By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
What is the goal of Congress: To repair and improve NICS reporting requirements or to turn NICS into a massive firearms registration scheme?
New York, NY -(Ammoland.com)- “The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” ~ Thomas Jefferson’s Literary Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774—1776
On Wednesday, December 6, 2017, the United States Senate Committee on the Judiciary, presided over by Chairman Chuck Grassley, R-IA, held a three-hour Hearing on firearms, titled,“Firearm Accessory Regulation and Enforcing Federal and State Reporting to the National Instant Criminal Background Check System (NICS).” The full Committee attended. That included the Ranking Democratic Member of the Committee, and virulent opponent of the right of the people to keep and bear arms, Dianne Feinstein, D-Calif. CSPAN televised the Hearing.
Two panels convened. The first one included senior officials of the ATF, FBI, the Secretary of the U.S. Air Force, and the Inspector General of Department of Defense. The second panel convened included, inter alia, a survivor of the Las Vegas mass shooting tragedy, Heather Gooze, who was the first to speak; two Second Amendment legal experts, David Kopel and Stephen Halbrook; and the Montgomery County Chief of Police and Major Cities Chiefs Association President, J. Thomas Manger.
The two mass shooting incidents—one occurring during the Harvest Music Festival in Las Vegas, Nevada, on October 1, 2017 and the second occurring at First Baptist Church in Sutherland Springs, Texas, roughly one month later, on November 5, 2017—served, evidently, as the impetus for and the backdrop for this Hearing. The Senate Judiciary Committee focused its questioning of the first panel on: one, the mechanics of criminal and mental health reporting requirements, two, the sharing of data or lack of sharing of data between State and federal police agencies, and, three, the failure of Governmental agencies, both federal and State, to maintain accurate, reliable, and complete databases on those individuals who are not permitted to possess firearms. The Senate Judiciary Committee focused questioning of the second panel on firearms—semiautomatic rifles—that the killers, Stephen Paddock and Devin Patrick Kelley allegedly utilized to murder innocent people.
The purpose of this article is not to delve into the interstices and intricacies of the Senate Hearing but to inform the American public of the fact of it and the specific concerns addressed during it that cast in high relief the dangers posed to preserving the sacred right embodied in the Second Amendment.
Anti-gun proponents, through their Congressional representatives—Senate Democratic Party members of the Senate Judiciary Committee, including ranking Democratic Party member, Dianne Feinstein, and her principal cohorts, Patrick Leahy, Richard Blumenthal, Dick Durbin, and Sheldon Whitehouse, among others—wish to move the National Instant Criminal Background Check System (NICS) and other criminal and mental health databases into an efficient and massive and broad digital firearms registration scheme, embracing more and more individuals and incentivizing the military and the States to add comprehensive criminal and mental health data into NICS and other databases. Through this Hearing, and through recent comments of anti-gun proponents in news broadcasts, we see renewed efforts by anti-gun proponents, stoked by the recent mass shooting incidents—to weaken the Second Amendment beyond past efforts. Emboldened, we see efforts afoot by anti-gun proponents to transform NICS and other federal and State databases into a comprehensive digital firearms’ registration scheme, wrapping it into a more restrictive, draconian criminal and mental health background check scheme.
If successful, these efforts by the anti-gun movement would infringe not only the basic, natural and fundamental right of the people to keep and bear arms, embodied in the Second Amendment,but would also infringe the fundamental right embodied in the unreasonable searches and seizures clause of the Fourth Amendment, and infringe, too, the Takings Clause of the Fifth Amendment. And, the anti-gun movement does not stop there. Not content to ban some semiautomatic firearms—that Federal Statute (the Federal Assault Weapons Ban (AWB)) at one time defined certain semiautomatic firearms as ‘assault weapons,’ until the AWB expired in 2004, and which several States, with their own assault weapon ban statutes, in full force, presently prohibit—the anti-gun movement now seeks to ban all semiautomatic firearms.
There are efforts afoot to enact federal law not unlike the National Firearms Act of 1934 (NFA). Under the NFA, the ATF heavily regulates civilian ownership and possession of from possessing fully automatic machine guns and submachine guns and selective fire assault rifles. And, the civilian population is prohibited altogether from owning newly manufactured fully automatic weapons.
So, even as the House in recent days passed the Concealed Carry Reciprocity Act of 2017 (H.R. 38), a bill that strengthens the Second Amendment—which now goes to the U.S. Senate for consideration—we see, in stark contrast and contradistinction to pro-Second Amendment efforts to strengthen the right of the people to keep and bear arms, anti-gun Legislators mobilizing and gearing up to dispossess American citizens of semiautomatic firearms—all semiautomatic firearms, not merely those bizarrely categorized as ‘assault weapons.’ Anti-gun proponents evidently feel that they can hoodwink the American public, given the recent mass shooting incidents—which they use to their advantage—as they work unceasingly toward their ultimate goal to dispossess all Americans, eventually, of their firearms.
During the questioning of the first panel, senior Officials of the Federal Government admitted that the NICS system was incomplete and faulty. The reason for this is that the military, especially, but also the States, have been remiss in entering data pertaining to individuals convicted of crimes that preclude these individuals from possessing firearms. Senator Ted Cruz, in his opening remarks, also made the pertinent point that individuals who falsify information to obtain a firearm have violated federal law, but that these crimes are rarely prosecuted and, so, all too often go unpunished.
Falsifying information to obtain a firearm when an individual is not permitted to possess a firearm is a serious crime. 18 USC § 922(a)(6), titled, “Unlawful acts” sets forth clearly, categorically, and unequivocally that: “it shall be unlawful for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.” Senator Cruz was making the point, albeit tacitly, that laws that have no legal consequences do not amount to laws at all. Enforcement of federal firearms laws is lackadaisical at best, a point often made by NRA and a point perfunctorily ignored by anti-gun proponents whose real goal, after all, is to go after the millions of law-abiding gun owners, even as they profess to express concern over those individuals, alone, who are absolutely prohibited by law “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” See United States Code, 18 USC § 922(g), “Unlawful Acts,” as set forth in Title 18, “Crimes and Criminal Procedure,” of Part I, “Crimes,” of Chapter 44, “Firearms.”
During the hearing, Legislators on the Judiciary Committee uniformly expressed concern over faulty federal NICS record-keeping and they requested, from the panel of senior Government officials, an explanation for their failure to keep the criminal databases up-to-date. But, it is one thing to repair the NICS record-keeping system; it is quite another to contemplate dumping ever more people into it, essentially, eventually, encapsulating minutia of mental health details of every American, along with details of every infraction committed by every American during every period of his or her life—every spat between husband wife or boyfriend and girlfriend, and an accounting of every instance, every bout of depression or anxiety an American citizen at one time or another may have had. Democratic Party members of the Judiciary Committee—alluded to expanding NICS and other criminal and mental health databases into a comprehensive and permanent digital—as opposed to merely manual—database of every firearm’s transaction and tying that to and in tandem with a universal background check schema.
Clearly, the aim of the Democrats on the Senate Judiciary Committee is, then, more ambitious and grandiose than merely repairing a faulty NICS system.
We are headed toward a universal registration system if anti-gun proponents have their way. Every firearm owner becomes suspect. Hence, every American, who owns a firearm must be carefully screened, and those licensed and therefore “privileged” to own and possess a firearm, will be carefully and continuously observed for signs of anti-social behavior, predicated on subjective standards of assessment. The implication of a universal criminal and mental health background check system tied into a permanent NICS databases are dire from the standpoint of Constitutional privacy concerns.
Then, there are the firearms themselves. During the questioning of the second panel, it became clear that, it wasn’t Stephen Paddock or Devin Patrick Kelley that were castigated, who it was that the anti-gun Senators at the Hearing were really concerned about, but the semiautomatic weapons themselves.
The first speaker on the second panel was a young woman, Heather Gooze, who detailed her personal experiences during the Las Vegas shooting episode. This survivor’s anguished account of holding and attempting to aid and comfort a dying stranger, who had been shot by Paddock, was poignant, graphic, heart-rending, heartfelt, and deep-felt, as it was meant to be—but, for all that, it was also irrelevant. The fault for the tragedy in Las Vegas is not laid at the feet of the maniac, Stephen Paddock, who caused it—assuming there were no others that abetted the crime.
The fault for the crime is laid on inanimate objects—the weapons Paddock used in the commission of his heinous acts. But, if civilian access to an entire category of weapons, semiautomatic rifles, in common use by millions of law-abiding, sane, responsible Americans, is to be curtailed, arguments must be propounded based on sound law and logic not emotion, however endearing and heartfelt and honest one’s emotional remarks are.
Unabashed grief and anger was on display during the Hearing. That is what we heard from the young woman, Heather Gooze: a plaintive and soulful, if tacit, cry for a universal ban on semiautomatic weapons, and that is what the Senators on the Judiciary Committee got. This appeal to sympathy is a common fallacy that an undergraduate student learns about in a course on informal and formal symbolic logic. The Latin expression for this informal fallacy is called, argumentum ad misericordiam (argument from pity or sympathy or misery, or compassion). The fallacy of argumentum ad misericordiam is committed when pity, or sympathy, or compassion, or misery is appealed to for the sake of getting someone to accept a conclusion predicated on mere emotion, sidestepping the salient issue.
Appealing to pity, compassion, or sympathy, or misery avoids dealing with the pertinent legal questions. The pertinent legal question here is this: do semiautomatic weapons fall within the core of the Second Amendment’s protection? Anti-gun proponents use the argument from pity incessantly to sidestep this legal issue—the real issue—because they do not wish to hit the issue head-on. Appealing to sympathy or pity, or misery, or anger operates as a substitute for cogent and sound legal and logical reasoning. It is unfortunate that the U.S. Supreme Court has, at least twice, decided not to take up the issue whether semiautomatic weapons do fall within the core of the Second Amendment’s protection, as appellants in the cases failed to garner four votes necessary to secure high Court review. See, Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015), cert. denied, 136 S. Ct. 447, 193 L. Ed.2d 483 (2015); and, recently, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016), cert. denied, 2017 LEXIS 7002. The Arbalest Quarrel has written extensively on both these cases.
The legal and logical weaknesses of the anti-gun proponent’s position, apropos of semiautomatic weapons, would be all too apparent were they to try to evince an argument. The public is hit with emotional rhetoric and pious sentiments, instead. Such emotional outrage has clout, even if it is devoid of substance. Heather Gooze used it to good effect during the Hearing.
Anti-gun proponents invariably take the argumentum ad misericordiam out of their sack whenever a tragedy involving the misuse of firearms occurs. They know that tragic events tug at the heartstrings of anyone who has a modicum of compassion in his or her heart, which are the majority of us—and which do not include psychopaths, who have no inkling of and therefore have absolutely no understanding of the concept of compassion, and which include, as well, common criminals who might understand compassion but simply don’t care since a consideration of compassion during the commission of a crime interferes with their personal selfish ends.
Appealing to sympathy as an argument to dispossess millions of law-abiding firearms owners of their firearms operates as a useful makeweight, a convenient scapegoat, for anti-gun proponents, allowing anti-gun proponents to avoid factoring in the complex legal, logical, historical, cultural, and ethical ramifications of taking firearms away from millions of sane, rational, honest Americans. Essentially the anti-gun proponent’s argument, in various forms and permutations, boils down to this:
“semiautomatic ‘assault weapons’ are weapons of war and have no legitimate use in civilian hands other than to commit murder and to do so on a large scale. And, manufacturers market these weapons to the entire civilian population which includes, then, mentally ill individuals and criminals who should not have them. These weapons have incredible firepower and no legitimate civilian use. Just look at what happens when a poor, deluded person gets hold of this ‘weapon of war.’ Just look at the harm he calls. Anyone who has a heart at all should see that semiautomatic assault weapons will only cause bad things to happen and will cause good people to do bad things. If you don’t want to see an innocent child, a vulnerable woman, a weak old man harmed—and what caring, compassionate human being does—then you will agree with us that there is no place for these ‘weapons of war’ in a civilized society, and you will write or call your Congressman or Senator, asking your Legislator to enact legislation that permanently bans these awful weapons of war, to ban them for the good of society so that no other person will ever suffer the needless tragedy that these weapons of war cause.”
Well, if there is a sound reason for banning semiautomatic weapons from civilians, this isn’t it. Apart from appealing solely to one’s emotions, the argument embraces false assumptions, hyperbole, and irrelevant considerations. And, if you think our illustration of the fallacy of argumentum ad misericordiam amounts itself to a fallacy—the straw man fallacy, as some, who challenge our position, may claim—it does not. The remarks, concerning semiautomatic weapons as ‘assault weapons’ and ‘weapons of war,’ “weapons that have no legitimate civilian use,” and the notion that firearms manufacturers market these “weapons of war” to criminals and to the mentally ill are not suppositions the Arbalest Quarrel has invented to illustrate an argumentum ad misericordiam, simply to knock down a straw man deliberately created for that purpose. No! These remarks are not our invention at all. They are utilized constantly, incessantly by anti-gun proponents. And, more to the point, they comprise, in part, allegations of an actual formal legal pleading—namely and specifically the First Amended Complaint of the Soto Plaintiffs, in Soto vs. Bushmaster Firearms International, LLC., 2016 Conn. Super. LEXIS 2626; CCH Prod. Liab. Rep. P19,932. The Arbalest Quarrel has written extensively on this case and continues to write articles about it. See, for example, our in-depth article, titled, “Soto vs. Bushmaster: Antigunners Take Aim at Gun Manufacturers.”
We also wish to point out that a detailed account of one’s personal experiences, as related to the reader or listener—those of Heather Gooze, during the Senate Hearing—amount to a series of declarations that have no appreciable value epistemic value. In other words, her account of the tragedy in Las Vegas, that occurred during the Harvest Music Festival, is not the sort of thing that one can reasonably challenge or that need be challenged or is expected by anyone to be challenged, as false.
The Arbalest Quarrel accepts the account of Heather Gooze, as related at the Senate Hearing, as true, and does not quarrel with it. There is no reason to. There is no reason to consider her personal account as false. We say this because the remarks of Heather Gooze have no concrete epistemic value on the salient issue whether semiautomatic weapons fall within the core of the Second Amendment. Her remarks or declarations of events as she experienced them at the Harvest Music Festival do not serve as a sound reason for banning semiautomatic weapons from millions of average, law-abiding, rational, responsible American citizens, notwithstanding that the Democratic Party Senators on the Judiciary Committee happen to believe the account of Heather Gooze to be relevant to the issue whether semiautomatic weapons properly belong in the hands of the average, rational and responsible American citizen. Her remarks, at best, simply attest to a matter that everyone can agree with: that criminals, psychopaths, Islamic terrorists, and other assorted lunatics—the flotsam and jetsam of society—should not have access to any firearm. One might by the same token argue that the worst elements of society have access to anything that can feasibly be used to cause great harm to others and to many—a knife, an automobile or truck, or chainsaw. What we are getting at here is that common criminals, members of drug cartels and criminal gangs, psychopaths, Islamic terrorists, and assorted lunatics and maniacs who pose a danger to others should be removed from our society. It is not the firearm that should be removed from American society.
That common criminals, terrorists, psychotics, or psychopaths may happen to get their hands on a semiautomatic rifle or on any other firearm to harm others does not serve as a sound legal or logical reason for banning semiautomatic weapons en masse from millions of average, law-abiding, responsible, rational American citizens. And, make no mistake,Senator Dianne Feinstein and the other Democratic Party members of the Senate Judiciary Committee do seek to ban and work feverishly to ban all semiautomatic weapons, just as fully automatic weapons and selective fire weapons have been essentially banned from civilian possession, since 1934, with passage of the National Firearms Act (NFA). In fact, Senator Dianne Feinstein would accomplish this feat through enactment of a very devious bit of legislation, which was referred to during the Senate Hearing.
Roughly two months ago, on October 4, 2017, Senator Feinstein introduced the following bill in the U.S. Senate:
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 “Automatic Gunfire Prevention Act”.
POSSESSION OF CERTAIN FIREARM ACCESSORIES. Chapter 44 of title 18, United States Code, is amended-
in section 922, by inserting after subsection (u) the following:
“(v)(1) Except as provided in paragraph (2), on and after the date that is 180 days after the date of enactment of this subsection, it shall be unlawful for any person to import, sell, manufacture, transfer, or possess, in or affecting interstate or foreign commerce, a trigger crank, a bump-fire device, or any part, combination of parts, component, device, attachment, or accessory that is designed or functions to accelerate the rate of fire of a semiautomatic rifle but not convert the semiautomatic rifle into a machinegun.
This subsection does not apply with respect to the importation for, manufacture for, sale to, transfer to, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof.”; and
in section 924(a)(2), by striking “, or (o)” and inserting “(o), or (v)”.
Attorneys David Kopel and Stephen Halbrook, sitting on the second panel, and testifying at the Senate Hearing—were acutely aware of this Senate bill. David Kopel pointed out that the language of Feinstein’s bill, the “Automatic Gunfire Prevention Act,” makes very clear that any change at all to any semiautomatic weapon—lightening the trigger pull, for example, or even cleaning a firearm—can effectively serve to increase the rate of fire of the weapon. Thus, any semiautomatic rifle can, were Feinstein’s bill enacted, serve as the basis to ban outright all semiautomatic rifles. When faced with David Kopel’s critical, astute remarks, Senator Feinstein demurred, seemed agitated and, evidently, perplexed, asserting, disingenuously, that the bill was drafted by capable attorneys, suggesting, perhaps, or, then again, perhaps not, that her bill only targets certain types of accessories or components for semiautomatic weapons, such as the “bump-fire device” (“bump stock”) that are specifically mentioned, and not, ipso facto, all semiautomatic weapons. But, that doesn't seem to be the case; and, if that is not the case, then this would suggest that the drafters of Feinstein’s bill either know very little about the operation of semiautomatic rifles or know the operation of semiautomatic weapons all too well. If the former supposition is true, then the bill has unintended consequences: positive consequences for anti-gun proponents; negative consequences for everyone else. This means that all semiautomatic rifles can and eventually would be banned. This is consistent with the plain meaning of the bill. If the latter supposition is true, then, given the plain meaning of the bill, the bill is a subterfuge. This would mean that those who drafted Feinstein's bill intended, all along, not to suggest that only certain accessories for semiautomatic rifles would be banned, but that, in fact, all semiautomatic weapons would be banned, as this is what anti-gun proponents want and have wanted all along and this is what the bill says: no semiautomatic weapons in the hands of American citizens qua civilians. Either way, Senator Feinstein would derive from her bill, if enacted, exactly what she had long sought—a universal ban on semiautomatic weapons defined as ‘assault weapons’—meaning, of course, that all semiautomatic weapons are, ipso facto, ‘assault weapons,’ as Senator Feinstein sees it.
Never underestimate the deviousness of anti-gun proponents and never trust them when they assert that they do not seek to defeat the right of the people to keep and bear arms as codified in the Second Amendment.
These anti-gun groups, and ant-igun legislators, and their billionaire benefactors, and their fellow travelers in the mainstream media and in Hollywood, will not rest until each and every average American citizen qua civilian—apart from the so-called “elites” in society, like Senator Feinstein, herself—is prohibited, by law, from owning and possessing any kind of firearm.
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