk protection order alleges that the respondent poses a danger of causing harm to himself, herself, or others in the near future by having access to a firearm; and
(ii) the court finds there is reasonable cause to believe that the respondent poses a danger of causing harm to himself, herself, or others in the near future by having access to a firearm.
(B) LENGTH OF EX PARTE EXTREME RISK PROTECTION ORDER.—An ex parte extreme risk protection order shall be in effect for a period not to exceed 30 days, unless continued for good cause.
(5) STORAGE OF REMOVED FIREARMS.—All firearms removed or surrendered pursuant to an extreme risk protection order shall be retained by a law enforcement officer or a law enforcement agency until the named individual regains his or her eligibility to possess firearms, except that the legislation may authorize a law enforcement agency to—
(A) contract with a manufacturer, dealer, or importer licensed under chapter 44 of title 18, United States Code, for the secure storage of firearms; and
(B) transfer the firearm upon proof that the named individual will no longer have access to the firearm.
(6) NOTIFICATION.—
(A) IN GENERAL.—A State or tribal court that issues an extreme risk protection order shall notify the Department of Justice or the comparable State or Tribal agency, as applicable, of the order as soon as practicable. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice or the comparable State or Tribal agency.
(B) UPDATE OF DATABASES.—As soon as practicable after receiving a notification under subparagraph (A), the Department of Justice or the comparable State or Tribal agency shall ensure the extreme risk protection order is reflected in the National Instant Criminal Background Check System.
(7) CONFIDENTIALITY PROTECTIONS.—All personally identifiable information provided to the court, the Department of Justice, and comparable State or Tribal agencies shall be kept confidential, except as necessary to carry out the legislation.
(b) Additional authorities.—Legislation described in this section may—
(1) provide procedures for the termination of an extreme risk protection order;
(2) provide procedures for the renewal of an extreme risk protection order;
(3) establish burdens of proof for issuance of orders described in paragraphs (3) and (4) of subsection (a) that are higher than the burdens of proof required under those paragraphs; and
(4) limit the individuals who may submit an application described in subsection (a)(1), provided that, at a minimum, law enforcement officers are authorized to do so.
SEC. 5. Federal firearms prohibition.Section 922 of title 18, United States Code, is amended—
(1) in subsection (d)—
(A) in paragraph (8)(B)(ii), by striking “or” at the end;
(B) in paragraph (9), by striking the period at the end and inserting “; or”; and
(C) by inserting after paragraph (9) the following:
“(10) is subject to a court order that prohibits such person from having under his or her custody or control, owning, purchasing, possessing, or receiving any firearms, or requires the surrender or removal of firearms from the person, provided that the order—
“(A) is issued in a manner consistent with the due process rights of the person; and
“(B) is based on a finding that the person poses a danger of causing harm to himself, herself, or others by having access to a firearm.”; and
(2) in subsection (g)—
(A) in paragraph (8)(C)(ii), by striking “or” at the end;
(B) in paragraph (9), by striking the comma at the end and inserting “; or”; and
(C) by inserting after paragraph (9) the following:
“(10) is subject to a court order that prohibits such person from having under his or her custody or control, owning, purchasing, possessing, or receiving any firearms, or requires the surrender or removal of firearms from the person, provided that the order—
“(A) is issued in a manner consistent with the due process rights of the person; and
“(B) is based on a finding that the person poses a danger of causing harm to himself, herself, or others by having access to a firearm,”.
SEC. 6. Conforming amendment.Section 3(1) of the NICS Improvement Amendments Act of 2007 (34 U.S.C. 40903(1)) is amended by striking “section 922(g)(8)” and inserting “paragraph (8) or (10) of section 922(g)”.
SEC. 7. Full faith and credit.Any extreme risk protection order issued under a State or Tribal law enacted in accordance with this Act shall be accorded the same full faith and credit by the court of another State or Indian Tribe (the enforcing State or Indian Tribe) and enforced by the court and law enforcement personnel of the other State or Tribal government as if it were the order of the enforcing State or Tribe.
SEC. 8. Severability.If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this Act, or an amendment made by this Act, or the application of such provision to other persons or circumstances, shall not be affected.
This bill deals with "extreme risk protection orders. Basically, the bill provides a Federal registry for people who, through a state system that's complaint with this law, are subject to an "extreme risk protective order".
I think everyone agrees that nobody wants people who pose an extreme risk to have access to firearms. The question is whether this should be a Federal provision and if it is, whether it'll do something.
State systems for such orders already exist, but anyone with familiarity with them will tend to hold such systems up to a degree of skepticism. They tend not be available for people who really need them and oddly end up applying to people who should not be subject to them. There's not a lot of reason to believe that the system will work any better with a Federal mandate such as this is applicable to it.
I suppose it might, but if it does, it'll be marginal at best. It no doubt will also be abused, and that forms the basis to the probable opposition to it.
As a total aside, an interesting question might exist on what role something like this might have in regard to combating terrorism. As part of that, a question has to be asked if the statute generally fits into American concepts of justice, interestingly enough. In other words, if a police force determines that it suspect somebody of Middle Eastern origin of being a potential terrorist, even if they currently are not, is this sort of law applicable? If we feel comfortable with that, would we have felt comfortable with the same provision applying to the Black Panthers in 1968?
If that seems an odd question, it really ought not to. Part of the reason that the Gun Control Act of 1968 passed was because of a fear that groups such as the Black Panther Party were in fact arming. From their part, they probably figured that they had good reason to arm themselves. Indeed, as we're publishing this on the anniversary of the Elaine Arkansas Massacre, those reasons are pretty evident.
Another bill also fits into the same category of "not to have" type of bill.
Hate Crimes
I'll be frank right from the onset that about the categorization of certain crimes as "hate crimes", which is what this bill addresses. The bill provides:
116th CONGRESS
1st Session
IN THE HOUSE OF REPRESENTATIVESMay 14, 2019Mr. Cicilline (for himself, Ms. Adams, Ms. Bass, Mr. Beyer, Mr. Blumenauer, Mr. Brendan F. Boyle of Pennsylvania, Mr. Brown of Maryland, Ms. Brownley of California, Mr. Carbajal, Mr. Cárdenas, Mr. Carson of Indiana, Ms. Castor of Florida, Ms. Judy Chu of California, Mr. Cisneros, Ms. Clark of Massachusetts, Ms. Clarke of New York, Mr. Clay, Mr. Cohen, Mr. Connolly, Mr. Cox of California, Mr. Crist, Mr. Crow, Mr. Cummings, Mr. Danny K. Davis of Illinois, Mrs. Davis of California, Ms. Dean, Ms. DeLauro, Mr. DeSaulnier, Mr. Deutch, Mrs. Dingell, Mr. Michael F. Doyle of Pennsylvania, Mr. Engel, Ms. Eshoo, Mr. Espaillat, Mr. Foster, Ms. Frankel, Mr. García of Illinois, Ms. Garcia of Texas, Mr. Green of Texas, Mr. Grijalva, Ms. Haaland, Mr. Hastings, Mrs. Hayes, Ms. Hill of California, Ms. Houlahan, Mr. Huffman, Ms. Jackson Lee, Ms. Jayapal, Mr. Johnson of Georgia, Ms. Kaptur, Ms. Kelly of Illinois, Mr. Kennedy, Mr. Khanna, Mr. Kildee, Mr. Krishnamoorthi, Mr. Langevin, Mr. Larson of Connecticut, Mrs. Lawrence, Ms. Lee of California, Mr. Levin of Michigan, Ms. Lofgren, Mr. Lowenthal, Mrs. Lowey, Mr. Lynch, Mrs. McBath, Ms. McCollum, Mr. Meeks, Ms. Meng, Ms. Moore, Mr. Morelle, Ms. Mucarsel-Powell, Mr. Nadler, Ms. Norton, Mr. Pallone, Mr. Payne, Mr. Quigley, Ms. Omar, Mr. Perlmutter, Mr. Raskin, Mr. Rouda, Mr. Rose of New York, Ms. Roybal-Allard, Mr. Ruppersberger, Mr. Rush, Ms. Scanlon, Ms. Schakowsky, Mr. Serrano, Ms. Shalala, Ms. Sherrill, Mr. Sires, Mr. Smith of Washington, Mr. Soto, Ms. Speier, Mr. Suozzi, Mr. Swalwell of California, Mr. Takano, Ms. Titus, Mr. Thompson of California, Mr. Tonko, Mr. Trone, Mr. Vargas, Ms. Velázquez, Ms. Wasserman Schultz, Ms. Waters, Mrs. Watson Coleman, Ms. Wexton, and Ms. Wilson of Florida) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To prevent a person who has been convicted of a misdemeanor hate crime, or received an enhanced sentence for a misdemeanor because of hate or bias in its commission, from obtaining a firearm.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Short title.This Act may be cited as the “Disarm Hate Act”.SEC. 2. Prevention of person who has been convicted of a misdemeanor hate crime, or received an enhanced sentence for a misdemeanor because of hate or bias in its commission, from obtaining a firearm.(a) Definitions.—Section 921(a) of title 18, United States Code, is amended by adding at the end the following:“(36) The term ‘convicted in any court of a misdemeanor hate crime’—“(A) means being convicted by a court of an offense that—“(i) is a misdemeanor under Federal, State, or tribal law;“(ii) has, as an element, that the conduct of the offender was motivated by hate or bias because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity (as defined in section 249), or disability of any person; and“(iii) involves the use or attempted use of physical force, the threatened use of a deadly weapon, or other credible threat to the physical safety of any person; and“(B) does not include—“(i) a conviction of an offense described in subparagraph (A), unless—“(I) the person—“(aa) was represented by counsel in the case; or“(bb) knowingly and intelligently waived the right to counsel in the case; and“(II) in the case of a prosecution for an offense described in subparagraph (A) for which a person was entitled to a jury trial in the jurisdiction in which the case was tried—“(aa) the case was tried by a jury; or“(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise; or“(ii) a conviction of an offense described in subparagraph (A) if—“(I) the conviction—“(aa) has been expunged or set aside; or“(bb) is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense); and“(II) the pardon, expungement, or restoration of civil rights does not expressly provide that the person may not ship, transport, possess, or receive firearms.“(37) The term ‘received from any court an enhanced hate crime misdemeanor sentence’—“(A) means a court has imposed a sentence for a misdemeanor under Federal, State, or tribal law—“(i) that involves the use or attempted use of physical force, the threatened use of a deadly weapon, or other credible threat to the physical safety of any person; and“(ii) based, in whole or in part, on a judicial finding that the conduct of the offender was motivated, in whole or in part, by hate or bias for any reason referred to in paragraph (36)(A)(ii); and“(B) does not include—“(i) the imposition of a sentence described in subparagraph (A), unless—“(I) the person—“(aa) was represented by counsel in the case; or“(bb) knowingly and intelligently waived the right to counsel in the case; and“(II) if the sentence described in subparagraph (A) was imposed in a prosecution for an offense for which a person was entitled to a jury trial in the jurisdiction in which the case was tried—“(aa) the case was tried by a jury; or“(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise; or“(ii) the imposition of a sentence described in subparagraph (A) if—“(I) (aa) the conviction of the offense for which the sentence was imposed has been expunged or set aside; or“(bb) the offense for which the sentence was imposed is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense); and“(II) the pardon, expungement, or restoration of civil rights does not expressly provide that the person may not ship, transport, possess, or receive firearms.”.(b) Prohibition on sale or other disposition of firearm.—Section 922(d) of such title is amended in the first sentence—(1) in paragraph (8)(B)(ii), by striking “or” at the end;(2) in paragraph (9), by striking the period and inserting “; or”; and(3) by inserting after paragraph (9) the following:“(10) has been convicted in any court of a misdemeanor hate crime, or has received from any court an enhanced hate crime misdemeanor sentence.”.(c) Prohibition on possession, shipment, or transport of firearm.—Section 922(g) of such title is amended—(1) in paragraph (8), by striking “or” at the end;(2) in paragraph (9), by striking the comma and inserting “; or”; and(3) by inserting after paragraph (9) the following:“(10) who has been convicted in any court of a misdemeanor hate crime, or has received from any court an enhanced hate crime misdemeanor sentence,”.
Okay, this bill seeks to apply prohibitions on people convicted of "hate crimes". What could be wrong with that?
Well, to start off with, most of the prohibitions provided in this statute only duplicate those that already exist, and passing bills simply to pass them is fairly pointless. Beyond that, however, the entire concept of certain crimes being "hate crimes" is odd to me.
Well, to start off with, most of the prohibitions provided in this statute only duplicate those that already exist, and passing bills simply to pass them is fairly pointless. Beyond that, however, the entire concept of certain crimes being "hate crimes" is odd to me.
Crimes of violence are crimes of violence, and there's always an element of hate involved in them in some fashion. Defining something as a "hate crime" diminishes some hateful conduct and just flat out seems odd.
Definitions of crimes in this fashion, and even their federalization, tend to follow fads. We'd like to think that the law is free of fads, but it isn't.
Indeed, it's ironic that at the same time that the United States keeps pondering the federalization of certain crimes as "hate crimes", the country is slowly moving away from the federalization of certain drug laws. That may not seem analogous, but it really came about in the same fashion. For instance, marijuana, which is now being widely decriminalized under the laws of the states, was originally only illegal under state law. The Federal prohibition, which is now apparently not being enforced, came about later. People now scoff at that, but the same thing tends to operate here in regard to "hate crimes". Hate crimes are already illegal, as they're crimes. Federalizing an aspect of them because they are "motivated by hate or bias because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity . . . , or disability of any person"
That may seem like an odd thing to be concerned about. After all, "who cares" may well be a justified reply to that. But misdemeanor convictions of one kind or another may be easy to mischaracterize and a statute like this would be easy to abuse.
On the other hand, there's some merit to the idea on that certain recent notorious criminal actions were motivated by racial hatred pretty clearly. Not all, but some. And maybe this is a proactive bill to attempt to address that, which is if nothing else in the category of doing something. If the misuse of such a definition is applied to people guilty of a criminal misdemeanor, well perhaps that's just part of the penalty for committing such crimes.
On that, this is another bill which, no matter its merits, might be Unconstitutional. Generally a person doesn't loose their rights due to a misdemeanor conviction, and currently there's an odd misbegotten move to restore nearly all rights of any type to people who have been convicted of a felony, with voting rights seemingly being the primary concern there. The law has usually held that if a crime bears the "incidents" of a felony, by way of its punishment, it must be categorized as one. This would seem to potentially cross that line.
And so there they are. Will any pass? Pundits say no, but I suspect that one or more of them may be. And I think the argument that legislation is better coming now when firearms friendly Republicans can have a role in crafting them is a good one. Reading the political winds is a tough thing to do, but people who have an interest in this topic shouldn't assume that the current makeup of Congress is going to be the same after 2020, let alone that the next President will be as friendly towards firearms advocates as the current one, or as hesitant to sponsor legislation as the last one.
*This draft was started just after the news on the Ukrainian telephone call became dominant and before Nancy Pelosi indicated she was going to start an impeachment inquiry. I note that as during the weekend news shows that were coincident with all of that, gun control remained a hot topic, but the Ukrainian call was gaining dominance.
Now that its achieved dominance its anyone's guess what will occur legislatively to anything. This topic remains viable, but how the current crisis will effect it is unknown. It could actually cause legislation to get rolling as Republicans and the President seek to divert the news. Or Congress could sink into getting nothing done on anything at all.
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