Of the current members of the Senate Judiciary Committee who were in the Senate in 1986, only Kennedy voted against passage of FOPA. Senators Biden, Leahy, Hatch, Thurmond, Grassely, and Specter all voted for it, and hence for the registration ban.
In addition, the annual appropriation for the Department of the Treasury (which controls the Bureau of Alcohol, Tobacco and Firearms) always contains a ban on spending any funds for creation of a federal gun registry.
Quite plainly, all this means that (1) records aren't supposed to be kept on legal purchases of firearms, and (2) it's illegal to establish a national gun registration system. This was underscored in the recent case of RSM v. Buckles, 254 F.3d 61 (4th Cir., 2001), where the federal Court of Appeals pointed out that the government's power to scrutinize gun records was limited, and that a national gun-registration system — even one established through "backdoor efforts" — was illegal.
Even so, when preparing to implement the National Instant Check System, then-Attorney General Reno announced that the government would keep records on lawful gun purchasers for 180 days. The stated purpose of these records was to audit NICS, to make sure it wasn't being misused (e.g., to ensure that gun dealers were not requesting instant checks on people who were not their customers — for example, in case a gun-store owner started requesting background checks on his daughter's boyfriends).
The NRA sued, arguing that by saying the records had to be destroyed, Congress did not mean they should be destroyed "eventually, when the Attorney General gets around to it." The District of Columbia Court of Appeals, in a 2-1 decision, upheld the 180-day record retention. The majority opinion, written by a Clinton appointee, claimed that federal law "does not prohibit all forms of registration." The Clinton majority also asserted that because Congress did not say the records had to be destroyed "immediately," the records could be destroyed sooner — or later.
Dissenting, Judge David B. Sentelle, a Reagan appointee, retorted that Congress had been perfectly clear. "The Attorney General's position," wrote Sentelle, "strikes me as reminiscent of a petulant child pulling her sister's hair. Her mother tells her, 'Don't pull the baby's hair.' The child says, 'All right, Mama,' but again pulls the infant's hair. Her defense is, 'Mama, you didn't say I had to stop right now.'"
The Senate responded to Reno's machinations by restating its 1993 intent. In 1998, Senator Bob Smith (R., N.H.) proposed a rider to an appropriations bill to mandate immediate records destruction. The Senate approved the Smith Amendment, 69 to 31, thanks in part to the support of Senators Daschle, Leahy, and Murray. Later, a conference committee stripped the Smith Amendment, as well as some other non-appropriations riders, from the appropriation bill.
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