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No matter who may have been in the room when the Manchin-Toomey background check compromise language was drafted, it’s been met with — to say the least — 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.

Those features 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 Firearm Owners Protection Act law currently in force does a fair job of insulating gun owners as they drive across the country. But the M-T bill 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 required 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 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 much at this point?


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  1. There’s at least one error here. MA allows out of state travelers to carry their firearms through the state unloaded and locked in the trunk as long as they have a valid permit from their home state for that firearm.

      • …and what about magazine (and other) restrictions? Am I a felon if I travel through CA, NY, etc with 11+ round magazines? What about varying state laws surrounding how a firearm and ammunition can and cannot be stored in your car?

        What about the CCW permit reciprocity? If CA has to recognize my WA carry permit, am I still responsible for knowing its labyrinth of firearms laws and abiding by them? Or, would I be an instant CA Felon for violating its assault weapons laws if I bring my semi-auto pistol with a threaded barrel into the state? 11+ round mags? etc etc etc…

        As much as I would LOVE to have my permit automatically recognized in all 50 states just like my driver’s license is, it’s a trap waiting to turn good people into criminals if the law doesn’t automatically go by the issuing state’s rules. For instance, I can’t get a ticket in CA for dark window tint since my car is registered in WA and it’s legal here. If you have to suddenly follow each state’s own firearms laws when you cross the border… it would be impossible.

        • California does not have a peaceable journey law per se, but explicitly recognizes the Federal law in the matter with regard to “assault weapons” (with regard to other guns, CA’s law is actually less restrictive with long guns than FOPA is, but handguns have to be in a locked container). You can read about it on the CA DOJ website. So-called assault weapons, for instance, need to be unloaded and in a locked container (trunk counts). You are only allowed to take it out for an official match organized by a sporting organization in California, or to bring into a hotel room or other place where you are staying for the night. Same with the 10+ magazines. Note, cops may be stupid and ignorant of said law, but it does exist, on the CA level.

          Also, unlike these eastern States, you don’t need a permit to own a gun. One of the many ways that California, as bad as it is, still looks like Texas compared to NY or NJ. Frankly, even if pulled over, if gun stuff is out of sight, chances of even being asked about it are very slim.

      • That’s the question i have of national reciprocity (if such a thing existed). What of the residents of constitutional carry states? A valid driver’s license of that state?

        • I thought Vermont was the only state that didn’t offer a license at all, but regardless anyone who can own a firearm can get a Florida out of state CC permit if they need one.

    • For the love of God, I was correcting an error in this man’s statement. Not initiating a debate on the existential rights of firearms owners.

  2. I don’t see any reciprocity in the bill. The closest I can find is that a seller may accept an out-of-state permit in lieu of a background check so long as that permit was issued in the last 5 years AND required a background check to get. As far as I can tell the buyer would still have to be a resident of the seller’s state. Of course, I am also not a lawyer.

  3. Also, and this is a little off topic, but it really grinds my gears that the GOP is, in general, so opposed to gun laws for all the right reasons, but then goes out of their way to enact things like the Patriot Act, the Cold Medicine Registry and Voter ID laws. I’ll support them in 2014 (for the first time ever), but I’ll be damned if I’m happy about it.

    • Couldn’t agree more about the Patriot Act, but you can attribute that to NeoCons, hardly true Republicans.

      Not sure what your beef with voter ID laws is, though.

      I don’t have any binding love for the Republican party, but as far as issues go that are of great import to me, the GOP is far closer to my sweet spot than just about any Democrats are.

      • Voter ID laws A)Are a solution in search of a problem B)would be a completely ineffectual solution to any problem and C)constitute an incremental erosion of liberty and an affirmation of government authority where it should not exist.

        • This!

          We need to broaden our argument into a defense of the entire Constitution and all civil liberties. We will be politically unstoppable when we are ‘pro-freedom’ instead of ‘pro-gun’ .

          That is something America will rally behind.

    • i think that this is spot on: the problem is that two wrongs do not make a right, but after supporting infringements on privacy, indefinite detention, and other abuses, we now have liberals who say “hey whats wrong with a registry the NSA and/or Google probably has one already anyway.” Which is probably correct. The right is just as susceptible to the “buffet” theory of the bill of rights as the left. When people say infringing on one opens the door to infringing on all on them, well, that’s the conundrum for the GOP isn’t it.

      • Two party system is outdated. There are now more people in the middle than the extreme left or right. Neither party represents my views of less gun control, okay with gay marriage, fix the economy, the Government can not be the biggest employer in America, get those people off of government handouts (especially the criminals who receive welfare checks), less military spending ($800 billion a year is too much), less wasteful Government spending, and eliminate our debt. Which of the two parties want to do that?Neither.

        • Which is why I voted Libertarian in every election I’ve voted in, and I look forward to doing it again. In 2016, sadly.

  4. Is it disturbing to anyone else that the laws written in the books, for which we are responsible for following to the letter, are impossible to interpret until AFTER you’ve accidentally broken them and then have to see what a lawyer says? Why not just make it plain and simple english…clear as day with all provisions taken care of…these lawmakers are paid a lot of money…they could at least make it so the average joe can interpret it. For example, the 1995 School Zone act…it’s not exactly clear about what one can and can’t do…for example, I don’t live within 1000 feet of a school zone, but every path to and from my home is… I’ve been told by the town police that if i’m not on property i’m fine carrying…but what with the AG say? It should be black and white…

    • Taco Ninja,

      Early in our nation’s history, we used the basics of English Common Law and adhered to the most basic premise, “An it harm none, do what ye will”.

      In other words do anything you want (and be legal) as long as it doesn’t harm anyone. Want to paint your home orange? You are good to go. Want to have a rock garden? Have at it. Want to own a bazooka? That’s fine as long as you don’t shoot anyone with it.

      Somewhere along the way, “We the People” allowed the politicians, attorneys, and communists (is there any difference among them?) to conflate, complicate, and obfuscate our “laws” to the point that no one knows them all, everyone is guilty of something, and no one understands them. Even worse, the powers that be are now openly throwing away the most basic tenants of several hundred years of common law such as habeus corpus and due process.

      It is a sad time indeed. I am not sure what is necessary going forward.

  5. 1. Oiga amigos ! Oiga amigos ! Paco ! Enrique !

    2. Listen to the last words of Hassan Sabbah,

    3. The Old man of the Mountain !

    4. Listen to my last words, anywhere !

    5. Listen all you boards, governments, syndicates, nations of the world,

    6. And you, powers behind what filth deals consummated in what lavatory,

    7. To take what is not yours ,

    8. To sell out your sons forever ! To sell out the ground from unborn feet forever ?

    9. Listen to my last words any world ! Listen if you value the bodies for which you would sell all souls forever!

    10. What am I doing over here with the workers, the gooks, the apes, the dogs, the errand boys, the human animals ?

    11 . Why don’t I come over with the board, and drink coca-cola and make it ?

    12. “For God’s sake, do not let that Coca-Cola thing out !”

    13. Thing is right, Mr Whoever is responsible for that who done it !

    14. Explain how the blood, and bones, and brains of a hundred million more or less gooks went down the drain in green piss !

    15. So you on the boards could use bodies, and minds, and souls that were not yours, are not yours, and never will be yours.

    16. You want Hassan Sabbah to explain that ? To tidy that up !

    You have the wrong name and the wrong number !

    17. “Don’t let them see us, don’t tell them what we are doing ! ”

    18. Are these the words of the all powerful nations and syndicates of the earth ?

    19. “- Don’t let them see us, don’t tell them what we are doing!

    20. Not the cancer deal, not the green deal !

    21. Do not let that out !

    22. Disaster, disaster, unimaginable disaster !

    23. Don’t show them out, these things take time and that’s my business.”

    24. As usual, Mr Loose ! Short time to go. Minutes to go!

    Blue heavy metal people.

    25. “- Don’t let that out! Don’t show them the blues !”

    26. Are these the words of the all powerful boards and syndicates of the earth ?

    Show them the blues.

    27. Crab men ! Pick worms ! Intestinal parasites !

    28. Squeezing the air you did not shit it out and eat it again, forever !

    29. “Don’t let them see us ! Don’t tell them what we are doing !”

    30. Are these the words of the all powerful boards, syndicates, cartels of the earth ?

    31. The great banking families of the world

    32. French, English, American ?

    33. Like Burroughs, that proud American name ?

    34. Proud of what exactly ? Would you all like to see exactly what Burroughs has to be proud of ?

    35. Short time racket, heavy metal gimmick ?

    36. All right, Mister Burroughs, who bears my name and my words bear it all the way

    37. For all to see, in Times Square, in Picadilly,

    38. Play it all, play it all, play it all back !

    39. Pay it all, pay it all, pay it all back ! …

    40. Shall I show them the blues ?

    41. Now! Now! Now !

    42. “Premature ! Premature! Premature!”

    43. Time for what ? Premature for whom ?

    44. I say to all : these words are not premature . These words might be too late.

    45. Minutes to go. Minutes to go. Minutes to goo ; Minutes to green goo.

    46. “Top secret! For the Board – the Initiates..”

    47. Are these the words of the all powerful boards and syndicates of the earth ?

    48. These are the words of liars, and cowards, and collaborators and traitors,

    Liars who always want more time and more

    49. You stole to the sky what was not yours

    Poisoning the bodies and the souls forever ! Look ! Look ! Look !

    50. “Don’t let them see us ! Don’t tell them what we are doing !”

    51. Are these the words of the great nations, the all powerful boards and syndicates of the earth ?

    52. These are the names of liars, and cowards, and collaborators and traitors

    53. Collaborators with insect people,

    54. With any people anywhere who offers you a body forever, to shit forever.

    55. For this you have sold your sons forever,

    56. The ground under unborn feet forever !

    57. Traitors to all souls everywhere !

    58. You on the boards, who want others to pay for you,

    59. With your deals to take what is not yours !

    60. You on the board, who now say :

    61. “Protect us from our our gooks

    62. Protect us from our human animals.”

    63. Are these the words of the all powerful boards and syndicates of the earth ?

    64. And you want the name of Hassan Sabbah on your filth deals

    65. To sell out the unborn ?

    66. “Protect us from our gooks, our dogs, our human animals !”

    67. Are these the words of the all powerful boards, your powerful syndicates

    68. Your powerful governments and nations of the earth ?

    69. Liars ! Liars! Liars! Cowards! Cowards ! Cowards!

    70. Who cannot even face your own dogs !

    71. Traitors to all souls everywhere ! Sold out to shit forever :

    72. You, miserable collaborators,

    73. Now ask protection of Hassan Sabbah ?

    74. “Protect us from our gooks, our human animals ?”

    75. No, no, no, I will not protect you,

    76. And you will never use the name of Hassan Sabbah – William Burroughs to cover your green shit deals with crab-men.

    77. My words are for all,

    78 I repeat for all !

    79. No one is excluded !

    80. Free to all who pay , free to all who pay and pain for all to see , for all to see!

    81. In Picadilly, in Time Square, Place de la Concorde,

    82. In all the streets and plazas of the world !

    83. Pay, pay, pay !

    84. Play it all, play it all , play it all back !

    85. Pay it all, pay it all, pay it all back !

    86. See my writing the silent across all your skies,

    87. The silent writing of Brion Gysin – Hassan Sabbah.

    88. The silent writing of space, the writing of Hassan Sabbah

    89. All out of time ! All into space ! Forever !


    — William S. Burroughs

    • I’m pretty sure that means don’t take the deal. I’ll watch “Naked Lunch” again and let everyone know if I gain any insight.

    • I’m trying to get the inner meaning of your quote, W.B. Burroughs had been, at the point of writing Naked Lunch, already convicted of culpable homicide for shooting his common law wife in the head playing “William Tell” as a party game in Mexico City. He wrote Naked Lunch, his one notorious text, after “Junkie,” in Morocco living as a heroin addict, devoting much of his time to amusing himself with very poor boys who’d turned to gay prostitution. Does he somehow hold the key to firearms legislation? Could you be more explicit?

  6. M-T stinks. It is obtuse and abuseable, and I can’t stand the thought that Gottlieb supports it!

    I am sick to death of compromises that move us farther away from the second amendment. When is someone going to propose Pro-2nd law, the compromise to which moves us in the other direction?
    Let someone propose the immediate repeal of all Federal firearms laws, and then I might be willing to meet half-way with its opposition!

  7. Kopel brought me back to the side of sanity. I love Gottlieb, but I think he’s blinded by the fact that his team helped draft this thing. No more gun control regulations. None.

  8. We are a Regulation Nation, and now we are heaping even “more” regulations on a very straightforward easily interpreted Amendment.

    The anti’s aren’t going to get the warm fuzzies if this sell out legislation gets passed. Sadly when another loon falls through the cracks and another mass shooting occurs, this will start all over again, and we can expect “more” regulations up to include registration and subsequently,…..confiscation.

  9. I recommend some of the comments to Kopel’s post critiquing his use of the rules of statutory construction. This isn’t to say M-T is a good idea, or that, assuming something like M-T will pass the language shouldn’t be cleaned up, just that Kopel may be panicking a bit.

  10. 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?

    Kopel raises some interesting points — but the one above is utter nonsense and he knows it. He should look up an obscure part of the Constitution called The Supremacy Clause.

    • I think his argument is that M-T explicitly exempts crimes punishable by >1 year from the federal preemption, including simple possession, meaning there is no supremacy clause issue.

      I suppose one could argue there is a right to travel argument against Mass. bringing such a charge, anyone know if there is case law on that?

      • Brian, under M-T (as now written), interstate transpo as specified by the bill, without more such as transporting in furtherance of criminal conduct, would not be a crime, period. Any state law to the contrary would fail under the Supremacy Clause. Kopel is inventing a Catch-22 that does not exist.

        So if you want to cross MA (which already has a peaceable journey statute) with your locked-up gun to commit bank robbery, that would be a no-no. But if you’re just trying to pass through, you are not committing any crime even if you stop.

        • I saw in the comments the argument the argument that if a state criminalizes mere possession of a gun with a penalty exceeding one year it is possible that that could satisfy the “involving a firearm” requirement for removing FOPA protection and removing the supremacy clause issue. That may be what he is getting at.

          Whether that is a fair read of the bill is another question, but it does seem to be a possible ambiguity that can be fixed by more artful drafting.

    • He’s alluding that this could be the Lacey Act of gun control. Making it illegal (federally) to break any state firearm law, much like it’s currently illegal (federally) to break any international plant/wildlife law.

      • I don’t think M-T creates federal criminal liability for violating state gun law. Rather it could arguably (per Kopel) reduce the scope of the federal preemptive shield for certain conduct (traveling with a gun), making it easier for the state to bring charges. There does not seem to be a way for the feds to prosecute for a violation of state law as a separate federal offense.

  11. It’s so dumb that national reciprocity is controversial. It offends less than 10% of the states in the “union”.

  12. And the MT bill waives HIPAA, meaning that the government have access to all your medical records for the background check.

    As NYS shows, with the current SAFE Act, just having taken a certain kind of medication sends a flag to the NYS Troopers who appear to be trolling medical records (in violation of HIPAA), who then yanked pistol permits. Hopefully this will be revealed as a crime that will take down the governor if he authorized it.

    The MT bill, however, explicitly allows the federal government to legally do what NYS appears to be doing illegally.

  13. The deal sucks. We gain nothing but have to give up something.

    How about dropping all Class III restrictions ?
    How about allowing the private sales of handguns?
    How about nationally recognize Constitutional Carry?

    The Gun grabbers are giving up NOTHING.

    • This is an argument for engaging with the bill and striking a compromise that provides benefits for gun owners rather than just trying to defeat the bill as an all or nothing proposition. It will be easier for the House to take the core of M-T (background checks at gun shows), clean up the language and insert some “common sense” expansions of gun rights and then put it back on the Senate. Let the Senators explain why, when given a chance to close the “gun show loophole” they elected to instead do nothing.

      That said, it may be wiser to just try and prevent anything from passing, but to get something you have to negotiate.

  14. Dan Zimmerman, instead of taking out of it what David Kopel reads into or out of the bill, wouldn’t it be prudent to contact Gottlieb himself and ask him to go over line by line what he thinks it means. If in fact he helped write this, then ask him about any concerns or misconceptions you and many here are having with this bill.

    I really don’t care what Kopel or for that matter what anyone here “thinks” it says or does (no offense) I’d rather hear or read what Gottlieb says, and why he supports it.

    • Roger that! I keep telling myself the text had to have changed since he made those comments, I’d love to hear more from him.

  15. I don’t know if I’ve mentioned it, but I actually helped write the Bible. Yeah, I even fully endorsed the original version, right up until the House added in all that language about hellfire, virgins and stoning. So its kind of a compromise now, but its still better than nothing – I just hope the spirit of the document is understood and not violated or used against us.

  16. Hey they bend the HELL out of our laws now, This is a another go to JAIL CARD.. Called sell out Liberty for a little safety and may your CHAINS lay lightly on your sons as our founders said….. LESS CONTROLS = more freedom, more guns = less crime!

  17. The Daily Mail ran Gottlieb’s little gloating video, so the cat is out of the bag regarding what he said about tricking the Donkey. At this point it looks more like Gottlieb was trying to trick us gun owners. This law is nonsense.

  18. not really sure how appealing this “buying handguns out of state” thing is if it still means i have to abide by the regulations in my home state.

  19. I saw nothing in the bill providing for any sort of universal concealed carry. If anyone thinks that is in the bill, let me know.

  20. As those of you who follow know I travel from my home in NM to my job in Mass. several times each year. It seems this is a good thing for my wife and I , but any thoughts?……..and explain it to me slowly……this brother is approaching sixty!

  21. The fact of the matter is that these people are attempting to compromise away the second amendment and others, the rest of the Constitution and other rights.

    They are traitors and there really isn’t anything else to say about it.


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