By David B. Kopel
National Review Online. April 17, 2013
Today, the U.S. Senate will vote on the Manchin-Toomey amendment to Senator Reid’s gun-control package. In a Monday post on the Volokh Comspiracy, I criticized the amendment because two of the important pro-gun-rights provisions in the amendment were misdrafted, and had the opposite effect of what was claimed.
The amendment was drafted with input from Alan Gottlieb’s Citizens Committee for the Right to Keep and Bear Arms, an excellent organization that has done great work on behalf of the Second Amendment for the last four decades. I believe that CCRKBA’s motive in assisting Senator Toomey in his negotiations with Senator Schumer were honorable, but I also believe that the deal struck was not nearly as good for Second Amendment rights as Alan Gottlieb has claimed.
On Tuesday, Gottlieb sent out an email headlined “David Kopel’s Claims Regarding the Manchin-Toomey Amendment are False.”
Below, I’ll respond to each of Alan’s arguments. The arguments are footnoted; for ease of display, I pasted the footnotes at the end of each section to which they pertain.
According to the Gottlieb e-mail:
• Kopel’s false registry claim: The Manchin-Toomey Amendment includes a provision barring the Attorney General from consolidating or centralizing records of gun sales and gun ownership. Kopel argues that because this provision refers only to the Attorney General, it must therefore authorize any other governmental entity to create a registry, including the Army or the Department of Health and Human Services.
➢ Response: Federal law expressly and repeatedly prohibits the creation of a gun registry by any government entity or political subdivision, including through the NICS background check database. And the Manchin-Toomey Amendment leaves those provisions intact.
 18 USC 926(a); PL 112-55 Division B, Title II. In addition to express prohibitions on the creation of a registry, federal statute requires that records generated by successful background checks be destroyed, and regulation clarifies that the destruction must take place within 24 hours. 18 USC 922(t)(2)(C); 28 C.F.R. 25.9(b)(1)(ii). Another federal regulation specifically states that the NICS background check database cannot be used to create a registry. 28 C.F.R. 25.9(b)(3).
The first item in Alan’s response is that there is already a federal ban on gun registration. Unfortunately, that ban is not working very well. To make things considerably worse, Manchin-Toomey provides a definition of gun registration that further weakens the existing ban.
Let’s take a look at current law. Footnote 1 points to 18 U.S.C. 926(a), which provides that the attorney general (the cabinet officer who supervises the Bureau of Alcohol, Tobacco, Firearms and Explosives, the ATF) may only prescribe some rules and regulations, and is specifically forbidden from prescribing certain other types of rules or regulations. In particular, regarding registration:
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act [May 19, 1986] 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.
(“Secretary’s” is a relic of the time was the ATF was under the supervision of the Secretary of the Treasury. It should have been changed to “Attorney General” when the ATF was moved to the Department of Justice.)
Has this stopped the Obama administration from registering guns? Definitely not. On July 12, 2011, the Obama administration sent a “demand letter” to every licensed firearms dealer in the four southwest border states ordering that any sale of two or more semi-automatic rifles to a person within five business days must be reported to the ATF. Ostensibly, this mass demand for gun-sales records is part of “a criminal investigation” into gun trafficking into Mexico.
Suits were filed over the demand letters, but they lost at the district-court level and are currently on appeal to the D.C. Circuit and Fifth Circuit Courts of Appeals. In the D.C. Circuit, the three-judge panel was quite uninterested in the argument that the compilation of records on long-gun buyers violated the statutory prohibition on “any system of registration of firearms.”
The same problem cropped up during the Clinton administration, when Attorney General Reno defied the statutory requirement that the FBI’s National Instant Criminal Background Check System “destroy all records of the system” regarding approved sales. Instead, she kept them for six months, supposedly for auditing purposes.
The NRA sued, but lost 2-1 in the D.C. Circuit. The majority reasoned that “destroyed” did not mean “destroyed immediately” and that the anti-registration statute “does not prohibit all forms of registration.” And besides, reasoned the majority, the Reno records did not include the name of every U.S. gun owner. (Never mind that the statute prohibits “any system of registration.”)
Later, Attorney General Ashcroft fixed the problem with a regulation (cited in Gottlieb’s footnote 1) requiring the destruction within 24 hours of background-check records from approved sales. Of course, this regulation can be repealed whenever the Obama administration, or any future administration, chooses to do so.
As NRA v. Reno and long-gun registration cases demonstrate, the problem with the registration ban in Toomey-Manchin (and the parallel language in the instant-check statute) is that it has very broad language (“any system of registration of firearms, firearms owners, or firearms transactions or dispositions”) that the courts construe very narrowly, by acting as if “any system of registration” only applies to a system which registers everyone or everything.
Now look at how Manchin-Toomey makes things worse:
(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.
Now, we have a specific answer to the judicial question “What is gun registration?” The answer provided by Manchin-Toomey is that gun registration is only something which is done by “the Attorney General.” It is something that only involves the attorney general acquiring particular types of records.
So now suppose that a few months after Manchin-Toomey becomes law, the Department of Homeland Security begins collecting all state gun-registration records, and all state records of persons with concealed-carry permits. Just this month, it was revealed that the Department of Homeland Security has been working with the Missouri Department of Revenue to obtain electronic access to its permit list. In addition, the federal Social Security Administration, in a joint project with the ATF, had requested and been sent a complete list of all of Missouri’s concealed-carry-permit holders. The data sharing violated Missouri state law, and the revelations led to the resignation of Missouri’s director of the Department of Revenue.
When people complain that DHS (or the Social Security Administration) is violating the ban on federal gun registration, DHS and Social Security can reply, accurately, that they are doing no such thing. Manchin-Toomey specifically defines “national gun registry” as only something which is under the control of the attorney general, which Homeland Security and Social Security are not.
Further, Manchin-Toomey says that the only kinds of records which could constitute a “national gun registry” are the records which are maintained by gun sellers or records maintained by medical or health insurance entities. DHS and Social Security, in contrast, would be collecting only records that belong to state governments.
If Manchin-Toomey had gone through the normal committee process with earings, the problem might have been pointed out and fixed, so that the entire federal government was expressly prohibited from compiling gun registrations lists from any source, rather than just prohibiting the attorney general from compiling just two particular types of documents.
Or, to take another approach, suppose that Eric Holder decides to repeal the Ashcroft regulation, and begins keeping instant-check records for three years. He won’t be violating Manchin-Toomey, because instant check records of gun sale approvals by the FBI aren’t records that belong to gun sellers or health-insurance entities — they already belong to the FBI.
Pursuant to the instant-check provisions, Holder is supposed to “destroy” the NICS approval records, but the D.C. Circuit has already said that “destroy” really means . . . destroy eventually.
In my article for Volokh, I explained that the narrow definition of “national gun registry” as something that only the attorney general could do leaves other federal departments free to create registries, such as the Department of the Army and the Department of Health and Human Services. (I should have also pointed to Homeland Security and Social Security.)
Gottlieb rebuts my points about Army and HHS:
➢ Response: Moreover, both the Secretary of the Army and the Secretary of Health and Human Services are specifically prohibited from creating a registry of gun ownership.
 Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. Law 111-383, Section 1062(a) (2010).
 Patient Protection and Affordable Care Act, Pub. L. No. 12-110, Sec. 10101(e), March 23, 2010.
The cited prohibitions are, unfortunately, not as strong as Gottlieb thinks. The Department of Defense prohibition does not apply to “(1) a military installation; or (2) any other property that is owned or operated by the Department of Defense.” So, for instance, DOD could still require the registration of guns owned by military personnel and their families if they live in DOD-owned housing, which about a third of them do.
As for HHS, Gottlieb accurately cites the firearms protections in Obamacare: Wellness programs under the law cannot require information about the insured’s firearms; the law specifically refuses to grant the HHS secretary the authority to collect information about individuals’ firearms; Obamacare specifically does not grant the secretary the authority to create databases of gun owners; insurance rates may not discriminate against gun owners; no activity undertaken under the powers granted by Obamacare may require individuals to disclose gun-ownership information.
These are good and solid protections and, as long as they stay on the books, Obamacare cannot be used to create gun registrations. However, HHS isn’t an entity that sprang into being with the passage of Obamacare; it has myriad other statutory powers that long predate Obamacare, and nothing in the health-care law limits HHS from using those other powers for gun registration.
Moreover, nothing in the Obamacare statute limits other cabinet departments, such as Homeland Security, from asking doctors, insurance companies, or any other medical personnel to provide records of patients’ gun ownership.
➢ Response: Finally, Kopel completely ignores the fact that Section 123 of the Manchin-Toomey Amendment that makes it a 15-year federal felony to compile or create such a registry is not directed simply at the Attorney General or Department of Justice employees; it is directed at “any person”, and makes it a general federal crime to misuse any of the required federal record keeping under the Gun Control Act for this purpose no matter who attempts do it.
Here, Gottlieb may not have read the bill carefully. The new federal felony provision is as follows:
Section 924 of title 18, United States Code, is amended-
(1) in subsection (a), by adding at the end the following:
(8) Whoever makes or attempts to make a transfer of a firearm in violation of section 922(t) to a person not licensed under this chapter who is prohibited from receiving a firearm under subsection (g) or (n) of section 922 or State law, to a law enforcement officer, or to a person acting at the direction of, or with the approval of, a law enforcement officer authorized to investigate or prosecute violations of section 922(t), shall be fined under this title, imprisoned not more than 5 years, or both.”; and
(2) by adding at the end the following:
(q) Improper Use of Storage of Records.-Any person who knowingly violates section 923(m) shall be fined under this title, imprisoned not more than 15 years, or both.
Part 1 provides a five-year penalty for violating the background check provision. (This applies, remember, to anyone who sells a gun “pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.” If you list a gun for sale on your gun club’s website and sell your gun to a fellow club member without conducting a background check, you could go to federal prison for up to five years.
Part 2 is the 15-year penalty for gun registration. Yes, as Gottlieb accurately writes, the penalty is for “any person.” What does “any person” have to do in order to commit the crime? He must be a person “who knowingly violates section 923(m).”
Okay, but what kind of person can violate 923(m)? Here’s what 923(m) says: “(m) The Attorney General may not consolidate or centralize the records . . .”
In short, if you are not the attorney general, or someone whose boss is the attorney general, you cannot violate 923(m). If every federal employee, every state employee, and every American citizen compiled a gun registry, the only persons who could be punished with 15 years are employees of the attorney general.
Manchin-Toomey forbids the attorney general to “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.”
In other words, the ATF can’t go to Federal Firearms Licensees (FFLs) and demand the sales records which the FFLs are required to keep pursuant to the Gun Control Act of 1968, which stipulated that records would have to be kept of retail firearms sales, but that they would be held by the dealer, not the government.
But when a dealer leaves the business, the 1968 law requires that he send his sales records to the ATF. In my Volokh post, I expressed the concern that Manchin-Toomey does not forbid the ATF to “consolidate or centralize” the retired dealer records.
• Kopel’s false claim regarding the use of retired dealer records to create a registry: Kopel argues that the Amendment authorizes the centralization of retired dealer records because it only expressly prohibits the creation of a registry from the records of “a person with a valid, current license under this chapter.” He argues that because ATF already has these records under its control, it can easily centralize them into a registry.
Ø Response: The existing prohibitions on government registries extend to the records of retired dealers and while the ATF houses the records, it is prohibited from centralizing them. The agency has gone to considerable expense to comply with this law, maintaining the records on microfiche rather than in a centralized database. Nothing in the Amendment would alter the treatment of these records.
This isn’t quite accurate, although Gottlieb’s mistake is understandable. In the past, the ATF did microfiche the records in an attempt to comply with 18 U.S.C. 926(a)’s ban on “any system of registration of firearms, firearms owners, or firearms transactions.”
More recently, however, the ATF has been doing optical character recognition of the dealers’ records. The use of OCR explains why the ATF has become extremely rigid about how the forms must be filled out — for example, dealers get in a lot of trouble if the buyer fills in his state of residence as “Colorado” or “Colo.” rather than using the two-letter postal abbreviation.
Once the OCR forms are in the database, the ATF can conduct a query by make and serial number, but the database does not allow a query by buyer’s name. With serial-number query, you will get the retail-sale record for that particular gun, including the name and residence of the buyer.
By not allowing a direct query by buyer’s name, the ATF is, at least arguably, attempting to comply with 18 USC 926(a)’s existing ban on “registration of . . . firearms owners.” Whether the current database complies with 926(a)’s existing ban on “registration of firearms” is more questionable.
But if Manchin-Toomey passes, the ATF’s problem is solved. Manchin-Toomey’s 923(m) tells us what a “national gun registry” is. As long as the ATF obeys the new 923(m), the Bureau will have a strong argument that it is also obeying the old 926(a).
On the day that Manchin-Toomey becomes law, the ATF can likely do whatever it wants with the retired-dealer records: allow name-based queries, or even compile complete lists of every individual buyer, along with the specific purchases a buyer has made.
Now suppose that Gottlieb’s legal organization, the Second Amendment Foundation, brings a suit against the new ATF practices. (SAF has, by the way, done a vast amount of great legal work, including taking the lead in the enormous Supreme Court victory in McDonald v. Chicago.) SAF’s lawyers will have to concede that 923(m) defines “gun registry” and says that a “gun registry” is not something that involves retired-dealer records. Challengers will thus have to argue that when 926(a) says “any system of registration,” the phrase does include retired-dealer records. The chances of winning that case are slender.
Current federal law protects interstate travelers from being prosecuted for not having gun permits in the states through which they travel – you can take your handgun from Pennsylvania to Vermont without having to acquire a New York State pistol permit, for instance.
• Kopel’s false interstate travel claim: The Amendment’s interstate travel prohibition clarifies current law. The Amendment provides that regardless of state law, people in transit may carry their unloaded, locked guns across state lines, unless they are traveling with the intent to commit a crime punishable by a term of imprisonment of more than a year. Kopel argues that this language makes it unlawful for people to travel through states where possession of a gun without a permit is crime punishable by a term of imprisonment of more than one year.
➢ Response: The Amendment specifically states that it supersedes state law which means that state laws regarding the possession and carrying of firearms are pre-empted for people traveling through the state pursuant to this provision. A state law prohibiting possession without a permit will be superseded by the federal law allowing interstate travel.
➢ Response: The Amendment explicitly bars arrest or detention for violations of state law “relating to the possession, transportation, or carrying of firearms or ammunition” unless there is sufficient cause to believe that the person is not behaving lawfully under the bill’s interstate travel provisions. In other words, individuals complying with the amended interstate travel terms will not be in violation of state law.
 The section applies “notwithstanding any provision of any law (including a rule or regulation) of a State or any political or subdivision thereof.”
Manchin-Toomey provides a full re-write of the above interstate-travel provision, breaking it into various sub-sections. The revised language has many useful improvements. For example, if you are driving, the current provision requires that the gun be in the automobile trunk, and if the auto has no trunk (e.g., an SUV or a pickup truck), the gun must be in “a locked container.” Manchin-Toomey still allows use of a locked container, but also allows the option of just putting a lock on the gun itself. Likewise, there are new and better protections against arrest, as Gottlieb accurately points out in his second “Response” on this topic.
But what Gottlieb has overlooked is the changes wrought by the revised structure of the provision. In order to qualify for the protection of the new interstate-travel codicil, you have to be engaged in “transport.” If you’re not engaged in “transport,” then the new statute does not apply to you. Here’s the language:
a) In General.-Section 926A of title 18, United States Code, is amended to read as follows:
926A. Interstate transportation of firearms or ammunition
(a) Definition.-In this section, the term ‘transport’-
(1) includes staying in temporary lodging overnight, stopping for food, fuel, vehicle maintenance, an emergency, medical treatment, and any other activity incidental to the transport; and
(2) does not include transportation-
(A) with the intent to commit a crime punishable by imprisonment for a term exceeding 1 year that involves a firearm; or
(B) with knowledge, or reasonable cause to believe, that a crime described in subparagraph (A) is to be committed in the course of, or arising from, the transportation.
So if you fail the new provision on “transport,” then you are excluded from the protections provided by the whole measure. Under Manchin-Toomey, you are not engaged in “transport” if you have “knowledge, or reasonable cause to believe” you are committing “a crime punishable by imprisonment for a term exceeding 1 year that involves a firearm.”
Well, if you enter Massachusetts with a gun in your car and you don’t have a Massachusetts gun permit, your act is a crime punishable by more than year in prison and involving a gun, and you probably know it. (Possessing a gun outside one’s home or business without the requisite permit is punishable by two and a half to five years in prison. New Jersey and New York City also have punishments of over a year in prison for simple unlicensed possession.)
When you are arrested and prosecuted by Massachusetts, New Jersey, or New York City, you won’t be able to make any arguments based on Manchin-Toomey’s new travel protections, because you will have failed one of the clauses, and thus be considered outside of it.
The whole problem would have been solved if the Manchin-Toomey drafters had stuck with the original language in the House bill that was intended to improve transportation protection. With the original House bill’s language, 926A would protect you if you intended to commit the crime of unlicensed gun possession, and not protect you if you intended to commit the crime of armed robbery. The Manchin-Toomey language denies you protection in both situations.
I have no doubt of Alan Gottlieb’s sincere dedication to the Second Amendment. It is easy to miss subtle drafting problems, especially during secret and hectic negotiations, especially when the other side is led by Senator Charles Schumer and a billionaire with an infinite supply of lawyers. When I’ve been involved in reviewing legislation under time pressure, I’ve overlooked things too. But that’s why legislation needs to go through committee hearings and be available for public review for more than just a few days.
Alan’s outstanding work on behalf of the Second Amendment in the past will undoubtedly by matched by more great work in the years to come. I just think he’s making a mistake right now.
— David B. Kopel is research director of the Independence Institute in Denver, an associate policy analyst at the Cato Institute in Washington, and an adjunct professor of constitutional law at Denver University’s Sturm College of Law.