The Enemy of My Enemy is My Friend: Teaming the NRA with the ACLU

Shortly after the release of information by Edward Snowden revealing the United States Government’s abuse of a provision of the Patriot Act, and confirmation by President Obama that an order of the FISC (Foreign Intelligence Surveillance Court) requires the country’s three largest phone companies, including Verizon, to turn over all wireless and landline customers’ daily, detailed call information to the federal government, the ACLU filed suit against the heads of our national intelligence agencies.  The lawsuit names as defendants the heads of the National Security Agency, Federal Bureau of Investigation, Department of Defense, and Department of Justice, and alleges violations of the First and Fourth Amendments. 

There isn’t really anything unusual about the ACLU initiating this lawsuit.   Freedom of speech and the ability to live free from unreasonable searches and seizures are routine gauntlets for the ACLU.  What is unusual about this particular case is the breadth of allies filing amicus briefs (supportive briefs filed by friends of the court to help make the ACLU’s case); and one “friend of the court” in particular:  the National Rifle Association.   The NRA and the ACLU are joining efforts to convince the court that government behavior has reached the point of intolerable invasion of our privacy and infringement upon our Constitutional rights. 

This lawsuit sends a clear message to our government that Americans have had enough.  Regardless of background, Americans expect privacy and governmental respect of the Constitution.

The first paragraph of the Complaint challenges the federal government’s acquisition of the ACLU’s telephone records under the auspices of the Patriot Act.  The ACLU states that the “practice is akin to snatching every American’s address book – with annotations detailing whom we spoke to, when we talked, for how long, and from where.  It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations.”  Hmm…this does sound familiar.  In fact, it sounds quite a bit like what the Fourth Amendment is supposed to protect.

It shouldn’t be difficult to understand why the ACLU, a non-profit organization which frequently represents clients who wish to file suit against the federal or state governments would rather that same federal government (potential defendant) not collect the organization’s private communications with current and potential clients, legislators, journalists and others.  The organization rightly claims that this collection of data could have a “chilling effect” on its potential clients.

But what dog does the NRA have in this fight? 

The NRA’s Bylaws state that among its “Purposes and Objectives” is “[t]o protect and defend the Constitution of the United States”.  The NRA argues in its brief that the mass surveillance program could “allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA.”   The NRA also argues that the mass surveillance program “could allow the government to circumvent legal protections for Americans’ privacy, such as laws that guard against the registration of guns or gun owners”.  

A little known fact is the fact that the NRA and the ACLU previously partnered to support an amendment to what became the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132:  it is a subsequently modified and codified provision of that amendment that the federal government is interpreting and implementing to obtain the daily phone records.   So, a portion of the law the NRA and ACLU previously supported was revised, codified, and is the very law that is now being abused.   

History always reveals such insight into a situation.    

A Government Created Database of Gun Owners

If your doctor asks you about guns in your home, do you have to answer?  If you believe the question is pertinent to your treatment, you may choose to answer it.  A doctor cannot compel you to answer the question, and if a doctor chooses to turn you away for your refusal to answer the question, choose another doctor.  You can listen to my interview with Austin Hill of KINF on this topic here.

Although Pres. Obama has made comments about the importance of determining if guns are “in the wrong hands”, the 2010 Affordable Care Act actually included language meant to protect Second Amendment rights. The government cannot require that information regarding gun ownership be disclosed, and gun ownership cannot be used to determine insurance premium rates.  You can read more about it here

In fact, our current laws prohibit the government from collecting data about gun owners unless government officials are investigating criminal activity and navigate through the appropriate avenues to obtain the information they seek.

The same law that instituted federal regulation of retail firearms sales in the United States, and which law requires dealers to keep records of all firearms made, imported, acquired or disposed of, also protects individual gun owners.  This law is the Gun Control Act of 1968, and one of the central Congressional compromises in passing the Act was that the collected gun ownership records would be kept by the dealers, not by the federal, state, or local governments.   A subsequent federal law, the Firearms Owners’ Protection Act of 1986, expanded the protection to individual gun owners by preventing any governmental body from passing a rule or regulation that would “require centralization of federally mandated dealer records, or require establishment of any system of registration of firearms, firearms owners, or firearms transactions or disposition.”

So for now, absent the abuse of power by our intelligence agencies, our laws are protective of gun owners and prevent a government created firearms registry.  Of course, there are lawmakers who would prefer to change these laws.  It is your duty as a citizen to be informed, watch the proposals, and actively participate to prevent any such laws from being passed in the future.  For now, guard your personal information and be aware that you are not required to disclose that personal information just because someone asks you a question.

It’s Public Comment Time: The So-Called “Gun Trust Loophole” Rule is Published

Gun Trusts are not being eliminated. But one of the benefits of having a gun trust might be.  The proposed rule, if passed as currently drafted, will require that a “responsible person” of a company or trust be photographed, fingerprinted, and obtain the signature of the chief law enforcement officer (CLEO).  The concern, according to the federal government, is that criminals are using entities to avoid a background check, and thereafter obtaining firearms regulated by the National Firearms Act without a background check. 

Although the government provides no statistical support for its conclusion, it proposes a fix for the phantom problem.  A fix that will cost taxpayers an estimated $3,000,000.00 annually.  The estimate for ATF to process the responsible person information is estimated at $1.8 million annually.  The estimated cost to state and local agencies for processing applications for the CLEO signature is $1.2 million.

According to the BATFE, the petition for the rule change was originally submitted to the BATFE in 2009 by the National Firearms Act Trade and Collectors Association (NFATCA).  The BATFE claims that the NFATCA expressed concern that firearms subject to the National Firearms Act (primarily full automatics, suppressors, and short barreled rifles and short-barreled shotguns) may wind up in the hands of people who intend to commit violence.  The Department of Justice, of course, agreed with the undocumented concern of the NFATCA, and hence, the proposed rule change.  However, the NFATCA has taken the position that while they acknowledge that their petition expressed concern regarding “prohibited persons receiving firearms without background checks via trusts and corporations, the draft NPRM does not reflect any discussions or negotiations we have had with the Federal Government regarding same.”  You can read the NFATCA’s official position here.

The undesirable effect on most individual gun owners of the proposed rule is that a “responsible person”, which includes any individual possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and practices of the legal entity, insofar as they pertain to firearms must submit a photograph, fingerprints, and obtain the CLEO stamp of approval (signature) on an application to receive or make an NFA firearm. 

Until December 9, 2013, the government will be accepting public comments to the proposed rule change.  You can view the rule and how to submit comments here

If you wish to avoid the effects of the rule change, make your purchases before the comment period ends.  Contact us for a 3GLaw Gun Trust as soon as possible, so you can submit your paperwork to BATFE prior to any changes.  Remember, despite the proposed new burden on “responsible persons”, a gun trust is still the best way to own and pass your firearms, because a gun trust will still allow sharing of your NFA firearms and will still provide a streamlined incapacity and death plan for your firearms and firearms-related accessories.