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Posted: 1/25/2009 7:10:43 PM EDT
HR45 has been duped to hell.  Hopefully the posting of this response has not been...


Violations of Logic

In a somewhat standard political maneuver, sections of the HR 45 are clearly an emotional appeal to the American people and their representatives. First, statistics regarding the use of firearms in homicides, suicides, and non-fatal violent injuries are pointed out. Second, the stated purpose of the bill is "to protect the public against the unreasonable risk of injury and death associated with the unrecorded sale or transfer of qualifying firearms to criminals . . . to restrict the availability of qualifying firearms to criminals . . . to facilitate the tracing of qualifying firearms used in crime . . ." What the author of the bill fails to point to is the staggering amount of research that suggests that gun control laws do not reduce gun crime and may even be linked to an increase in such crime. The National Center for Policy Analysis (NCPA) is a non-profit, non-partisan group dedicated to research on public policy. The findings of this group on gun control are clear: Gun control laws are ineffective in reducing violent crime. Two reasons for this ineffectiveness are often cited by gun rights activists. First, crime is committed by criminals who, by definition, are not concerned with adhering to the law when obtaining a firearm. Second, when crime victims are law abiding citizens, they will not have a firearm to be used in self-defense; essentially, leaving the law abiding victim a sitting duck for the gun wielding criminal.

The second assault on the emotions comes with the story of Blair Holt for whom this bill is named. This young man acted with a heroism seldom seen among adults, much less 16-year-old boys and was shot while bodily protecting a classmate from a shooter who had boarded the public bus the students were riding on. This young man should certainly be memorialized for his actions, but not by attaching his name to a piece of legislation that is not likely to reduce gun crime. Again, criminals do not care about the legality of their tools.

Finally, part of the stated purpose of HR 45 is "to facilitate the tracing of qualifying firearms used in crime by Federal and State law enforcement agencies." As stated above, criminals are not likely to be using firearms obtained through legal channels, making this statement somewhat laughable. Second, HR 45 does nothing to protect law abiding citizens from law enforcement agencies invading their privacy using the information gathered under HR 45.

Violations of Individual Rights

HR 45 threatens individual rights, including those protected by the Second, Fourth, Fifth, and Fourteenth Amendments. In addition, it proposes amendments that remove logical protections that currently exist in the United States Code.

The fourth amendment protects individuals against searches unless there is evidence that such search will find evidence of a crime, in such cases a judge will issue a search warrant. The only exceptions to this are if an individual consents to the search, if there is a crime in progress or about to occur, subsequent to a legitimate arrest, or in extreme conditions where quick action is required to assist an injured person or apprehend a dangerous person. HR 45 clearly violates this amendment by giving the Attorney General the right to "enter any place where firearms or firearm products are manufactured, stored, or held for distribution in commerce and inspect those areas where the products are manufactured, stored, or held".

A CDC training document provides a clear description of the constitutional guidelines for seizing private property:

There are clear constitutional guidelines for seizing private property. If the property is seized and destroyed to protect the public health and safety, then the constitution does not require the government to pay compensation for the property. The owner of the property is entitled to a hearing to determine if the seizure was lawful, but this hearing may be provided after the property has been seized and destroyed. If the seizure was unlawful, the government must pay compensation.

Under HR 45, an individual who owns a firearm prior to the time that HR 45 is enacted has 2 years to become licensed. If that individual were to fail to become licensed, they would face the choice of giving up their private property or becoming a criminal. In my mind, this amounts to the government forcing an individual to dispose of private property and amounts to seizure by proxy. If a law abiding citizen is in possession of a firearm and is not a threat to the public, then such seizure is unconstitutional.

Similarly, HR 45 allows the Attorney General to "prohibit the sale or transfer of any firearm that is found to be transferred or distributed in violation of HR 45, an amendment to HR 45, or a regulation issued under HR 45." So, if an individual legally purchases a firearm and it later comes out that said firearm was at one time in violation of HR 45, then that person is prevented from selling their personal property. The Fifth and Fourteenth Amendment s protect the right to property and, traditionally, property rights have included the right to transfer property of other individuals. HR 45 interferes with that right by prohibiting an individual from transferring their personal property, in this case a firearm, because it was used for illegal purposes before coming into their possession.

When the Brady Bill was enacted in 1993, it specifically included language prohibiting the creation of a gun registration database. This language was codified into law as part of section 926(a) of title 18, United States Code. The logic behind this language is succinctly described on the Keep and Bear Arms website:

The rationale was that if John Doe were cleared during the background check to purchase a firearm, that was what was important, and the government did not need to keep a list of who owned what. That information would still be recorded in the usual manner in the dealer's records, so it was available if a gun was found at a crime scene, because the manufacturer's serial number would trace it through all levels of sale until it wound up at the dealer's, and upon checking the dealer's records, the individual who purchased the gun could be identified. Thus, the government would have the ability to trace firearms to their owner, yet would not be able to assemble a hit list' of gun owners in general to go after . . .

HR 45 requires the Attorney General to establish and maintain a database of information that includes the name, address, and firearm license number of any individual receiving a firearm. In addition, this database must include the manufacturer, model, serial number, and date of receipt of the firearms received by each individual. As it is so clearly described above, this information is not necessary to trace firearms used in crimes. It is only necessary to create "hit lists" of the individuals who own certain numbers or types of firearms. Perhaps this sound paranoid; unfortunately, it is not. Keep and Bear Arms notes that:

since the [Brady Bill] passed, several states have retroactively banned classes of firearms (without even presenting any evidence to support a need to do so for any public good), and confiscated them based on registration lists. Additionally, the federal government, in blatant defiance of the Brady law's clause requiring immediate erasure of their information once the sale is approved (again, the dealer retains the information, should a legitimate need arise for it at any later date), has been openly admitting that they have created a computerized registry of gun owners.

Violations of State's Rights

The term "State's Rights" refers to those areas that are the right of the individual States to legislate. Essentially, any area not specifically addressed in the Constitution is assumed to be left to the discretion of the states. HR 45 violates these rights in several areas.

HR 45 states that the manufacture, distribution, and importation of firearms is inherently commercial in nature and that this commerce regularly takes place across State boundaries, making it a type of interstate commerce. The bill goes on to say that the impracticality of separating which firearms are destined for interstate commerce and which are destined for intrastate commerce will result in the "incidental regulation of intrastate commerce". I agree that the manufacture, distribution, and importation of firearms (or any other product) is commercial in nature and that this commerce often results in firearms crossing State lines. I believe that the final assertion that it is impossible to separate interstate and intrastate commerce is nothing more than a poorly veiled excuse for violating State's rights. While the same firearm may be involved in an interstate transaction at one time and in an intrastate transaction at another time, this does not mean that it is impossible to separate the two. Anyone transferring ownership of a firearm to another entity is required to know who they are transferring ownership to. As a result, it is actually quite easy to determine whether a transaction is intrastate and subject to State regulation or interstate and subject to Federal regulation.

The bill's author goes on to say that Federal gun control laws are "in the national interest" and "within the role of the Federal Government". First, I have difficulty understanding how it is in the national interest to pass legislation is at best ineffective and at worst detrimental to public safety (see NCPA findings cited above). Second, the claim that it is "within the role of Federal Government" to impose gun control legislation on the States is also inaccurate. In 1995, the Supreme Court ruled that there was not a substantial enough link between gun control and interstate commerce to give the Federal government the right to legislate gun control on a national level. Furthermore, the decision also noted that the definition of interstate commerce that the Federal Government was using in this case constituted a "blank check" for Federal legislation in areas historically under state control (see the full text of this decision). Later in the text of HR 45, the author states that State firearm licensing laws will only be valid if they meet or exceed the requirements put forth under HR 45, a clear violation of the Supreme Court ruling described above.

Violations of Separation of Powers

A final class of violation is the violation of the sole right of the Legislative Branch to make laws. In HR 45, there are sections that allow the Attorney General (a member of the Judicial Branch) to determine the topics that will be included on an examination that is required for obtaining a firearms license and to create licensing regulations under HR 45. In addition, HR 45 also prohibits ownership of a firearm without such a license. Thus, HR 45 provides the Attorney General with the power to determine who will and will not be legally permitted to own a firearm, effectively creating legislation in this area.

Violation of Expectations

There is one part of HR 45 that is a reasonable use of government power and I would be remiss if I failed to mention this. In addition to keeping firearms out of the hands of criminals, this bill has the purpose of keeping firearms out of the hands of youth and includes sections regarding to the secure storage of firearms where there is the reasonable expectation that a child might be on the premises where the firearm is stored. I grew up in a house where guns were a part of life; however, these guns were stored unloaded and, to this day, I cannot tell you where the ammunition was stored. In an ideal world, all adults would be as wise as my parents without government interference; however, the fact is that many adults are not. I believe that the role of Federal government should be limited to protecting the people. Legislation that requires the secure storage of firearms so that children cannot access them falls well within the boundaries of this protection; however, this bit of reason does not make HR 45 a viable or Constitutional piece of legislation.

While HR 45 may have been conceived with the best of intentions, this legislation is fundamentally flawed on several levels. First, it violates logic by attempting to fix a problem with methods that have been historically ineffective and even counterproductive. Second, it violates individual and State's rights. Third, it violates the separation of powers between the various branches of government.
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