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bwiese
06-07-2011, 5:25 PM
From http://www.nraila.org/Legislation/Read.aspx?ID=6879

Underlining is mine.

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Sen. Rand Paul's Amendment to the Patriot Act

Tuesday, June 07, 2011


As often happens with complex issues, NRA's position on Sen. Rand Paul's defeated PATRIOT Act amendment is being misreported 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 US 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, neither we nor anyone else we've heard from 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.

We have reported previously about the FBI circulating flyers to FFLs asking them to voluntarily report "suspicious" activity. The Paul Amendment, however, would have had a significant chilling effect on these voluntary efforts, forcing the FBI to use more intrusive means to get the same information. For example, U.S. Attorneys would simply demand 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.


* * *

GrizzlyGuy
06-07-2011, 7:25 PM
NRA-ILA really needs to hire a new crop of lawyers and legislative analysts so they can actually understand laws like the PATRIOT Act before they start taking positions on it. Here is what they seem to have missed:

Under existing law, and going w-a-y back to before the PATRIOT Act even existed, federal agents had the power to walk into a gun store and demand copies of all the 4473's, without needing "reasonable cause", or a warrant, and without any judicial approval at all. Here it is in 18 USC 923 (g)(1)(B) (http://www.law.cornell.edu/uscode/718/usc_sec_18_00000923----000-.html) (There is similar text in the regulations for FFLs (27 CFR 478.23 (b) (http://law.justia.com/cfr/title27/27-2.0.1.2.3.html#27:2.0.1.2.3.3.1.3)).:

(B) The Attorney General may inspect or examine the inventory and records of a licensed importer, licensed manufacturer, or licensed dealer without such reasonable cause or warrantó
(i) in the course of a reasonable inquiry during the course of a criminal investigation of a person or persons other than the licensee;

Once the federal agents leave with copies of all the records, the FFL is then free to hop on the phone and call all of us that had a 4473 on file. After all, wouldn't we want to know that the feds walked out with records on all of our guns that were purchased in that store? Of course we would, and I'd expect any patriotic 2A-supporting FFL to burn the midnight oil making those calls.

When the PATRIOT Act was passed, the very nasty Section 215 (http://en.wikipedia.org/wiki/Section_summary_of_the_USA_PATRIOT_Act,_Title_II#S ection_215:_Access_to_records_and_other_items_unde r_FISA) came into existence. In terms of gun records, it also allows federal agents to walk into a gun store and demand copies of all the 4473's, and they do have to go through the process described by NRA. However, there is one BIG difference when they choose to do it that way and it is BAD for us. This (50 USC 1861 (d) (http://codes.lp.findlaw.com/uscode/50/36/IV/1861)):

(d) Nondisclosure
No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.


That means that the FFL is now under a gag order: he can't tell any of us that the feds have our records, and he can't even mention their visit to his wife!

Rand Paul's amendment would have made those PATRIOT Act provisions inapplicable to gun records. The feds can still come in and get all the records under the existing/old law, but they wouldn't have had the option to do it via the PATRIOT Act and put the gag order on the FFL. This part of NRA's press release is therefore true:

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.

Those "other ways" are the ways WITHOUT the gag order, and if our records have to be taken, that is exactly the way we'd WANT them to do it!

The NRA seems to have a real tough time grasping this whole "liberty" thing. They attack private property rights (http://www.calguns.net/calgunforum/showthread.php?p=4926048#post4926048), go after the liberty of doctors to deliver appropriate care (http://www.calguns.net/calgunforum/showpost.php?p=5792678&postcount=51), and now they want big brother to be able to grab our gun records without anyone knowing. Surprise, surprise the NRA blew it again. :rolleyes:

corrupt
06-07-2011, 8:34 PM
Interesting thread, thanks for posting!

QQQ
06-07-2011, 9:05 PM
Thanks for the post, bweise.

Even as a layperson, the NRA's "argument" is thoroughly unconvincing and does nothing to explain how things would have been worse if the amendment were passed- nothing stops the government from doing the things the NRA mentioned here anyways.

I have a strong suspicion that the NRA just wanted to keep friendly with its pro-big government members and allies. And this is coming from a loyal NRA member.

GrizzlyGuy
06-08-2011, 11:33 AM
I have a strong suspicion that the NRA just wanted to keep friendly with its pro-big government members and allies. And this is coming from a loyal NRA member.

That could be, here is the voting record (http://www.govtrack.us/congress/vote.xpd?vote=s2011-82) for that amendment. The true small-government senators voted NAY (i.e. for the amendment as this was a motion to table it). When you have pro-RKBA guys like Mike Lee, Jim DeMint and ALL the senators from the great free states of Montana and Wyoming voting Nay... then you know that NRA was on the wrong side of the issue.

safewaysecurity
06-08-2011, 11:37 AM
I'm dissapointed with the NRA on this one.

Stonewalker
06-08-2011, 11:43 AM
Thanks for the perspective Grizzly. NRA will continue to get my coin but that certainly doesn't mean I agree with everything they do.

AJAX22
06-08-2011, 11:52 AM
The amendment was somewhat poorly drafted, but Its not like the NRA stepped up to help fix it, and its not like they didn't have the better part of a decade to draft an alternate amendment and hand it to one of their pet congress critters.

They just seem to be pissed that something gun related occurred that was popular even though it didn't have their brand on it.


The NRA does some good work, but they Suck rancid walrus anus at playing well with others

Mesa Tactical
06-08-2011, 12:31 PM
They just seem to be pissed that something gun related occurred that was popular even though it didn't have their brand on it.

Perhaps some NRA executives (and certainly many rank and file NRA members) don't want to see the USA PATRIOT Act watered down in any manner.

These guys are all in favor of the 2nd Amendment, but a lot of them have less enthusiasm for the 4th, 5th and 6th Amendments.

shock
06-08-2011, 2:54 PM
agree with grizzly guy


very disappointed with nra and the other pro 2A senators for failing to support senator paul

bwiese
06-08-2011, 3:00 PM
agree with grizzly guy


very disappointed with nra and the other pro 2A senators for failing to support senator paul

Really?
Or did RP2 just put up some ill-thought fluff piece?
I am most certain Chris Cox and others could have worked with RP2 to craft something BETTER and bring more legal analysis in (including input from other pro-gun senators) to have something USEFUL.

AJAX22
06-08-2011, 3:10 PM
Really?
Or did RP2 just put up some ill-thought fluff piece?
I am most certain Chris Cox and others could have worked with RP2 to craft something BETTER and bring more legal analysis in (including input from other pro-gun senators) to have something USEFUL.

So why didn't they?

its not like RP2 was the only guy who could have introduced an amendment to fix that.

bwiese
06-08-2011, 3:16 PM
So why didn't they?

its not like RP2 was the only guy who could have introduced an amendment to fix that.

I'd bet they tried and were rebuffed because the PR isn't as good when RP(2) has something to crow about. I had better hopes for RP2 than for RP. Understand RP2 is tied in with NAGR which has never really done anything except make noise.

AJAX22
06-08-2011, 3:39 PM
I'd bet they tried and were rebuffed because the PR isn't as good when RP(2) has something to crow about. I had better hopes for RP2 than for RP. Understand RP2 is tied in with NAGR which has never really done anything except make noise.

I meant why didn't they introduce their own amendment via one of the hundreds of other congresscritters.

I would have a lot more sympathy for the NRA's side if they had engaged in some form of constructive correction to the problem instead of just denying that there was a problem in the first place.

bwiese
06-08-2011, 4:05 PM
I meant why didn't they introduce their own amendment via one of the hundreds of other congresscritters.

I would have a lot more sympathy for the NRA's side if they had engaged in some form of constructive correction to the problem instead of just denying that there was a problem in the first place.

There really isn't a problem.
There weren't the votes to kill Patriot act anyway. Blame Rs for that.
For the gun issue itself, the status quo appears best.

Luieburger
06-08-2011, 4:18 PM
So would the NRA be opposed to striking the entire Patriot Act from the books? Or is that not a good option either?

I think the whole Patriot Act should be ditched, and in addition the BATFE should also be ditched. No US citizen should need to fill out a 4473 form ever again. Good luck with that though...

bwiese
06-08-2011, 4:27 PM
So would the NRA be opposed to striking the entire Patriot Act from the books? Or is that not a good option either?


Since it's not a gun bill, they won't take a position.
They don't take positions on Social Security, speed limits, or food coloring regulations either.

htjyang
06-08-2011, 4:31 PM
Let's not beat around the bush here.

What happened was that the GOP had some success killing Democratic legislation in the past 4 years by attaching pro-2nd Amendment legislation to them. Since Sen. Paul knew he could not possibly defeat Patriot Act renewal with his little band of supporters, he decided to try the same gambit. The question for the NRA is why it should be dragged into this fight over what is a tangential issue at best. At least in the past when the GOP tried the same tactic, their amendments dealt with the core issues of keep and bear arms. Paul's amendment dealt with the tangential issue of firearms records.

There is also a PR issue here. Suppose if the amendment did pass, it would be a Godsend to the Bradyites who can easily argue that the GOP is wholly in the pocket of the NRA to the extent that it will only protect the records of firearms owners and not those of businesses and what have you.

Finally, Democrats control the Senate. Had they wanted the amendment to pass, it would have. Had they wanted to defeat the Patriot Act, they could have. Blaming the minority is rather odd.

I happen to support the Patriot Act (A recent poll shows that 58% of the population also support it. So at least I have a lot of company.) so I'm glad that the amendment was defeated. I for one see no reason why firearms records deserve any special protection over any other form of record. That aside, I think the NRA should remain what it claims to be, an organization dedicated to supporting the 2nd Amendment. It should not allow itself to be drafted by opportunists for any other agenda.

Stonewalker
06-08-2011, 4:39 PM
Let's not beat around the bush here.

What happened was that the GOP had some success killing Democratic legislation in the past 4 years by attaching pro-2nd Amendment legislation to them. Since Sen. Paul knew he could not possibly defeat Patriot Act renewal with his little band of supporters, he decided to try the same gambit. The question for the NRA is why it should be dragged into this fight over what is a tangential issue at best. At least in the past when the GOP tried the same tactic, their amendments dealt with the core issues of keep and bear arms. Paul's amendment dealt with the tangential issue of firearms records.

There is also a PR issue here. Suppose if the amendment did pass, it would be a Godsend to the Bradyites who can easily argue that the GOP is wholly in the pocket of the NRA to the extent that it will only protect the records of firearms owners and not those of businesses and what have you.

Finally, Democrats control the Senate. Had they wanted the amendment to pass, it would have. Had they wanted to defeat the Patriot Act, they could have. Blaming the minority is rather odd.

I happen to support the Patriot Act (A recent poll shows that 58% of the population also support it. So at least I have a lot of company.) so I'm glad that the amendment was defeated. I for one see no reason why firearms records deserve any special protection over any other form of record. That aside, I think the NRA should remain what it claims to be, an organization dedicated to supporting the 2nd Amendment. It should not allow itself to be drafted by opportunists for any other agenda.

You know what's dumb? The Bill of Rights. You and apparently 58% of America agree. You make good points about the PR realities though.

kpezzy
06-08-2011, 4:49 PM
Let's not beat around the bush here.

What happened was that the GOP had some success killing Democratic legislation in the past 4 years by attaching pro-2nd Amendment legislation to them. Since Sen. Paul knew he could not possibly defeat Patriot Act renewal with his little band of supporters, he decided to try the same gambit. The question for the NRA is why it should be dragged into this fight over what is a tangential issue at best. At least in the past when the GOP tried the same tactic, their amendments dealt with the core issues of keep and bear arms. Paul's amendment dealt with the tangential issue of firearms records.

There is also a PR issue here. Suppose if the amendment did pass, it would be a Godsend to the Bradyites who can easily argue that the GOP is wholly in the pocket of the NRA to the extent that it will only protect the records of firearms owners and not those of businesses and what have you.

Finally, Democrats control the Senate. Had they wanted the amendment to pass, it would have. Had they wanted to defeat the Patriot Act, they could have. Blaming the minority is rather odd.

I happen to support the Patriot Act (A recent poll shows that 58% of the population also support it. So at least I have a lot of company.) so I'm glad that the amendment was defeated. I for one see no reason why firearms records deserve any special protection over any other form of record. That aside, I think the NRA should remain what it claims to be, an organization dedicated to supporting the 2nd Amendment. It should not allow itself to be drafted by opportunists for any other agenda.

Why do you support the Patriot act? I honestly cant believe I just read this nonsense. You think the patriot act is a good thing? Also what poll said that 58% of the population supports that pile of dung?

AJAX22
06-08-2011, 5:00 PM
There really isn't a problem.
There weren't the votes to kill Patriot act anyway. Blame Rs for that.
For the gun issue itself, the status quo appears best.

I'm not concerned with the patriot act (well I am, but not in this context)

I just think that a better way of handling it would have been to draft and introduce an alternate amendment.

That is if the NRA's real issue was the poor way in which it was drafted.

RP2 would have done much better to approach the NRA ahead of time and get their assistance in drafting the bill,

or the NRA could have just stayed out of it entirely.

It was handled quite poorly on all sides.

htjyang
06-08-2011, 5:04 PM
Why do you support the Patriot act? I honestly cant believe I just read this nonsense. You think the patriot act is a good thing? Also what poll said that 58% of the population supports that pile of dung?

This one (http://www.usnews.com/news/blogs/washington-whispers/2011/05/25/public-backs-torture-patriot-act).

I'm not sure that a discussion over the Patriot Act is really appropriate for this forum so let me just briefly state that in my view, the paranoia over the Patriot Act is largely exaggerated, the constitutional arguments are unconvincing, and the people in charge of the intelligence community are virtually unanimous in endorsing it as being essential to their work. That is good enough for me.

Quser.619
06-08-2011, 5:26 PM
To me the simplest explanation is that RP2 might possibly run for President & wanted something else he could use to differentiate himself from the other candidates.

Not passing the Patriot Act is political suicide for most moderate to right politicians. If those powers are going to exist, personally, I'd prefer to have those nasty provisions in a bill that expires then singularly passed as an Executive Order - which the current Administration has no problem doing. At least this way, there is a way to hold someone accountable or end it. Under an EO, there isn't, barring a SCOTUS ruling.

curtisfong
06-08-2011, 5:33 PM
OT, but i can't let this go past w/o comment.

the people in charge of the intelligence community are virtually unanimous in endorsing it as being essential to their work.


The intelligence community would be virtually unanimous in endorsing a police state as being essential to their work

Honestly, the rest of your post made sense until you went here, and my head exploded from rage.

That is good enough for me.

Hence, my rage.

America
06-08-2011, 5:59 PM
Htjang




I'm not sure that a discussion over the Patriot Act is really appropriate for this forum so let me just briefly state that in my view, the paranoia over the Patriot Act is largely exaggerated, the constitutional arguments are unconvincing, and the people in charge of the intelligence community are virtually unanimous in endorsing it as being essential to their work. That is good enough for me.

Keep drinking that kool aid.

gunsmith
06-08-2011, 9:31 PM
Rand is the new kid on the block, hopefully he will age well