Second Amendment Under Fire…From Republicans

Senator Rand Paul (R-Kentucky) has filed a simple amendment to the Patriot Act protecting the rights of Americans to lawfully carry a firearm. His Amendment would stop federal agencies from collecting gun records under the Patriot Act. The amendment preserves two provisions of current law that protects gun owner privacy from a Patriot Act exemption.

The Paul Amendment (SA 328) states in part “no provision of this Act or an amendment made by this Act shall be construed to authorize access to firearms records in the possession of licensed under Chapter 44 of title 18 of the US Code.” The purpose of the Amendment is to “clarify that the authority to obtain information under the US PATRIOT Act does not include the authority to obtain certain firearms records.” Seems like a non-controversial clarification of the powers of the federal government with regard to the 2nd Amendment to the Constitution.

Leadership in both parties disagree and have been doing everything to block consideration of the Paul Amendment. Neil McCabe at Guns and Patriots reported yesterday on Facebook that “finessing arcane procedural tactics, Senate Majority Leader Harry Reid, D-Nev., blocked the amendment by withdrawing his own bill for Patriot Act extension for consideration and then attached it to an unrelated bill.” McCabe further reported that Reid was overheard on the Senate floor expressing an interest in avoiding this vote. That was yesterday, now Republicans in the Senate Leadership are actively opposing the Paul Amendment to the Patriot Act.

In an Email obtained by Big Government from a Senate Republican Leadership staffer for Senator Jon Kyl (R-Arizona) to Republican staff below titled “OPPOSE the Paul Firearm Amendment” argues for Republicans to block the Paul 2nd Amendment protection legislation:

Senator Kyl wanted your boss to be aware of a possible firearms amendment that could be voted on today as part of an amendment agreement on the PATRIOT Act. Senator Kyl urges your boss to vote NO on the amendment (or YES on a tabling motion, if that is how the vote is structured). It is expected that the vote will be a 60-vote threshold.

Republican leadership is opposing a pro-gun amendment in the Senate from one of their own. Gun Owners of America explains the Paul legislation in an alert:

Gun Owners of America worked with Sen. Rand Paul (R-KY) on legislation to exempt 4473’s (the form all buyers fill out when a gun is purchased from a licensed dealer) from that statute’s broad provisions. Sen. Paul will offer that amendment this week, assuming Majority Leader Harry Reid (D-NV) is not able to block the amendment from being offered. Here’s a major concern: Assume the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) goes to the “secret court” (the Foreign Intelligence Surveillance Act, or “FISA” court) and argues, without anyone else in the room, that ALL 4473’s should be seized as “business records” because they are relevant to a terrorism investigation. Can it do that? It’s certainly a big enough danger to warrant our concern and that of Sen. Paul.

Now Republicans in Leadership are trying to defeat the Paul Amendment. The Email alert from Senator Kyl argues that there is sufficient process to protect the privacy of gun owners:

Section 215 of the Patriot Act allows the government to obtain a court order for a subpoena of business records and other tangible things in the possession of third parties if the government proves to the court that there is: (1) probable cause that the target of its investigation is involved in international terrorism; and (2) the requested records are relevant to an international terrorism investigation. In addition, to protect records of firearms sales and other sensitive records, the Patriot Act requires that any request to the court for such records must first be approved by either the Director of the FBI himself or one of two other high-level officials. In light of these protections – judicial review, relevance to a legitimate investigation of a person who appears to be involved in terrorism, and high-level approval of any request for such information – it is extremely unlikely that this authority will ever be used to harass lawful gun owners, and, indeed, there is no evidence whatsoever that this authority has ever been abused in any way.

The problem with Senator Kyl’s position is that there is no probable cause standard to obtain for the government to obtain an order to study a citizen’s gun records in this one sided proceeding. The Patriot Act’s purpose is to protect America from international terrorists through the use of gathering relevant information about suspected bad guys. The problem with allowing the government to review gun records under this low standard is that it violates the 2nd Amendment rights of citizens. The current approach fails to balance the important interests of national security versus the constitutional right to keep and bear Arms. In another EMail provided to Big Government circulated by Senator Paul’s staff, they argue that the anti-gun Obama Administration should not be trusted with this authority to monitor the activities of gun owners.

You may have been told a request for gun records under the Patriot Act must first be approved by the Director of the FBI or other high-ranking officials, and therefore protected from abuse. This argument does not address the fact that the standard of “relevance” is a low standard ripe for abuse, and is not much of an assurance in the face of administration officials who are hostile to the Second Amendment. Recall that the BATFE has been trying to administratively change the law regarding the collection of information on multiple purchases of rifles in certain states (if you don’t remember this, ask your LC’s, they will).

It is astounding that Senate Minority Leader Mitch McConnell (R-Kentucky) could not work out some sort of an agreement to avoid his leadership team from opposing a pro-gun Republican amendment to the Patriot Act. A vote on the Paul Amendment on a motion to table may be held this afternoon. It shall be interesting to see who stands up for the rights of gun owners.