The “Pro-Gun” provisions of Manchin-Toomey are actually a bonanza of gun control

by Dave Kopel

The Toomey-Manchin Amendment which may be offered as soon as Tuesday to Senator Reid's gun control bill are billed as a "compromise" which contain a variety of provisions for gun control, and other provisions to enhance gun rights. Some of the latter, however, are not what they seem. They are badly miswritten, and are in fact major advancements for gun control. In particular:

1. The provision which claims to outlaw national gun registration in fact authorizes a national gun registry.

2. The provision which is supposed to strengthen existing federal law protecting the interstate transportation of personal firearms in fact cripples that protection.

Let's start with registration. Here's the Machin-Toomey text.

(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.".

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.

The Attorney General may not create a registry from the records of "a person with a valid, current license under this chapter." In other words, the AG may not harvest the records of persons who currently hold a Federal Firearms License (FFL). 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.

Click here to read the entire op-ed at The Volokh Conspiracy.

Additional Information:
Gun control bill in peril

The tough gun-control bill that President Barack Obama wants now has little, if any, chance of passing this Congress – it's struggling in the Senate and facing outright rejection in the House.

...A defeat would mean that in just five months after the Sandy Hook Elementary School shootings, the best chance for new gun controls in 20 years is slipping away.

The reasons are many:

The National Rifle Association hasn't budged, and it warned supporters of the compromise Senate bill — authored by Sens. Joe Manchin (D-W. Va.) and Pat Toomey (R-Pa.) — that the group would remember their vote when they are next up for reelection.

Speaker John Boehner's House Republican Conference is turned off by back-room deals and many House Republicans come from the South and the Mountain West, where gun ownership is a way of life.

And moderate red state Democrats, and reluctant conservatives and couldn't be persuaded to support even a bipartisan bill that falls far short of what gun control activists wanted.

...And it shows the limits of Obama's power — he campaigned in Connecticut, and Colorado to urge Congress to give the victims of Newtown a vote.

This bipartisan proposal, which expands background checks and closes the controversial "gun show" loophole, is gaining nearly no steam in the House, and in the Senate, it's no better.

Senate Democratic leadership considered pushing back the vote to Thursday or later. Manchin and Toomey said Monday evening that they were short of the votes they needed.