Concerning the NRA Position on the Rand Paul Gun Amendment

BY Herschel Smith
3 years, 5 months ago

In what is uncustomary for an opinion and analysis journal like this one, I’m going to come out and flatly say that I don’t fully understand what’s going on behind the scenes.  Mitch McConnel (and other GOP senators) came out against Rand Paul’s amendment to the patriot act renewal.

Adding further confusion for me, the NRA weighed in against the amendment as well.  But expecting a clear outline of the reasoning process behind the NRA’s disagreement, I am treated to this bit of subterfuge.

As often happens with complex issues, NRA’s position on Sen. Rand Paul’s defeated PATRIOT Act amendment is being mis-reported by those who either don’t understand the facts, or prefer their own version of “facts.”

This amendment was rejected by 85 Senators, which included many of the strongest Second Amendment supporters in the U.S. Senate.  Unfortunately, Senator Paul chose not to approach us on this issue before moving ahead. His amendment, which only received 10 votes, was poorly drafted and could have resulted in more problems for gun owners than it attempted to fix. For this reason, the NRA did not take a position on the amendment.

To be more specific about the amendment and its problems, the amendment would have prohibited use of PATRIOT Act legal authority for any “investigation or procurement of firearms records which is not authorized under [the Gun Control Act].” There have been no reports of the current PATRIOT Act being abused with respect to firearms records, however supporters suggested a far-fetched scenario in which every firearms sales record in the country–tens or hundreds of millions of documents dating back to 1968–could be sought.  Again, we nor anyone else is aware of any case in which this authority has been used to abuse gun owners.  (In fact, published reports indicate that few of these orders are ever sought for any reason.)

In particular, the amendment appeared to be aimed at so-called “section 215 letters”–orders from the FBI requiring the disclosure of “tangible things” such as records and documents.

Under the current PATRIOT Act, an application for this type of order with respect to firearms sales records has to be approved no lower than the director or deputy director of the FBI, or the Executive Assistant Director for National Security.  The application is made to a federal judge based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”  The judge has the power to modify the order and must direct the use of “minimization procedures” to protect the privacy of Americans.

If the Paul amendment were adopted, the FBI would have used other ways to access whatever firearms records it might need for intelligence or anti-terrorism investigations. This is especially troublesome for gun owners.

This would result in United States Attorneys simply demanding the same records through grand jury subpoenas, which require no judicial approval before issuance. Fighting a subpoena after the fact can be very costly and carries legal risks of its own, including possible charges for obstruction of justice.

Even worse, the government would have used the Gun Control Act’s provision that allows the Attorney General to “inspect or examine the inventory and records of [a licensee] without … reasonable cause or warrant” during a criminal investigation.  That means by simply characterizing its activities as a “criminal investigation,” it would enter a licensee’s premises and demand these records without “reasonable cause or warrant”–in other words, without judicial oversight of any kind, and without any of the procedural limits imposed by the PATRIOT Act.

Therefore, given all of these potential problems for gun owners, the NRA could not support this poorly drafted amendment.

What?  Come again?  Can someone please try to remove the confusion and contradictions in Chris Cox’s statement for me?  This makes no sense to me.  I’m left to concur with Sean at SayUncle.  ”I’m scratching my head on a few points. Can someone give a high level play-by-play on this?”

What did Paul’s amendment do?  Why did Mitch McConnell disagree with it?  Why did the NRA demur?  Were the reasons compelling and persuasive?

  • Jared

    The NRA is playing party politics with statism, instead of what they should be doing, which is protecting our rights. First not supporting Heller, now this.

    The amendments simply restricted the ATF or any other government agency from acquiring firearms records without a warrant. Which is what the un-amended act allows them to do.

    Now anyone that wants to persecute you know for being a gun owner now has the legal avenue to do so. They can simply collect all the 4473′s, compile a list and subsequently hand them out to whomever they please.

    Beyond that, expect a nation wide gun owners registry sooner than later. We just lost the 4th amendment, now that’s going to cause us to lose what we have left of the 2nd.

    Our rights are being whittled away, just like the boiling frog story.


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This article is filed under the category(s) Firearms,Second Amendment and was published May 27th, 2011 by Herschel Smith.

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