Update: The full text of the Toomey / Manchin bill is now available (here). Most of this analysis remains consistent with the full text, although further analysis will be required.
On Wednesday Pennsylvania Republican Senator Pat Toomey and Joe Manchin a Democratic Senator from West Virginia announced alternative gun restriction legislation to counter the gun restriction bill introduced by Harry Reid, the U.S. Senate Majority Leader. Senators Toomey and Manchin published copies of the same summary of their bill on each of their official Senate web sites. However, neither Senator published the actual text of their bill, anywhere, to anyone! Until Americans have an opportunity to read the actual contents of the Toomey / Manchin gun legislation proposal, how are voters supposed to develop truly informed opinions about it?
While the anti-gun biased mass media is spouting platitudes about so called universal gun purchase background checks, the truth is that the details of many of the bills introduced and published so far, go way beyond additional gun purchase background checks, to criminalization of currently law abiding citizens and bizarre scenarios like the gun consignment process that forms the core of Senator Harry Reid’s onerous S. 649 gun restriction bill.
For the moment, consider just the summary of the Toomey / Manchin proposal, since they have failed to publish the actual text of their bill. The summary of their bill includes a long list of provisions, many of which cover aspects of federal firearms law other than gun purchase background checks. What follows is consideration of each of the items in the Toomey / Manchin bill summary they’ve published, with the discussion of each summary provision on its merits. Despite the overall condemnation of the Toomey / Manchin proposal by many gun rights activists, the summary at least, contains some valid and viable provisions that Congress may want to consider and enact. The Toomey / Manchin bill summary has two sections. The first section, or title, has four (4) provisions. The Second section, or title, has eleven (11) provisions.
The first proposal in the Toomey / Manchin summary requires states to provide complete data about gun purchase prohibiting events to the FBI NICS database such as: convictions for felony and domestic violence crimes; criminal adjudications of not guilty by reason of insanity; court adjudications of mental incompetence; and records of involuntary psychiatric commitments. Under the proposal, the federal government would restrict funds to states that don’t comply. This provision appears in nearly every gun legislation bill introduced in the current Congress thus far. This provision appears to be one that will likely be enacted by Congress, as a way to improve the quality and accuracy of the NICS background check system.
The second proposal in the Toomey / Manchin summary allows Federal Firearms License (FFL) dealers to voluntarily use the FBI NICS database to run background checks on their prospective employees. The biggest question is why FFL dealers seem to be prohibited from doing so under current federal law. The relevant federal statutes are 18 USC § 921 through 18 USC § 929. Further research would be required to determine precisely how much FFL dealers are currently restricted, such that this proposal is necessary. Since the federal firearms statutes probably do contain such restrictions, this aspect of the Toomey / Manchin proposal seems valid and helpful.
The third proposal in the Toomey / Manchin summary is one that gets into controversial territory. Its states that the bill:
“Clarifies that submissions of mental health records into the NICS system are not prohibited by federal privacy laws (HIPAA).”
Given that the mass media and Congressional politicians constantly use the misnomer, “prevent the mentally ill from getting guns”, there is a basis to assume that it is just as poor a choice of words as those used by the mass media and by many politicians themselves. Federal firearms law DOES NOT prohibit “mentally ill” people in general from purchasing, owning, or possessing firearms! The relevant federal statute paragraphs 18 USC § 922(d)(4) and 18 USC § 922(g)(4) explicitly state that only someone who:
“has been adjudicated as a mental defective or has been committed to any mental institution;”
is prohibited from purchasing, owning, or possessing firearms. Having been diagnosed with a mental illness or disease codified in the Psychiatric Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) does not by itself revoke a person’s firearm rights under federal law. However, there are states whose statutes do currently include such provisions, such as New York and Hawaii. The principle embodied federal law, and in most state law, is that there must have been judicial due process in a court of law before a person’s firearm rights can be revoked, because the fifth amendment to the U.S. Constitution provides that a person may not be deprived of life, liberty, or property without due process. In this case, the revocation of of someone’s firearm rights is a constitutional deprivation of their liberty under the fifth amendment. Isn’t it interesting that the fifth amendment and the second amendment are associated in this manner?
So, the third proposal in the Toomey / Manchin bill summary may just be poorly written, with the intent that court adjudications of mental incompetence, pleas of not guilty by reason of insanity, or record of an involuntary commitment are not violation physician / patient privacy under the federal HIPAA medical privacy statute. Most states provide a court adjudication and hearing process that preserves constitutional rights before an involuntary commitment court order is issued and recorded.
However, there has been some hysteria created over this item in the Toomey / Manchin bill summary, over the likely incorrect summary that general psychiatric and psychological medical records would be summarily disclosed to the FBI / NICS database as a basis for denial of firearms purchase eligibility. It doesn’t seem likely that is what the bill authors intended, but that cannot be determined until its authors publish the complete text of their bill. An example of this extreme level of concern about this provision as described in the bill summary is expressed in the article at this link, whose headline states,"The Toomey-Manchin Proposal Will Allow Doctors to Block Your Right to Guns".
The fourth proposal in the Toomey / Manchin summary provides veterans an appeal process to contest submission of their names to the FBI NICS database, to contest such a submission and to determine the basis for such a submission. It is hard to imagine why anyone would be adverse to the enactment of this provision.
The first proposal of the bill’s second title says that it attempts to close the “gun show loophole” and other “loopholes” in gun transfer transaction law, while creating exemptions for family members. This is where the details of the bill’s actual language will be extremely important. For example, Harry Reid says the same thing publicly, but the language of his bill S. 649, creates a kind of consignment process that requires a gun seller to physically turn over the gun to a gun retailer as part of the sales process. Such a consignment process has onerous implications in many states. In many states a gun retailer is required by state law to have any guns it acquires background checked by local and state police. In other words, when submitted to an FFL dealer the gun itself goes through a background check in some jurisdictions, which in some jurisdictions involves expensive police ballistics testing and so on to determine whether or not it has ever been used in a crime, before the licensed gun dealer is then allowed by law to transfer it out of their inventory. The point is that the provisions in Harry Reid’s S. 649 would lead to far more than additional NICS background checks. Until the actual language of the Toomey / Manchin bill is made public, there isn’t any way to determine how their bill would implement background checks for sales/transfers of privately owned firearms. It will be necessary to wait until the Toomey / Manchin bill is published to assess this aspect of their proposal.
The second proposal in the bill’s second title might actually be a welcome benefit for gun owners. It claims the bill would fix law that govern interstate travel with a firearm. This is extremely important, since the state of New York has been trying to prosecute people whose planes connect through New York State airports, carrying guns in checked luggage that haven’t been licensed in New York. Such behavior by New York authorities is obviously ridiculous. The Toomey / Manchin seems to be an attempt to stop that sort of nonsense by New York law enforcement officials.
The third proposal in the Toomey / Manchin bill’s second title might also be welcome and helpful to American gun owners. Under this provision, any private gun seller who gets a NICS background check of the gun’s buyer, or sells to a buyer who holds a concealed carry permit / concealed pistol license, would be immune from lawsuits against the seller if the gun were ever used in a crime after the sale of it. Such a provision seems like a good one, and one that Congress should enact.
The next proposal in the Toomey / Manchin bill’s second title would enabled license gun dealers to perform gun sales transactions in state outside their state of residence. This is another provision that ought to be welcome, both to gun owners and license gun retailers. This would enable people to attend events like the famous Las Vegas Shot Show and make firearms purchases there regardless of licensed retailer’s or the individual buyer’s state of residence.
The next proposal in the Toomey / Manchin bill’s second title would attempt to insure that gun sales at gun shows receive priority from the NICS background check system so that they can be complete as quickly as the system name implies. This too seems like a good proposal, so long as the bill’s language reflects the intentions implied by the summary.
The next proposal in the Toomey / Manchin bill’s second title would allow holders of state issued – concealed carry permit / concealed pistol license – to purchase firearms from a licensed gun retailer without waiting for additional NICS background checks. This is another quite welcome proposal. By definition, every state - concealed carry permit / concealed pistol license – process involves extensive background checking using fingerprints in addition to description identification information. Once that is completed for a given individual, redundant NICS checks seem like wasteful. This provision would be helpful to such license holders in jurisdictions like Washingotn State were the number of concealed pistol license holders exceed 400,000! Let’s hope Congress enacts this provision, regardless of the outcome of the Senate floor debates on the various gun legislation bills.
The next proposal in the Toomey / Manchin bill’s second title would allow interstate handgun sales. This is another great provision. With current internet technology manufacturers of rifles nationwide advertise and sell their firearms nationally. A buyer pays for the rifle on the web site, designates a local FFL gun retailer who will perform the transfer to the buyer, and the manufacturer ships the rifle to the retailer who performs the FBI NICS check on the buyer and collects a “transfer” fee. In most cases the “transfer” fees are between $25.00 and $50.00. There are even small FFL gun retailers who specialize almost entirely in processing transfers, rather than maintaining their own inventory. Expansion of the interstate firearms transfer system to handguns would likely provide a welcome boost to the firearms industry. There isn’t any logical reason that handguns are currently treated differently from rifles and other long guns.
The next proposal in the Toomey / Manchin bill’s second title would enable active military to purchase firearms both in their home states and in the state where they are on active duty. Why this isn’t currently possible is a mystery, but this bill would write it explicitly into the federal statutes so that military personnel would no longer be restricted as they are currently.
The next proposal in the Toomey / Manchin bill’s second title would exempt family transfers and a limited set of other transfers from FBI NICS background checks. This too is a welcome provision. However, only the details of the bills language can determine whether or not its authors have created it in a welcome and workable way.
The last proposal in the Toomey / Manchin bill’s second title appears to be an attempt to insure that firearms sales records are not misused, or used to create privacy violating databases, by creating a federal felony with a fifteen (15) prison term penalty for doing so.
While there has been a lot of animosity expressed by many gun rights supporters about the Toomey / Manchin proposal, including groups such as the NRA, with the exception of questions about the issue of medical records, it may be possible that their bill would be an acceptable improvement to federal firearms sales laws. It will only be possible to make a final assement of the bill once Toomey / Manchin bill actually publish it. Why Toomey and Manchin have yet to publish the complete text of their gun legislation bill has to be the most urgent question in gun politics at the moment. Only time will tell, and only the actual text of their bill will determine if it is one that would be beneficial to America, and specifically to American gun owners. Let’s hope Toomey and Manchin get their bill published soon before people get apoplectic waiting for them to do so.
Pat Toomey - Summary of Toomey / Manchin Gun Legislation Proposal
http://www.toomey.senate.gov/?p=press_release&id=965
Harry Reid's Gun Legislation Proposal - Senate Bill S. 649
http://afirearmrightschronicle.blogspot.com/2013/03/s649.html
Full Text of Toomey / Manchin Gun Legislation Bill
http://afirearmrightschronicle.blogspot.com/2013/04/toomey-manchin-senate-gun-legislation.html
On Wednesday Pennsylvania Republican Senator Pat Toomey and Joe Manchin a Democratic Senator from West Virginia announced alternative gun restriction legislation to counter the gun restriction bill introduced by Harry Reid, the U.S. Senate Majority Leader. Senators Toomey and Manchin published copies of the same summary of their bill on each of their official Senate web sites. However, neither Senator published the actual text of their bill, anywhere, to anyone! Until Americans have an opportunity to read the actual contents of the Toomey / Manchin gun legislation proposal, how are voters supposed to develop truly informed opinions about it?
 |
| U.S. Senator Pat Toomey (R - PA) |
For the moment, consider just the summary of the Toomey / Manchin proposal, since they have failed to publish the actual text of their bill. The summary of their bill includes a long list of provisions, many of which cover aspects of federal firearms law other than gun purchase background checks. What follows is consideration of each of the items in the Toomey / Manchin bill summary they’ve published, with the discussion of each summary provision on its merits. Despite the overall condemnation of the Toomey / Manchin proposal by many gun rights activists, the summary at least, contains some valid and viable provisions that Congress may want to consider and enact. The Toomey / Manchin bill summary has two sections. The first section, or title, has four (4) provisions. The Second section, or title, has eleven (11) provisions.
The first proposal in the Toomey / Manchin summary requires states to provide complete data about gun purchase prohibiting events to the FBI NICS database such as: convictions for felony and domestic violence crimes; criminal adjudications of not guilty by reason of insanity; court adjudications of mental incompetence; and records of involuntary psychiatric commitments. Under the proposal, the federal government would restrict funds to states that don’t comply. This provision appears in nearly every gun legislation bill introduced in the current Congress thus far. This provision appears to be one that will likely be enacted by Congress, as a way to improve the quality and accuracy of the NICS background check system.
The second proposal in the Toomey / Manchin summary allows Federal Firearms License (FFL) dealers to voluntarily use the FBI NICS database to run background checks on their prospective employees. The biggest question is why FFL dealers seem to be prohibited from doing so under current federal law. The relevant federal statutes are 18 USC § 921 through 18 USC § 929. Further research would be required to determine precisely how much FFL dealers are currently restricted, such that this proposal is necessary. Since the federal firearms statutes probably do contain such restrictions, this aspect of the Toomey / Manchin proposal seems valid and helpful.
The third proposal in the Toomey / Manchin summary is one that gets into controversial territory. Its states that the bill:
“Clarifies that submissions of mental health records into the NICS system are not prohibited by federal privacy laws (HIPAA).”
Given that the mass media and Congressional politicians constantly use the misnomer, “prevent the mentally ill from getting guns”, there is a basis to assume that it is just as poor a choice of words as those used by the mass media and by many politicians themselves. Federal firearms law DOES NOT prohibit “mentally ill” people in general from purchasing, owning, or possessing firearms! The relevant federal statute paragraphs 18 USC § 922(d)(4) and 18 USC § 922(g)(4) explicitly state that only someone who:
“has been adjudicated as a mental defective or has been committed to any mental institution;”
is prohibited from purchasing, owning, or possessing firearms. Having been diagnosed with a mental illness or disease codified in the Psychiatric Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) does not by itself revoke a person’s firearm rights under federal law. However, there are states whose statutes do currently include such provisions, such as New York and Hawaii. The principle embodied federal law, and in most state law, is that there must have been judicial due process in a court of law before a person’s firearm rights can be revoked, because the fifth amendment to the U.S. Constitution provides that a person may not be deprived of life, liberty, or property without due process. In this case, the revocation of of someone’s firearm rights is a constitutional deprivation of their liberty under the fifth amendment. Isn’t it interesting that the fifth amendment and the second amendment are associated in this manner?
 |
| U.S. Senator Joe Manchin (D - WV) |
However, there has been some hysteria created over this item in the Toomey / Manchin bill summary, over the likely incorrect summary that general psychiatric and psychological medical records would be summarily disclosed to the FBI / NICS database as a basis for denial of firearms purchase eligibility. It doesn’t seem likely that is what the bill authors intended, but that cannot be determined until its authors publish the complete text of their bill. An example of this extreme level of concern about this provision as described in the bill summary is expressed in the article at this link, whose headline states,"The Toomey-Manchin Proposal Will Allow Doctors to Block Your Right to Guns".
The fourth proposal in the Toomey / Manchin summary provides veterans an appeal process to contest submission of their names to the FBI NICS database, to contest such a submission and to determine the basis for such a submission. It is hard to imagine why anyone would be adverse to the enactment of this provision.
The first proposal of the bill’s second title says that it attempts to close the “gun show loophole” and other “loopholes” in gun transfer transaction law, while creating exemptions for family members. This is where the details of the bill’s actual language will be extremely important. For example, Harry Reid says the same thing publicly, but the language of his bill S. 649, creates a kind of consignment process that requires a gun seller to physically turn over the gun to a gun retailer as part of the sales process. Such a consignment process has onerous implications in many states. In many states a gun retailer is required by state law to have any guns it acquires background checked by local and state police. In other words, when submitted to an FFL dealer the gun itself goes through a background check in some jurisdictions, which in some jurisdictions involves expensive police ballistics testing and so on to determine whether or not it has ever been used in a crime, before the licensed gun dealer is then allowed by law to transfer it out of their inventory. The point is that the provisions in Harry Reid’s S. 649 would lead to far more than additional NICS background checks. Until the actual language of the Toomey / Manchin bill is made public, there isn’t any way to determine how their bill would implement background checks for sales/transfers of privately owned firearms. It will be necessary to wait until the Toomey / Manchin bill is published to assess this aspect of their proposal.
The second proposal in the bill’s second title might actually be a welcome benefit for gun owners. It claims the bill would fix law that govern interstate travel with a firearm. This is extremely important, since the state of New York has been trying to prosecute people whose planes connect through New York State airports, carrying guns in checked luggage that haven’t been licensed in New York. Such behavior by New York authorities is obviously ridiculous. The Toomey / Manchin seems to be an attempt to stop that sort of nonsense by New York law enforcement officials.
The third proposal in the Toomey / Manchin bill’s second title might also be welcome and helpful to American gun owners. Under this provision, any private gun seller who gets a NICS background check of the gun’s buyer, or sells to a buyer who holds a concealed carry permit / concealed pistol license, would be immune from lawsuits against the seller if the gun were ever used in a crime after the sale of it. Such a provision seems like a good one, and one that Congress should enact.
The next proposal in the Toomey / Manchin bill’s second title would enabled license gun dealers to perform gun sales transactions in state outside their state of residence. This is another provision that ought to be welcome, both to gun owners and license gun retailers. This would enable people to attend events like the famous Las Vegas Shot Show and make firearms purchases there regardless of licensed retailer’s or the individual buyer’s state of residence.
The next proposal in the Toomey / Manchin bill’s second title would attempt to insure that gun sales at gun shows receive priority from the NICS background check system so that they can be complete as quickly as the system name implies. This too seems like a good proposal, so long as the bill’s language reflects the intentions implied by the summary.
The next proposal in the Toomey / Manchin bill’s second title would allow holders of state issued – concealed carry permit / concealed pistol license – to purchase firearms from a licensed gun retailer without waiting for additional NICS background checks. This is another quite welcome proposal. By definition, every state - concealed carry permit / concealed pistol license – process involves extensive background checking using fingerprints in addition to description identification information. Once that is completed for a given individual, redundant NICS checks seem like wasteful. This provision would be helpful to such license holders in jurisdictions like Washingotn State were the number of concealed pistol license holders exceed 400,000! Let’s hope Congress enacts this provision, regardless of the outcome of the Senate floor debates on the various gun legislation bills.
The next proposal in the Toomey / Manchin bill’s second title would allow interstate handgun sales. This is another great provision. With current internet technology manufacturers of rifles nationwide advertise and sell their firearms nationally. A buyer pays for the rifle on the web site, designates a local FFL gun retailer who will perform the transfer to the buyer, and the manufacturer ships the rifle to the retailer who performs the FBI NICS check on the buyer and collects a “transfer” fee. In most cases the “transfer” fees are between $25.00 and $50.00. There are even small FFL gun retailers who specialize almost entirely in processing transfers, rather than maintaining their own inventory. Expansion of the interstate firearms transfer system to handguns would likely provide a welcome boost to the firearms industry. There isn’t any logical reason that handguns are currently treated differently from rifles and other long guns.
The next proposal in the Toomey / Manchin bill’s second title would enable active military to purchase firearms both in their home states and in the state where they are on active duty. Why this isn’t currently possible is a mystery, but this bill would write it explicitly into the federal statutes so that military personnel would no longer be restricted as they are currently.
The next proposal in the Toomey / Manchin bill’s second title would exempt family transfers and a limited set of other transfers from FBI NICS background checks. This too is a welcome provision. However, only the details of the bills language can determine whether or not its authors have created it in a welcome and workable way.
The last proposal in the Toomey / Manchin bill’s second title appears to be an attempt to insure that firearms sales records are not misused, or used to create privacy violating databases, by creating a federal felony with a fifteen (15) prison term penalty for doing so.
While there has been a lot of animosity expressed by many gun rights supporters about the Toomey / Manchin proposal, including groups such as the NRA, with the exception of questions about the issue of medical records, it may be possible that their bill would be an acceptable improvement to federal firearms sales laws. It will only be possible to make a final assement of the bill once Toomey / Manchin bill actually publish it. Why Toomey and Manchin have yet to publish the complete text of their gun legislation bill has to be the most urgent question in gun politics at the moment. Only time will tell, and only the actual text of their bill will determine if it is one that would be beneficial to America, and specifically to American gun owners. Let’s hope Toomey and Manchin get their bill published soon before people get apoplectic waiting for them to do so.
Pat Toomey - Summary of Toomey / Manchin Gun Legislation Proposal
http://www.toomey.senate.gov/?p=press_release&id=965
Harry Reid's Gun Legislation Proposal - Senate Bill S. 649
http://afirearmrightschronicle.blogspot.com/2013/03/s649.html
Full Text of Toomey / Manchin Gun Legislation Bill
http://afirearmrightschronicle.blogspot.com/2013/04/toomey-manchin-senate-gun-legislation.html
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