The Only Proper Response To Schumer’s Threat

With the confirmation hearings of Judge Neil Gorsuch coming to a close, Minority Leader Sen. Chuck Schumer (D-NY) has announced that he will oppose the confirmation and will encourage his fellow Democrats to filibuster the vote.

In announcing his confrontational approach, Schumer said that Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Trump. Schumer said later that the judge is “not a neutral legal mind but someone with a deep-seated conservative ideology,” hand-picked for Trump by conservative legal groups.

Thomas C. Goldstein, a Supreme Court practitioner and co-founder of SCOTUSblog, said that Democrats on the Senate Judiciary Committee did not present a compelling case that Gorsuch was either an illegitimate nominee or that he was outside the conservative mainstream.

“None of the Democrats set the table” for a filibuster, Goldstein said. He speculated that one option for some Democrats would be to allow an up-or-down vote, and then to vote against confirmation.

In addition to Schumer, Sens. Thomas R. Carper (D-Del.), Robert P. Casey Jr. (D-Pa.) and Ron Wyden (D-Ore.) announced Thursday that they would filibuster Gorsuch. Casey is one of 10 Democratic senators running next year in a state that Trump won.

While I have serious doubts about the spine of Majority Leader Mitch McConnell (R-KY), I think his only proper response to Schumer’s threat to filibuster the nomination of a supremely qualified candidate like Judge Gorsuch is this.

“Nuke’em back to the Stone Age!” or at least back to 1917 when cloture of filibusters was first introduced.

While it is a misquotation of Gen. Curtis LeMay, it still has a resonance to it. Those ten Democrats who represent states carried by President Trump may want to heed the warning implied by that threat.

Another threat those Democrats may want to pay attention to came from Chris Cox of the NRA-ILA. Cox sent a letter to McConnell and Schumer  on March 17th saying that Judge Gorsuch has the full backing of the NRA and that they will be scoring the vote on his confirmation. If senators such as Heidi Heitkamp (D-ND) or Joe Donnelly (D-IN) don’t think the NRA won’t go full scorched earth on them if they vote against Judge Gorsuch, then they are living in a Beltway induced dreamworld.

The Revised S. 374 – Fix Gun Checks Act of 2013

Today in the Senate Judiciary Committee business meeting, Sen. Charles Schumer (D-NY) submitted a substitute amendment for S. 374. This substitute not only changed the name of the bill from the Protecting Responsible Gun Owners Act of 2013 to the Fix Gun Checks Act of 2013 but it also provided that action component that had been missing from the earlier version.

Title I of the bill deals with records submission by the states to the Federal government for purposes of integrating that information into the National Instant Criminal Background Check System. This section provides a carrot and stick approach to getting the states to submit data. It provides for a $100 million appropriation for grants to the states to improve their databases and to help them submit the necessary data to the FBI for NICS check. Up to 10% of this money could be used for a relief from disabilities program. That is, a program to report those to whom firearm rights are restored. I must say this would be a change coming from Chuck Schumer who has stymied the relief from firearms disabilities for years.

The improved data that the bill concerns would be the court records of  those convicted of a felony and those under either a court order or convicted of a misdemeanor crime of domestic violence as well as the mental health adjudications that would cause the loss of firearms rights. The stick component that goes with the grants from Attorney General would be a reduction in monies from the grants under Section 505 of the Omnibus Crime Control and Safe Streets Act of 1968. The states would have two years to bring the records submitted to the 50% or greater level or lose 3% of the Federal monies. It goes up to a 4% reduction after three years if the state didn’t submit at least 70% of the required records. Finally, after the third year there would be a mandatory 5% reduction for any state at less than 90% compliance.

All in all, I can’t argue too much about the intent of Title 1. It is in the interest of everyone to have the records at state level be as accurate as possible and it is also in the interest of everyone that the records in the NICS check system be accurate.

Title II of the S. 374 is a gun controller’s wet dream.

First, Section 202 makes it illegal for a firearm transfer to be made between unlicensed persons. It would required a licensed importer, manufacturer, or dealer to first take possession of it, enter it in their bound book, perform a NICS check, fill out a Form 4473, and then and only then, complete the transfer.

The exceptions include:

  • Bona fide gifts between spouses
  • Bona fide gifts between parents and children
  • Bona fide gifts between siblings
  • Bona fide gifts between grandparents and grandchildren
  • Transfers made from a decedent’s estate by will or operation of law
  • Temporary transfer between unlicensed persons if
    • It occurs in the home or curtilage (adjacent property) of the transferor
    • The firearm is not removed from the home
    • And the duration is less than 7 days.
  • Temporary transfers in connection with lawful hunting or sporting purposes
    • At a range if kept within the premises of the range at all times
    • At a “target firearm shooting competition” under the auspices of a State agency or non-profit organization and the firearm is kept within the premise of the shooting competition.
    • If while hunting to a person with the requisite hunting license during a designated season for a legal game animal.

Section 202 would set a maximum fee for doing the paperwork. It would also require the Form 4473 be kept by the FFL doing the transfer.

The penalty for violating this section is not at all clear. However, it seems to fall upon the FFL who would be liable for a $5,000 civil fine and an up to six months suspension of his or her license. (If you can find another penalty for violating Section 202, please let me know.) Sec. 202 become 18 USC 922 (s) which under 18 USC 924 (D)(5) stipulates a year’s imprisonment and a unspecified fine.

Section 203 is equally egregious. It mandates the reporting of lost or stolen firearms within 24 hours of discovery to the “Attorney General and to the appropriate authorities.” More importantly, the penalty for knowingly violating this provision is 5 years imprisonment!

If passed, the law goes into effect in 180 days from passage. So far, it has passed out of the Judiciary Committee on a 10-8 party-line vote.

While the gun prohibitionists would like to have bans on standard capacity magazines and semi-automatic firearms with ugly cosmetics, universal background checks is what they really want because the only way to make enforcement of them possible is a national firearms and firearm owners database. As Andy Grove, the former CEO of Intel Corporation, famously said, only the paranoid survive.

Results Of Today’s Senate Judiciary Committee Meeting

As I said earlier today, the Senate Judiciary Committee was going to resume meeting to discuss three gun related bills and the nomination of Kenneth Gonzales. They have released the results of the meeting and I have posted it below. Gonzales’ nomination was not acted upon nor was Dianne Feinstein’s S. 150. However, both Sen. Chuck Schumer’s S. 374 and Sen. Barbara Boxer’s S. 146 were reported out of committee with amendments.

Results of Executive Business Meeting – March 12, 2013
The Senate Judiciary Committee held a continuation of an executive business meeting to consider pending legislation on March 12, 2013. The Committee was not able to complete action on all pending matters and the meeting recessed subject to the call of the Chair.

I. Legislation

S. 374, Protecting Responsible Gun Sellers Act of 2013
Ordered Reported by Roll Call Vote, 10-8

Amendment ALB13180 (Schumer)
Adopted by Unanimous Consent

S. 146, School Safety Enhancements Act of 2013
Ordered Reported by Roll Call Vote 14-4

Amendment OLL13111 (Leahy)
Adopted by Unanimous Consent

Amendment OLL13112 (Grassley)

 Last week I wrote that I found it strange that Sen. Chuck Schumer’s S. 374 – Protecting Responsible Gun Sellers Act of 2013 – did not have an action component. It merely consisted of findings which were more suited to a Senate Resolution than to actual legislation.

That was then and this is now. The amendment that Schumer made today in committee to S. 374 contains the meat of the bill and it isn’t pretty. Not only does it have universal background checks but it contains a provision that requires gun owners to report stolen weapons within 24 hours to authorities. The bill has also been renamed to the Fix Gun Checks Act of 2013. There is more to the bill and I will have a separate post up about it after I finishing reading the whole thing.

Here is the link to my separate post on the bill.

S. 374 – Protecting Responsible Gun Sellers Act of 2013

Sen. Charles Schumer (D-NY) introduced S. 374 – the Protecting Responsible Gun Sellers Act of 2013- on February 25th and it will be voted for in the Senate Judiciary Committee today. The text of this Orwellian sounding bill is below. If you read it closely, it seems to be missing something. That something is the action component to go with the so-called findings part of the bill.

S 374 IS


1st Session

S. 374

To ensure that all individuals who should be prohibited from buying a firearm are listed in the national instant criminal background check system and require a background check for every firearm sale.


February 25, 2013

Mr. SCHUMER introduced the following bill; which was read twice and referred to the Committee on the Judiciary


To ensure that all individuals who should be prohibited from buying a firearm are listed in the national instant criminal background check system and require a background check for every firearm sale.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Protecting Responsible Gun Sellers Act of 2013′.


Congress makes the following findings:

(1) Congress supports and respects the right to bear arms found in the Second Amendment to the Constitution of the United States.

(2) Congress supports the existing prohibition on a national firearms registry.

(3) There are deficits in the background check system in effect before the date of enactment of this Act and the Department of Justice should make it a top priority to work with States to swiftly input missing records, including mental health records.

(4) If the citizens of the United States agree that in order to promote safe and responsible gun ownership criminals and the mentally ill should be prohibited from possessing firearms, it should be incumbent upon all citizens to ensure weapons are not being transferred to such people.


The introduction to the bill calls its a bill to require all prohibited persons be listed in the NICS database AND to require a background check for all gun sales. So the question remains where is the action component of the bill. The
bill as written reads like a Senate Resolution minus a whole bunch of

The devil is always in the details and I expect the devil to be at play with this bill. What will the Democrats on the Senate Judiciary Committee add to this bill today and what will be added as amendments on the floor of the Senate assuming that this bill, as expected, moves out of committee?

In my opinion, the innocuous sounding text of the bill plus the missing action component makes this a dangerous bill. I see it is a vehicle sponsored by one of the most notorious gun prohibitionists in the Congress to saddle us with gun control that we don’t want or need.

Scary Picture Of The Day

Senators Chuck Schumer (D-NY) and Kirsten Gillibrand (D-NY) toured Staten Island yesterday to see the destruction wrought by Hurricane/Tropical Storm Sandy and brought with them promises of aid. The south shore of the  “forgotten borough” was one of the hardest areas in New York.

Gillibrand had the good sense to wear a normal fleece jacket. Schumer, on the other hand, was wearing an official navy windbreaker from FEMA. Now if that isn’t a scary sight, I don’t know what is. The most anti-gun senator in the Senate wearing a jacket from one of the most inept agencies of the Federal government. I won’t even mention that FEMA is the topic of more than one conspiracy theory.

Picture from the Staten Island Advance

(Do keep the people of Staten Island in your prayers and thoughts. My cousin Tom and his wife Meryl still live in my grandparent’s old house on Staten Island and came through OK. Unfortunately, there are plenty of others who’s lives and homes were devastated.)

Never Letting A Tragedy Go To Waste

The gun prohibitionists never let a tragedy go to waste. A gaggle of Democrat Senators led by Frank Lautenberg (D-NJ) and Chuck Schumer (D-NY) have proposed an amendment to S. 3414, the Cybersecurity Act of 2012, that would ban all magazines, stripper clips, drums, and belts that would hold more than 10 rounds. They do carve out an exception for .22 LR.

This is similar to the bill that Rep. Carolyn McCarthy proposed following the shooting in Tucson in 2011. Like her bill, while you could possess a pre-ban mag, it doesn’t allow you to sell or transfer it.

Sen. Schumer defended the amendment on the floor of the Senate yesterday. The Hill has video of it here. He said in part,

“Maybe we could come together on guns if each side gave some,” Schumer said.

He suggested that Democrats make it clear that their goal is not to repeal the Second Amendment.

“The basic complaint is that the Chuck Schumers of the world want to take away your guns,” Schumer said of the argument made by gun lobbies. “I think it would be smart for those of us who want rational gun control to make it know that that’s not true at all.”

Schumer also pointed out that it would be reasonable for the right to recognize that background checks on those buying guns is necessary — as called for in the Brady law. He also said average Americans don’t need an assault weapon to go hunting or protect themselves.

“We can debate where to draw the line of reasonableness, but we might be able to come to an agreement in the middle,” Schumer said. “Maybe, maybe, maybe we can pass some laws that might, might, might stop some of the unnecessary casualties … maybe there’s a way we can some together and try to break through the log jam and make sure the country is a better place.”

The only problem when gun prohibitionists like Schumer and others of his ilk say “reasonableness”, “rational”, and “common sense” is that they expect those of us who favor gun rights to give up something so that we don’t lose even more stuff. I never see them proposing the end to any of the 20,000 plus bills that are already on the books.

As Sebastian said last night, it is good that this fight is now out in the open. Moreover, now that it is, we need to counter it.

The full text of Senate Amendment 2575 is below:

SA 2575. Mr. LAUTENBERG (for himself, Mrs. BOXER, Mr. REED, Mr. MENENDEZ, Mrs. GILLIBRAND, Mr. SCHUMER, and Mrs. FEINSTEIN) submitted an amendment intended to be proposed by him to the bill S. 3414, to enhance the security and resiliency of the cyber and communications infrastructure of the United States; which was ordered to lie on the table; as follows:

At the appropriate place, insert the following


(a) Definition.–Section 921(a) of title 18, United States Code, is amended by inserting after paragraph (29) the following:

“(30) The term `large capacity ammunition feeding device’–

“(A) means a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition; but

“(B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.”.

(b) Prohibitions.–Section 922 of such title is amended by inserting after subsection (u) the following:

“(v)(1)(A)(i) Except as provided in clause (ii), it shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device.

“(ii) Clause (i) shall not apply to the possession of a large capacity ammunition feeding device otherwise lawfully possessed within the United States on or before the date of the enactment of this subsection.

“(B) It shall be unlawful for any person to import or bring into the United States a large capacity ammunition feeding device.

“(2) Paragraph (1) shall not apply to–

“(A) a manufacture for, transfer to, or possession by the United States or a department or agency of the United States or a State or a department, agency, or political subdivision of a State, or a transfer to or possession by a law enforcement officer employed by such an entity for purposes of law enforcement (whether on or off duty);

“(B) a transfer to a licensee under title I of the Atomic Energy Act of 1954 for purposes of establishing and maintaining an on-site physical protection system and security organization required by Federal law, or possession by an employee or contractor of such a licensee on-site for such purposes or off-site for purposes of licensee-authorized training or transportation of nuclear materials;

“(C) the possession, by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving ammunition, of a large capacity ammunition feeding device transferred to the individual by the agency upon that retirement; or

“(D) a manufacture, transfer, or possession of a large capacity ammunition feeding device by a licensed manufacturer or licensed importer for the purposes of testing or experimentation authorized by the Attorney General.”.

(c) Penalties.–Section 924(a) of such title is amended by adding at the end the following:

“(8) Whoever knowingly violates section 922(v) shall be fined under this title, imprisoned not more than 10 years, or both.”.

(d) Identification Markings.–Section 923(i) of such title is amended by adding at the end the following: “A large capacity ammunition feeding device manufactured after the date of the enactment of this sentence shall be identified by a serial number that clearly shows that the device was manufactured after such date of enactment, and such other identification as the Attorney General may by regulation prescribe.”.

– Posted using BlogPress from my iPad

Dave Kopel On The Fix Gun Checks Act

Dave Kopel appeared before the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism Tuesday to testify against Chuck Schumer’s S. 436 – the Fix Gun Checks Act of 2011. I used part of his testimony for Wednesday’s Quote of the Day in which he described S. 436 as unconstitutional. Here he is discussing his full testimony – and his testimony in favor of HR 822 – with Cam Edwards of NRA News.

I had a chance to meet and chat with Dave on the bus from the airport at the Gun Rights Policy Conference. He is definitely an interesting guy and I’m glad he is on our side.

Unintended Irony

Yesterday, the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism held a hearing on Sen. Chuck Schumer’s bill, S. 436 – Fix Gun Checks Act of 2011. One of the witnesses was Heather Anderson of the Washington State Patrol. Her written testimony spoke to Washington State’s submissions for inclusion in the National Instant Criminal Background Check System (NICS).

In what can only be called an unintended ironic statement she said,

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has determined that Washington State does not meet the requirements of the NIAA for firearm restoration of rights and a relief program. ATF considers Washington’s relief law too permissive in some areas and too restrictive in others. This does not allow Washington to participate in NIAA requests for grant funding. The legislature has not updated state law to match federal requirements. There is continued effort by multiple agencies to accomplish this in the future.

What makes this so ironic is that ATF has not processed ANY request for restoration of firearms rights since October 1992. And the reason that they haven’t is because Sen. Chuck Schumer always inserts a clause in the appropriations language to deny them the funds to process these applications for the restoration of firearms rights.

While 18 USC 925(c) does provide for judicial review of applications for the restoration of firearms rights, the Supreme Court ruled in U.S. v. Bean that the courts cannot perform judicial review until such time as an application is rejected by ATF. If ATF is denied the money to process these applications, there can be no denial. In other words, the consummate Catch-22 situation.

Quote Of The Day

The Senate Judiciary Committee’s Subcommittee on Crime and Terrorism held a hearing yesterday on one of Mayor Bloomberg’s pet projects. The bill, S. 436, the Fix Gun Checks Act of 2011, was introduced in the Senate by Sen. Chuck Schumer (D-NY). The witnesses were what might be expected from in the Democrat controlled Senate with one exception.

Attorney David Kopel appeared to testify before the subcommittee in opposition to the bill. He correctly tore the bill to pieces. His conclusion is the quote of the day.

S. 436 violates the Second Amendment right to keep and bear arms, the Fifth Amendment guarantee of due of law, the Fifth Amendment guarantee of equal protection of the law, and the Tenth Amendment’s reservation of state authority over purely intrastate activities. S. 436 further violates the Tenth Amendment by imposing on the vast majority of states an extremely repressive system of restrictions on law-abiding gun owners which those states have already rejected.

Ever since 1776, Congress has recognized that a national gun registry would be a dangerous violation of the right to keep and bear arms. S. 436 creates such a registry.

S. 436 has no legitimate constitutional basis of authority, because S. 436 attempts to twists Congress’s real power to regulate interstate commerce into the power to regulate what is not interstate and not commercial.

S. 436 treats arrests as if they were convictions.

S. 436 takes the current gun ban for the criminally insane and applies it to non-dangerous people who have been ordered to get counseling for mental problems that have absolutely nothing to do with dangerousness—including stuttering, lack of sexual desire, and nicotine dependence.

Whatever good intentions might lie behind S. 436, the actual bill as drafted is grotesquely overbroad, and a Pandora’s Box of the dangerous consequences that are the inevitable result of making it a felony for law-abiding Americans to possess and use firearms.