From: LARRY.PRATT.AND.STAFF@prn-bbs.org (LARRY PRATT AND STAFF) Subject: HR 1488 Bulletin To: firearms-alert@SHELL.PORTAL.COM, roc@xmission.com Date: Wed, 16 Aug 1995 00:51:57 GMT HR 1488: Trojan Horse in the Pro-gun Community? by Gun Owners of America While there are several good bills in the House to repeal the semi-auto ban, the bill which the House leadership has "anointed" for consideration has some tremendous problems with it. H.R. 1488, introduced by Rep. Bob Barr (R-GA), contains an impossible-to-swallow provision which would enormously expand the powers of the BATF. GOA members have deluged Congress with postcards opposing this provision. Already, some Representatives have responded favorably and are working hard to fix the problem section in the bill. Rep. David Funderburk (R-NC) stated in a letter dated July 5, that "I agree with you entirely; we must not allow an otherwise good bill to be used as a vehicle to expand the power and authority of the BATF." However, some pro-gun groups have wondered if this expansion would be that bad. GOA's position is that Section 3 of H.R. 1488 would greatly threaten the rights of gun owners, and that this section MUST be fixed. Since many people have asked us for a more detailed breakdown of the problems in Section 3, the following will analyze the language and problems with this section. HOW FEDERAL LAW DEFINES THE LANGUAGE OF SECTION 3: Section 3 of H.R. 1488 states that, A person who, during and in relation to a serious violent felony [defined below] . . . for which the person may be prosecuted in the court of any state [state crime] . . . (ii) brandishes a firearm . . . shall be sentenced to imprisonment for not less than 10 years. Some have focused on the language relating to a "serious violent felony" and have mistakenly concluded the mandatory minimum prison terms in this section will only apply to actual, violent criminals. The problem is, the meaning of "serious violent felony" is not open to interpretation. It does not matter what a "reasonable person" might think this term means. Federal law defines what is a "serious violent felony" and that definition needs to guide one's interpretation of Section 3. As defined, "serious violent felony" could easily allow officials to charge a person who used a gun to discourage an assailant. Indeed, a Pennsylvania man recently took a licensed firearm from his glove compartment and merely laid it on his passenger-side seat in view of an individual who was attempting to force him off an interstate highway. The other individual never even claimed that the man had pointed the gun at him. Nevertheless, state authorities charged the gun owner with intent to "brandish a firearm" and "threatening same which served no legitimate purpose." If the federal authorities were to get involved in such a case, the gun owner could face a mandatory minimum of 10 years in prison for brandishing a firearm during and in relation to "a serious violent felony." The crime in this case is a "serious violent felony" because of the following progression: * "Serious violent felony," as defined by 18 U.S.C. 3559(c)(2)(F) includes "firearms use," which is defined by: * 18 U.S.C. 3559(c)(2)(D) as "brandishing," when that brandishing is subject to prosecution in the court of any state and has the elements described in 18 U.S.C. 924(c); * These elements include carrying a firearm during and in relation to a "crime of violence" which is defined as "the use, attempted use, or threatened use of physical force against the person or property of another." The above crime would subject a person to a 10 year mandatory minimum prison sentence under H.R. 1488, Section 3. MOREOVER, THE FACT THAT THIS SECTION IS AMENDING THE GUN OFFENSES OF TITLE 18 OF THE U.S. CODE MEANS THAT THE BATF IS NECESSARILY INVOLVED BECAUSE IT HAS JURISDICTION OVER THAT SECTION OF THE CODE. SELF-DEFENSE PROVISION NOT SUFFICIENT: This problem with Section 3 escalates when the gun owner actually fires his gun to deter a violent attack. Under this section, if prosecutors can convince a jury that a gun owner did not act within their narrow definition of self-defense, then the defender would get a MANDATORY MINIMUM sentence of 20 years! Moreover, there can often be a huge discrepancy between the way state and federal prosecutors look at self-defense cases. Examples abound where a local, anti-gun prosecutor wanted to harass a person who used a gun in self-defense, but community pressure forced them to drop the case. One wonders if federal prosecutors would be as responsive to local, community pressure. Lance Cpl. Rayna Ross is a classic example of how state and federal officials can look at the same shooting with "different eyes." Ms. Ross is a Marine living in northern Virginia. In 1994, she used her handgun to kill a man who had stalked and threatened her on several occasions. Ms. Ross shot the attacker after he forced his way into her residence in the middle of the night dressed in a black jumpsuit and armed with a bayonet. The local prosecutor declined to prosecute, calling it a "justifiable homicide." However, the Marine Corps decided to prosecute Ms. Ross and charged her with crimes that, if convicted, could imprison her for life in Fort Leavenworth, Kansas. This problem would be multiplied nationwide if federal prosecutors could seek 20 year mandatory minimums using Section 3 of H.R. 1488. While H.R. 1488 does make some allowances for people who use a firearm to protect themselves, this provision would not prevent BATF from investigating a self-defense shooting and harassing an honest gun owner in the process. Moreover, this "self-defense exception" is inferior to the laws of many states and would not protect defensive shootings that hit the attacker's back. H.R. 1488 would supersede those state laws if federal prosecutors are arguing the case. As we have seen with Bernie Goetz and others, prosecutors have not hesitated to go after persons defending themselves with firearms in life-threatening situations. Such law-abiding citizens could be liable to prosecution because a robber or mugger had momentarily turned away from the defender, perhaps to flee, or perhaps to locate a weapon. Hence, these spilt-second decisions, made in the heat of the moment, would determine whether a gun owner was, in the eyes of the law, engaged in a commendable action in defense of self, family, and others -- or whether he was a felon subject to a twenty year mandatory minimum sentence under Section 3 of this bill. FEDS TO THE RESCUE? Some House offices have claimed that the state authorities must first charge a person with a "gun crime" before the federal authorities can act. However, nowhere does the bill state this. In fact, the closest the bill comes to this claim is language that purports to give the federal government deference to the states in prosecuting gun crimes. But this language is non-binding and there are no penalties against federal officials for ignoring this section. Besides, officials can easily claim there is a compelling federal interest which allows them to usurp the state's jurisdiction. There are many examples of the federal government running roughshod over states' rights. Even if federal officials do give deference to the states, a person could still be prosecuted sequentially under both federal and state law. GOA's experience with federal interference in state tasks has taught us that the federal government will not, for long, take a "back seat" to state enforcement or policy. Finally, and perhaps most dangerous of all, Section 3 of the bill also opens the door to getting the federal government involved in ALL gun possession charges, both state and federal. Under H.R. 1488, the BATF will start enforcing gun laws -- that up until now -- have been enforced by the states. And once the Congress has stuck its legislative foot in this area, it could easily broaden its jurisdiction to all gun possession charges. The BATF would then become the gun cops enforcing every local anti-gun ordinance. As long as the law continues to criminalize mere possession of certain firearms, non-violent persons (like the children of the Weavers and the Davidians) will continue to be harassed and killed by our federal government. P.S. Following the August recess, Rep. Steve Stockman intends to file a discharge petition to force House consideration of his bill to repeal the semi-auto ban. Having already introduced the rule (H.Res. 210), Stockman has now set the wheels in motion for getting the House to vote on a pure gun ban repeal. Stockman's upcoming discharge petition will pull the "Bartlett/Stockman Assault Weapon Ban Repeal Act" (H.R. 464) out of the Judiciary committee and bring the bill to the floor for an immediate vote -- under the rule established in H.Res. 210 which prevents any and all anti-gun amendments from being offered. Stockman will need to get 218 signatures on his discharge petition before the bill, H.R. 464, can be voted on. This bulletin was posted by Gun Owners of America, 8001 Forbes Place, Suite 102, Springfield, VA 22151, (703)321-8585, 1-800-417-1486, fax: (703)321-8408. ===================================================================== The Paul Revere Network/HQ Chicago BBS (312)482-9940 (V)482-9910 -==***==- Gun Owners of America +DUAL MEMBERSHIP OFFER+ The Paul Revere Network Two Newsletters/Alerts $28 Support the Second Amendment Effort ===================================================================== __ From: LARRY.PRATT.AND.STAFF@prn-bbs.org (LARRY PRATT AND STAFF) Subject: HR 1488: Refutation of supporters claims To: firearms-alert@SHELL.PORTAL.COM, roc@xmission.com Date: Wed, 16 Aug 1995 00:49:59 GMT H.R. 1488: FICTION AND FACT by Gun Owners of America Gun Owners of America strongly supports the repeal of the semiautomatic ban. But we oppose efforts to tie that repeal to a monumental expansion of federal jurisdiction over state crimes, as section 3 of H.R. 1488 would do. Make no mistake: By extending the federal government's reach to virtually every state crime committed with a firearm, section 3 would dramatically expand the jurisdiction of the Bureau of Alcohol, Tobacco and Firearms at a time when the BATF should, instead, be a candidate for abolition. Recently, some of the arguments Gun Owners of America has made in opposition to H.R. 1488 were disputed. Some of the attacks, such as an assertion that we had suggested that H.R. 1488 constitutes unconstitutional "double jeopardy," are simply distortions of our arguments. (We do not, however, believe that regular multiple prosecutions by different levels of government arising out of the same acts, including the prosecutions in the Rodney King case, represent good policy.) In three cases, however, our attackers have correctly identified our arguments and attempted to rebut them with erroneous facts. In order to set the record straight, GOA would like to reiterate our opposition to that bill as currently drafted and to refute the erroneous charges which have been made against our analysis of the bill: 1. FACT: H.R. 1488 would federalize virtually every significant state crime involving a gun. ERRONEOUS REBUTTAL (THE erroneous statement is in ALL CAPS): "State crimes would also be included under the bill [H.R. 1488]. However, the state crime must be a 'serious violent felony or serious drug offense.' SERIOUS VIOLENT FELONIES ARE DEFINED TO INCLUDE SUCH FELONIES AS MURDER, KIDNAPPING, AND RAPE." THE TRUTH: What this statement fails to tell you is that "serious violent felony" also includes "FIREARMS USE." As a result, just brandishing a firearm to discourage an assailant could subject a person to the investigative jurisdiction of the BATF. In such a case, the gun owner could be charged with committing a "serious violent felony" and would face a 10-year mandatory minimum based on the following progression: * "Serious violent felony" includes "firearms use," which in turn, is defined to mean brandishing a firearm in connection with a federal or state crime having the elements of 18 U.S.C. 924(c); * 18 U.S.C. 924(c) punishes carrying a firearm "during and in relation to any crime of violence . . ."; * "Crime of violence" is defined to mean a felony which "has as an element the use, attempted use, or threatened use of physical force against the person or property of another..." So, at its core, H.R. 1488 imposes a ten-year mandatory minimum sentence for brandishing a firearm during and in relation to the threatened use of force against person or property. There is something fundamentally dishonest when advocates of the bill try to tell you that H.R. 1488 punishes "murder, kidnapping, and rape," but fail to tell you that it also punishes "firearms use." 2. FACT: H.R. 1488's so-called "armed criminal apprehension program" will serve as an impetus to prosecute even technical paperwork gun violations. ERRONEOUS REBUTTAL: "The bill uses language of common understanding: 'armed violent criminal.' It also references sections of the Gun Control Act that deal with committing crimes while armed and possession of guns by persons in a traditional high risk class (convicted felons)..." THE TRUTH: Although the relevant section, section 7, has been amended at GOA's instigation to apply most of its provisions to "armed violent criminals," paragraph 7(a)(3) requires that "each United States attorney ... report to the Department of Justice the number of defendants charged with, or convicted of, violating section 922(g) or 924 of title 18, United States Code..." Contrary to the representations made by advocates of the bill, section 924 of Title 18 contains the criminal penalties for virtually all federal firearms offenses -- including paperwork violations. As we have seen in the case of other federal crime reporting requirements (such as "hate crimes"), a mandate that a prosecutor report prosecutions and convictions for a particular crime creates pressure to focus attention on prosecutions and convictions in that area. As even our detractors admit, "Federal prosecutors follow the party line of the Department of Justice and call for more gun control..." 3. FACT: Under H.R. 1488, you could be subjected to a twenty year mandatory minimum sentence for actions in defense of yourself or others. ERRONEOUS REBUTTAL: "H.R. 1488 expands the protection for self-defense . . . . [A] person has more protection in federal court [in cases of self-defense] because in all felony cases a grand jury must first indict the defendant." THE TRUTH: GOA's legislative draftsman advised Congressman Bartlett on the language for the bill on which section 8 of H.R. 1488 is based. There is no doubt that section 8 deletes many of the protections contained in the original Bartlett bill (H.R. 78). For example, the new H.R. 1488 language excludes any reference to protection of self or others outside the home and prohibits the use of deadly force against a burglar in your home unless you can demonstrate that you or a member of your family was imminently endangered with serious bodily injury. There is, furthermore, no doubt that prosecutors have been increasingly aggressive in bringing cases against private citizens merely attempting to defend themselves and their families. In a recent case, for example, a Pennsylvania man who merely placed a firearm in his car seat to ward off an abusive motorist was charged for his actions. GOA has alerted our members to many of these cases where local officials have prosecuted otherwise law-abiding citizens for using a gun in self-defense. There is a difference, however, between state laws where actions exceeding a prosecutor's narrow view of self-defense will result in a year or two in jail, and a federal law (in section 3 of H.R. 1488) where similar actions will result in a ten year mandatory minimum sentence for brandishing, and a twenty year mandatory minimum sentence for actual firearms use. Moreover, there can often be a huge discrepancy between the way state and federal prosecutors look at self-defense cases. Examples abound where a local, anti-gun prosecutor wanted to harass a person who used a gun in self-defense, but community pressure forced them to drop the case. One wonders if federal prosecutors would be as responsive to local, community pressure. Lance Cpl. Rayna Ross is a classic example of how state and federal officials can look at the same shooting with "different eyes." Ms. Ross is a Marine living in northern Virginia. In 1994, she used her handgun to kill a man who had stalked and threatened her on several occasions. Ms. Ross shot the attacker after he forced his way into her residence in the middle of the night dressed in a black jumpsuit and armed with a bayonet. The local prosecutor declined to prosecute, calling it a "justifiable homicide." However, the Marine Corps decided to prosecute Ms. Ross and charged her with crimes that, if convicted, could imprison her for life in Fort Leavenworth, Kansas. This problem would be multiplied nationwide if federal prosecutors could seek 20 year mandatory minimums using section 3 of H.R. 1488. While section 3 of H.R. 1488 does make some allowances for people who use a firearm to protect themselves, this provision would not prevent BATF from investigating a self-defense shooting and harassing an honest gun owner in the process. Moreover, this "self-defense exception" is inferior to the laws of many states and would not protect defensive shootings that hit the attacker's back. H.R. 1488 would supersede those state laws if federal prosecutors are arguing the case. As we have seen with Bernie Goetz and others, prosecutors have not hesitated to go after persons defending themselves with firearms in life-threatening situations. Such law-abiding citizens could be liable to prosecution because a robber or mugger had momentarily turned away from the defender, perhaps to flee, or perhaps to locate a weapon. Hence, these spilt-second decisions, made in the heat of the moment, would determine whether a gun owner was, in the eyes of the law, engaged in a commendable action in defense of self, family, and others -- or whether he was a felon subject to a twenty year mandatory minimum sentence under section 3 of this bill. Finally, the notion that a grand jury -- normally a wholly owned subsidiary of a prosecutor -- constitutes some enormous protection of a federal defendant would be regarded as laughable by any practicing attorney. The grand jury has often been called a mere rubber stamp for the prosecutor and understandably so, as it only hears one side of the story -- the prosecutor's. Over the next two years, there will be ample opportunity to repeal the semi-automatic ban and the Brady bill. After January 1997, we can do this with no fear of a veto threat. It is neither necessary nor desirable to offer "bribes" to the anti-gun zealots by offering to expand BATF jurisdiction in exchange for a repeal of these unconstitutional laws. This bulletin was posted by Gun Owners of America, 8001 Forbes Place, Suite 102, Springfield, VA 22151, (703)321-8585, 1-800-417-1486, fax: (703)321-8408. ===================================================================== The Paul Revere Network/HQ Chicago BBS (312)482-9940 (V)482-9910 -==***==- Gun Owners of America +DUAL MEMBERSHIP OFFER+ The Paul Revere Network Two Newsletters/Alerts $28 Support the Second Amendment Effort =====================================================================