On Tuesday November 16, the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism held a hearing on Sen. Charles Schumer’s (D-N.Y.) S. 436. Dubbed by anti-gunners the “Fix Gun Checks Act,” rather than “fix” the current National Instant Criminal Background Check System, the legislation would eliminate private sales and gun shows as we know them and expand the range of persons prohibited from owning firearms.
For much of the hearing, Sen. Schumer and his witnesses, including Mayor Michael Bloomberg’s Chief Advisor for Policy and Strategic Planning John Feinblatt, were reluctant to touch upon the drastic changes to federal gun laws contained in the bill. Instead, they pretended that the bill would ensure that states and federal agencies provide more accurate information to the NICS database.
Shredding through this misrepresentation of the bill was Second Amendment scholar Prof. David Kopel of the University of Denver Sturm College of Law.
Kopel first noted that S. 436 would require a background check for all firearm transfers. However, the overly broad wording of the bill would not only eliminate private sales and much of the lawful activity at gun shows, but as Kopel explained, could also extend the transfer requirement to situations such as letting a friend use your firearm at a range, sharing a firearm for self-defense or conducting a safety class in which students handle a firearm.
More insidious, a requirement for background checks for all firearm transfers would result in a system of gun registration, as the federal government would have access to information on all firearm sales. In his written testimony, Kopel noted that Congress has repeatedly rejected firearm registration and pointed out that federal law bars “any system of registration of firearms, firearms owners, or firearms transactions or dispositions.”
Kopel also testified that the bill has several provisions which violate the Fifth Amendment’s guarantee that no person is to “be deprived of life, liberty, or property, without due process of law.” The bill would require that firearm purchasers be denied for “an arrest for the use or possession of a controlled substance within the past five years.” Kopel points out that a mere arrest is not sufficient to bar someone of a constitutionally protected right, explaining that under the bill, a person who was arrested erroneously or arrested and subsequently found not guilty by a jury of his peers would still be barred from possessing a firearm.
Kopel further pointed out a provision of the bill that would ban gun possession by a person who has been ordered by a “lawful authority” to receive counseling. This could include a person whose employer or school administrator orders him to receive counseling as a condition of further employment or enrollment, regardless of the outcome of such counseling. An example, Kopel explained, could be a police officer ordered to receive counseling after using a firearm in the line of duty.
Kopel’s defense of the Fifth Amendment led to a spirited exchange with Sen. Schumer as to the contents of his own bill. Kopel repeatedly corrected the Senator as to the power to strip gun rights the bill would grant to school administrators and other “lawful authorities,” explaining to Sen. Schumer the exact page and line number where the provision could be found. After several denials by Sen. Schumer that the provision would grant this power, Kopel suggested that the senator redraft the text of the bill if it did not reflect his intent.
As a practical matter, Sen. Jeff Sessions (R-Ala.) questioned witness David Cuthbertson of the FBI’s Criminal Justice Information Services Division on the completeness of felony conviction records being provided to the NICS database. The exchange revealed that only 50 percent of arrest dispositions end up in the federal database. Sen. Sessions went on to infer that it should be of a higher priority that accurate data on convicted felons be available to NICS, explaining that there are already gun laws on the books that should be effectively enforced before the Congress contemplates additional restrictions on a constitutional right.
Appropriately, Sen. Charles Grassley (R-Iowa) spoke on a bill that actually would fix the current system of gun checks-S. 1707, the “Veteran’s Second Amendment Protection Act.” The legislation, as Sen. Grassley noted, would correct the injustice where thousands of veterans, who had been entrusted by the federal government with firearms to defend the United States, have been barred from exercising their Second Amendment rights for simply being assigned a fiduciary to manage their finances. The House has already passed such legislation as an amendment to H.R. 2349 and Grassley expressed his hope that the issue will soon be taken up in the Senate.
The NRA-ILA will continue to monitor developments with S. 436 and help make sure this legislation never becomes law.
To watch the video of the hearing, please go to: http://www.judiciary.senate.gov/hearings/hearing.cfm?id=9b6937d5e931a0b792d258d9b33d0484