FC: Chuck Schumer wants to invade privacy of gun buyers, open NICS database
Declan McCullagh
declan at well.com
Tue Dec 18 09:22:53 PST 2001
Thanks to Sen. Chuck Schumer (D-NY), one of our great champions of privacy,
private property, and limited government, any American buying a gun from a
dealer or other licensed seller may have their name permanently embedded in
the FBI's NICS database.
Currently federal law (http://www4.law.cornell.edu/uscode/18/922.html)
orders the FBI to "destroy all records" of a gun purchase that is approved
as lawful. Naturally those champions of individual liberty at the FBI and
Justice Department have creatively interpreted this straightforward
requirement -- to mean precisely the opposite of what the law says. Thus
records have been kept for a period of 90 to 180 days.
Schumer's bill would "allow the Federal Bureau of Investigation to access
NICS audit log records for the purpose of responding to an inquiry from any
federal, state, or local law enforcement agency in connection with a civil
or criminal law enforcement investigation." Seems to me that would let the
FBI access and store records of the vast bulk of firearm purchasers from
this point on, if this bill were to become law. Here's the text of
Schumer's proposal:
http://thomas.loc.gov/cgi-bin/bdquery/z?d107:s.01788:
Naturally the section reducing the privacy of lawabiding Americans is
titled "privacy protection." Glad to know that Schumer hasn't lost his touch.
-Declan
(Note: Not all U.S. firearm purchases must go through a dealer who checks
in with the NICS database. Private sales are still, for now, allowed
without federal records kept.)
***********
http://www.cnsnews.com/ViewNation.asp?Page=\Nation\archive\200112\NAT20011217a.html
Senators Propose 'Gun Owner Registration'
By Jeff Johnson
CNSNews.com Congressional Bureau Chief
December 17, 2001
Capitol Hill (CNSNews.com) - Sen. Charles Schumer (D-N.Y.) wants the
Department of Justice to keep personal data on law-abiding gun buyers
from the National Instant Check System (NICS), and to offer the
information for unlimited use by state and local agencies.
National Rifle Association Executive Vice President Wayne LaPierre
called the move "gun owner registration, plain and simple."
Making good on a promise he made during a Senate Judiciary Committee
hearing December 6, Schumer introduced the "Use NICS in Terrorist
Investigations Act" (S. 1788) after Attorney General John Ashcroft
refused to allow the FBI access to NICS records of lawful gun
purchases.
***********
CENTER-RIGHT, a free weeklyish e-newsletter of centrist, conservative, and
libertarian ideas
Issue 187, Dec 10, 2001
========================================================
"Terrorism and Guns: Ashcroft's 'coddling' of gun owners,"
by Dave Kopel (http://www.davekopel.com), Independence Institute,
and Prof. Glenn Reynolds (http://www.instapundit.com), Univ. of Tennessee
from the National Review Online, Dec. 17, 2001,
http://www.nationalreview.com/kopel/kopel121701.shtml
Attorney General John Ashcroft has come under fire for what Boston Globe
columnist Tom Oliphant calls "coddling" gun owners. Oliphant's attack was
the latest round in the concerted assault on Ashcroft's Second Amendment
positions, which started this spring when Ashcroft announced his view
(since supported by the recent U.S. Court of Appeals decision in United
States v. Emerson,
http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm) that the
Second Amendment protects an individual right to arms.
Ashcroft's stance was consistent with that of the attorneys general for
Ronald Reagan, Franklin Roosevelt, Abraham Lincoln, and Andrew Jackson,
among others (http://www.nationalreview.com/kopel/kopel052901.shtml). It
was also consistent with most Supreme Court statements citing the Second
Amendment, including everything the Rehnquist Court has ever said
(http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm).
Ashcroft's view mirrored repeated congressional declarations of the
individual right to arms -- including in the Freedmen's Bureau Act of 1866,
the Property Requisition Act of 1941, and the Firearms Owners' Protection
Act of 1986. It's also compatible with a wide variety of gun controls, as
demonstrated by the Court of Appeals decision in Emerson, which ruled that
the particular federal gun law at issue did not violate the Second Amendment.
Ashcroft was, however, out of step with the antigun groups, who recognize
that a meaningful Second Amendment makes it impossible to ban guns across
the board. For the same reason, the attorney general was out of step with
the position of the Clinton/Gore/Reno administration. Indeed, the
difference between the Bush/Ashcroft view of the Second Amendment
(http://www.nationalreview.com/comment/comment050500a.html) and the
Clinton/Gore/Reno view was -- as President Clinton admitted -- the reason
Gore lost five close states, and thus the election.
Still smarting from that humiliation, gun prohibition groups have decided
to attack Ashcroft for obeying federal gun statutes and for complying with
a regulation created by Attorney General Janet Reno. Last week, on the
morning Ashcroft was scheduled to testify before the Senate Judiciary
Committee, New York Times reporter Fox Butterfield turned a press release
from a gun-prohibition group, the Violence Policy Center
(http://www.vpc.org/press/0112ash.htm), into a Times article. Ashcroft's
opponents on the Senate Judiciary then used the article to excoriate
Ashcroft for obeying the law. Predictably, gun-prohibition sympathizers
like Oliphant and the Atlanta Journal-Constitution's Cynthia Tucker have
begun piling on.
At issue was Ashcroft's decision to tell the FBI that it couldn't start
rummaging though the federal records of *legal* gun buyers as part of its
terrorism investigation. Indeed, the law forbids the keeping of such
records in the first place. It does, however, authorize the federal
government to retain records of people -- such as illegal aliens, or people
with temporary visas -- who illegally attempt to buy guns. Those records
are available to the FBI for any and every law enforcement purpose.
Mr. Butterfield didn't bother to inform his Times readers about what
federal law actually says. So let's examine the laws directly.
Since 1998, all federally regulated gun purchases require that the buyer
obtain approval from the FBI's "National Instant-Check System," which
ensures that the buyer is not a "prohibited person." NICS checks the
buyer's name against a database of felons and other prohibited people.
The NRA had pushed the instant check as an alternative to the Brady Bill's
waiting period. As a compromise, Congress made the waiting period
effective for five years (1994-98) for handguns only, to be replaced in
1998 by the instant check on all guns. Determined to prevent NICS from
being perverted into a gun registration system, Congress -- thanks to votes
of many Brady Bill supporters -- specifically forbade the government to
compile records of lawful purchasers.
As enacted, the national instant check law, 18 U.S. Code 922(t)
(http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=922)
provides that:
(2) If receipt of a firearm would not violate subsection (g) or (n) or
State law, the [Instant-Check] system shall --
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than
the identifying number and the date the number was assigned) and all
records of the system relating to the person or the transfer.
(Emphasis added.)
This means, of course, that if the feds were following the law, there
wouldn't be any records to examine, since they're supposed to be destroyed
once a sale is approved.
It also means that every congressman who voted for final passage of the
Brady Act in 1993 (including Senators Kennedy, Biden, and Leahy, as well as
then-Representative Schumer) voted for this explicit ban on keeping the
federal records of legal gun buyers.
The 1993 prohibition was reinforcing a 1986 Congressional statute, the
Firearms Owners' Protection Act (FOPA), which creates a blanket ban on a
federal gun registry. The relevant part of FOPA, 18 U.S. Code 926
(http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=926),
provides:
(a) The Secretary may prescribe only such rules and regulations as are
necessary to carry out the provisions of this chapter... No such rule or
regulation prescribed after the date of the enactment of the Firearms
Owners' Protection Act may require that records required to be maintained
under this chapter or any portion of the contents of such records, be
recorded at or transferred to a facility owned, managed, or controlled by
the United States or any State or any political subdivision thereof, nor
that any system of registration of firearms, firearms owners, or firearms
transactions or dispositions be established. Nothing in this section
expands or restricts the Secretary's authority to inquire into the
disposition of any firearm in the course of a criminal investigation.
Of the current members of the Senate Judiciary Committee who were in the
Senate in 1986, only Kennedy voted against passage of FOPA. Senators
Biden, Leahy, Hatch, Thurmond, Grassely, and Specter all voted for it, and
hence for the registration ban.
In addition, the annual appropriation for the Department of the Treasury
(which controls the Bureau of Alcohol, Tobacco and Firearms) always
contains a ban on spending any funds for creation of a federal gun registry.
Quite plainly, all this means that (1) records aren't supposed to be kept
on legal purchases of firearms, and (2) it's illegal to establish a
national gun registration system. This was underscored in the recent case
of RSM v. Buckles, 254 F.3d 61 (4th Cir. 2001)
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=4th&navby=case&no=001777P),
where the federal Court of Appeals pointed out that the government's power
to scrutinize gun records was limited, and that a national gun-registration
system -- even one established through "backdoor efforts" -- was illegal.
Even so, when preparing to implement the National Instant Check System,
then-Attorney General Reno announced that the government would keep records
on lawful gun purchasers for 180 days. The stated purpose of these records
was to audit NICS, to make sure it wasn't being misused (e.g., to ensure
that gun dealers were not requesting instant checks on people who were not
their customers -- for example, in case a gun-store owner started
requesting background checks on his daughter's boyfriends).
The NRA sued, arguing that by saying the records had to be destroyed,
Congress did not mean they should be destroyed "eventually, when the
Attorney General gets around to it." The U.S. Court of Appeals for the
District of Columbia, in a 2-1 decision
(http://www.nationalreview.com/comment/comment081000a.shtml), upheld the
180-day record retention. The majority opinion, written by a Clinton
appointee, claimed that federal law "does not prohibit all forms of
registration." The Clinton majority also asserted that because Congress
did not say the records had to be destroyed "immediately," the records
could be destroyed sooner -- or later.
Dissenting, Judge David B. Sentelle, a Reagan appointee, retorted that
Congress had been perfectly clear. "The Attorney General's position,"
wrote Sentelle, "strikes me as reminiscent of a petulant child pulling her
sister's hair. Her mother tells her, 'Don't pull the baby's hair.' The
child says, 'All right, Mama,' but again pulls the infant's hair. Her
defense is, 'Mama, you didn't say I had to stop right now.'"
The Senate responded to Reno's machinations by restating its 1993
intent. In 1998, Senator Bob Smith (R., N.H.) proposed a rider to an
appropriations bill to mandate immediate records destruction. The Senate
approved the Smith Amendment, 69 to 31, thanks in part to the support of
Senators Daschle, Leahy, and Murray. Later, a conference committee
stripped the Smith Amendment, as well as some other non-appropriations
riders, from the appropriation bill.
During the 2000 election, candidate Bush condemned the Clinton/Gore/Reno
registry of legal gun buyers, and promised to terminate it.
Meanwhile, Reno promulgated a regulation cutting the retention time to 90
days. The Reno regulation forbids the use of the NICS registry for general
law enforcement purposes, while allowing registry use for auditing the
performance of NICS, as well as for civil or criminal cases arising from
the operation of NICS.
Thus, it is plainly illegal for the FBI to dig into the NICS registry for
general investigations. Had Attorney General Ashcroft allowed such access,
he would have violated the law. (This summer, Ashcroft proposed a revised
regulation to cut the retention time to 24 hours, but even this shorter
time period violates the congressional mandate that records be destroyed,
not kept for "a short period of time.")
Fox Butterfield neglected to tell his readers about the 1986 law forbidding
a federal gun registry. He also didn't tell them about the 1993 law
mandating destruction of records on legal buyers. Of the Smith Amendment
-- which passed the Senate 69-31 -- Butterfield wrote, "That amendment was
defeated."
The Senate Democrats had some basis for being angry with Ashcroft after he
began the Senate hearing by declaring, "To those who scare peace-loving
people with phantoms of lost liberty, my message is this: Your tactics only
aid terrorists, for they erode our national unity and diminish our resolve."
Ashcroft may be correct that his proposals are important for antiterrorism,
and do not violate the Constitution. But our system of checks and balances
works best when all potential civil-liberties restrictions are subjected to
critical public scrutiny. Indeed, the value of the Leahy/ACLU loyal
opposition was demonstrated at the Ashcroft hearing, when the attorney
general promised the military tribunals would not normally meet in secret,
and would be confined exclusively to terrorist offenses. (Both positions
are much more rights-protective than the text of President Bush's November
13 executive order authorizing the tribunals.)
Ashcroft's harsh words against the skeptics were unfortunately reminiscent
of Bill Clinton's denunciation
(http://www.davekopel.com/Terror/LawRev/Preventing_a_Reign_of_Terror.htm)
of the civil liberties groups that lobbied against his plan to use the
Oklahoma City bombing as a pretext for a huge expansion of federal
surveillance and wiretapping, and use of the military in domestic law
enforcement -- although none of the Clinton proposals would even arguably
have prevented the bombing.
The Democrats also feel betrayed that the Bush administration announced the
military tribunals, the eavesdropping on attorney-client conversations, and
similar new measures before the ink was barely dry on the misnamed USA
Patriot Act (http://www.nationalreview.com/kopel/kopel092101.shtml), in
which Senate had caved in to administration pressure for even more
government surveillance, and for the power to conduct secret searches of
homes and businesses. These new laws do not sunset and are not restricted
to terrorism cases; they apply as well to federal enforcement of laws about
pornography, drugs, endangered species, child support, and everything else.
After the House Judiciary Committee unanimously passed a much better, and
properly focused, antiterrorism bill, Tom Daschle pressured Senate
Judiciary Committee Chair Pat Leahy to surrender to Ashcroft's demands for
a much broader bill. Leahy, did so. Leahy & co. feel double-crossed now
that the administration has implemented military tribunals by executive
decree, after Congress had already given the administration almost
everything it asked for.
A proper response would be for the Senate Judiciary to commence hearings on
repealing or sun setting the many non-terrorism provisions of the USA
Patriot Act, which consist mostly of items that have been on the FBI
bureaucracy's wish list for many years, and that had never been able to
pass previous Congresses.
Instead, we have the absurd spectacle of senators denouncing the attorney
general for respecting civil liberties, and for obeying federal statutes
and his predecessor's regulation. At Ashcroft's confirmation hearings,
Democrats extracted absolute promises that he would obey and enforce all
the laws, even ones he disagrees with. Now, he's being skewered for not
inventing a loophole in federal laws that allow no room for loopholes.
Would it make sense for Congress to change the law to allow registration of
legal gun purchasers, to assist terrorism investigations? No one has yet
made such a case. The FBI has gone fishing for every possible bit of
information on the 600 aliens who have been detained. This doesn't mean
that we need to drastically reduce the privacy of half our citizen
population (about half of all households own guns) simply for the sake of
fishing expeditions.
Remember, current law allows record retention for people who illegally
attempt to buy guns. It would also allow putting the name of every alien
with a temporary visa, and every known illegal alien, into the FBI database
of prohibited persons -- since those people cannot buy guns lawfully. [18
USC Sec. 922(d)(5)(B) & (g)(5)(B)
(http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=922)].
Yet the St. Petersburg Times, perhaps the most antigun daily newspaper in
America, wrongly told its readers last Sunday that Ashcroft had cut off
access to records of illegal aliens who had been stopped from buying guns.
Current law also allows gun tracing -- the investigation of the sales
history of a particular firearm. If the FBI finds a firearm in the home of
a detained person, the Bureau of Alcohol, Tobacco and Firearms is allowed
to trace the gun (using its serial number) from its manufacturer to the
wholesaler to the retail store. From there, the BATF can interview the
person who bought the gun, whoever he transferred it to, and so on.
As part of the tracing that is already allowed, the BATF compiles lists of
guns used in crimes, and can trace ownership records. The BATF has
successfully connected some of the guns on its trace list with some of the
detained people.
We don't know if any of the detained people had permanent resident status
(which would allow them to buy guns). It's also possible that an illegal
alien or a temporary could obtain a driver's license in his own name, buy a
gun, and get approved by NICS. The problem is that, according to the
General Accounting Office, some -- but not all -- non-immigrant aliens and
known illegal aliens are put on the NICS prohibited list. What we need is
better record keeping on aliens, not on law-abiding Americans.
Yet -- even for aliens who slipped through the current, incomplete NICS
list -- if anyone purchases more than one handgun in a five-day period, his
purchases are reported to federal and local law enforcement, and those
records are currently available for checking
(http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=27&PART=178&SECTION=126a&YEAR=2001&TYPE=TEXT).
It might help the FBI to gather information on detained suspects if every
time a person checked into a hotel or motel, a record were kept by the
federal government. They could then study the suspect's travel
patterns. Yet we don't register all hotel and motel stays for the entire
population. The privacy interests of the American people are held to
outweigh the possible benefit to law enforcement.
Similarly, we could require the registration of everyone who purchases or
checks out a book on nuclear physics or biological or chemical
warfare. It's hard to deny that it would be helpful for the FBI to be able
to check this database against the names of the detainees. But we don't
keep lists of people who own books -- even especially dangerous or
incriminating books -- because First Amendment and privacy rights are more
important.
The case against gun registration is stronger still. Even besides the
privacy issue, there is the undeniable fact that gun registration lists
have been repeatedly used for gun confiscation. This has happened in
California, New York City, England, Canada, Australia, and Nazi-occupied
Europe, among other places.
Before Sarah Brady became head of Handgun Control, Inc. (now renamed "The
Brady Campaign"), her predecessor, the late Nelson T. "Pete" Shields,
explained the plan to The New Yorker in 1976:
The first problem is to slow down the number of handguns being produced and
sold in this country. The second problem is to get handguns
registered. The final problem is to make possession of all handguns and
all handgun ammunition -- except for the military, police, licensed
security guards, licensed sporting clubs, and licensed gun collectors --
totally illegal. [Richard Harris, "A Reporter at Large: Handguns," New
Yorker, July 26, 1976, p. 58.]
Gun confiscation is, of course, an indispensable tool for tyranny, as our
Founders knew -- and as Mullah Omar proved quite recently. As the Boston
Globe reported
(http://www.boston.com/dailyglobe2/343/nation/How_Omar_led_Taliban_to_power_then_defeat%2B.shtml):
Omar guaranteed the residents a peaceful and secure community if they
agreed to surrender their arms to him. If the residents were ever
threatened by someone from outside, Omar pledged to be responsible for
their safety.
Within three or four days, everybody in the town surrendered their weapons
to Omar...
Congress was right to outlaw federal gun registration, and Attorney General
Ashcroft is right to obey the law. The media and the Senate -- which
behaved with such irresponsible passivity when Ashcroft rammed the
so-called "USA Patriot Act" through Congress -- ought to stop demanding
infringements of the Second Amendment. Instead, they should start opposing
all efforts to further erode the Bill of Rights. Attorney General
Ashcroft, meanwhile, needs to stop denouncing those who are defending the
Fourth and Fifth Amendments with the same commendable scrupulousness with
which he protects the Second.
=========
CENTER-RIGHT is edited by Eugene Volokh, who teaches constitutional law,
copyright law, and a seminar on firearms regulation at UCLA Law School
(http://www.law.ucla.edu/faculty/volokh), and organized with the help of
Terry Wynn and the Federalist Society (http://www.fed-soc.org/).
Check out (and link to) our Web site,
http://www.center-right.org
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