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There’s been a lot of controversy the last few days over a deal reached between Senators Joe Manchin (D-WV) and Pat Toomey (R-PA) on an amendment to pending gun-control legislation in the Senate. It’s expected to be introduced tomorrow and it appears they have the votes to end debate and proceed to a vote on the amendment.
Senator Toomey has tried to sell this bill as a strengthening of 2nd Amendment protections: for example, in this conference call that included PJ Media’s Scott Ott. The Washington Times reported on the words of a gun-rights advocate how, in crafting Toomey-Manchin, they “snookered” the gun-control crowd.
The text of the amendment can be found at Senator Toomey’s site. I read it myself over the weekend; while it seemed acceptable on the surface, I still had qualms. Not being a lawyer, I had a feeling that I was missing subtleties or quirks in the amendment that would indicate serious problems.
Turns out I was right to be cautious. From David Kopel at the Volokh Conspiracy:
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.
And you can bet that, if one lawyer reading the bill sees this angle, so will others in the administration of a more gun-grabby bent.
There is much more, and I urge you to read it all. While I’m sure there are criticisms to be made of Mr. Kopel’s reasoning, it seems solid enough that I’ve come to the conclusion that this amendment, while well-intentioned, is a poorly drafted measure that leaves far too many openings for the restriction of our Second Amendment rights.
RELATED: Confiscation is already happening in New York. This bears directly on the mental health provisions of the Manchin-Toomey amendment.
(Crossposted at Public Secrets)