Two Things That Suck About Manchin-Toomey

No matter who may have been in the room when the Manchin-Toomey background check compromise language was drafted, it’s been met with — at minimum — general skepticism by most on the pro-2A side. That doesn’t mean the amendment doesn’t have some prominent supporters, however. Among them, Alan Gottlieb of the Second Amendment Foundation and its sister organization, the CCRKBA. Now comes David Kopel, however, with a takedown of two key features of the amendment that Gottlieb trumpeted as gun rights achievements. And they come in the areas of gun registration, and interstate transport of firearms . . .

One of the big advances pro M-Ters are peacocking is the fact that the amendment would criminalize the use of FFL information for use in a national registration scheme. The problem as Kopel sees it, though, is that M-T would only mostly criminalize it.

The limit on creating a registry applies only to the Attorney General (and thus to entities under his direct control, such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives). By a straightforward application of inclusio unius exclusio alterius  it is permissible for entities other than the Attorney General to create gun registries, using whatever information they can acquire from their own operations.  For example, the Secretary of HHS may consolidate and centralize whatever firearms records are maintained by any medical or health insurance entity. The Secretary of the Army may consolidate and centralize records about personal guns owned by military personnel and their families.

And that’s not the only hickey in the area of registration. The amendment’s language prohibits use of firearm sales data from current FFLs for the purpose of creating a federal gun registry.

Thus, pursuant to inclusio unius, the AG may centralize and consolidate the records of FFLs who have retired from their business.

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

The vast majority of FFLs are small businesses, often single proprietorships. Only a tiny fraction of FFLs are enduring corporate entities (e.g., Bass Pro Shops) which will never surrender their FFL. By consolidating and centralizing the records of all out-of-business FFLs, BATFE will be able to build a list of most people in the U.S. who have bought a gun from a store. The list will not be fully up-to-date for every gun owned by every individual, but the list will identify the very large majority of gun owners.

And then there are the peaceable journey provisions of the amendment. The proponents say they’ve beefed up protections for people traveling through anti-gun states, giving them the ability to stop for gas or lunch without the threat of winding up in the hoosegow.

The 1986 FOPA law currently in force does a fair job of insulating gun owners as they drive across the country. But the M-T amendment specifies that that protection isn’t extended to those “with the intent to commit a crime punishable by imprisonment for a term exceeding 1 year that involved a firearm.”

In some states, such a crime includes merely not having a state-issued gun permit. So now let’s suppose that the Pennsylvanian is going to Maine. On the way, he travels through Massachusetts. Under current law, FOPA protects him. Under Manchin-Toomey, Massachusetts can arrest and imprison him, and he will have no federal defense. In Massachusetts, possession of a firearm without a state permit is punishable by imprisonment up to to 2 years. Possession outside one’s home or business is a sentence of 2.5 to 5 years, with a mandatory minimum of 18 months. New Jersey and New York City also have penalties of over one year for simple possession without a local permit.

So…does traveling through Massachusetts with a firearm for which you have no permit — as require by state law — constitute intent to commit a crime? Do you want to leave your freedom and financial well-being up to the reasonableness of a Bay State prosecutor?

But wait! As some news accounts point out, Manchin-Toomey also has includes a federal reciprocity feature. Not only can gun owners buy guns out of state, but those with valid carry licenses will be able to carry just about anywhere they go. Isn’t that worth the trade-off for the registration and peaceable journey screw-ups?

I’ve read the M-T language. While that feature appears to be there, I’m not a lawyer. Hell, I didn’t even sleep in a Holiday Inn Express last night, so what the hell do I know? If you listen to Alan Gottlieb, the amendment’s registration and interstate transport features are the bee’s knees. Kopel, however, seems to make a persuasive case that they were, at best, carelessly worded and leaves gun owners open to more legal liability. Are you willing to take your chances? Is it too late to matter at this point?