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The Gottlieb-Tartaro Report
Issue 026
February, 1997
Domestic Violence Gun Ban Tops FOP Agenda
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Also in this issue: Stephen P. Halbrook replies -- NRA leadership fight and IRS audit -- The new Congress so far -- Bureau of Land Management proposing anti-gun rules -- Oops! Girlfriend shoots trooper’s rear end -- California Attorney General speaks out in our Page Eight "Parting Shot."
Dear Subscriber,The uproar over the “Domestic Violence Offender Gun Ban” is getting louder. The Fraternal Order of Police (FOP) is scrambling to amend the law that went into effect last September and bans gun ownership for anyone convicted of a misdemeanor crime of domestic violence. Law enforcement officers, who appear to have more of these convictions than the general public, are losing their jobs because they can no longer carry guns. Our insider sources intercepted Internet transmissions of the FOP’s internal discussion on the issue by lobbyist Tim Richardson. Highlights:
“The new Federal law imposes a firearms disability on any person convicted at any time of a misdemeanor crime involving domestic violence. The law also disabled police officers and members of the armed forces, who have been statutorily exempt from the Gun Control Act of 1968, and all its amendments, when on-duty or deployed. Obviously, there was quite a reaction from the law enforcement community, particularly after the release of the ATF guidelines shortly before Thanksgiving.
“The FOP Executive Board met with Attorney General Janet Reno in mid-December to discuss the issue. The Board also spoke with Congressman Bob Barr (R-GA), who was the principal figure in including the ban and specifically the nonexemption for police officers and military personnel....
“On 7 January, the 105th Congress was sworn in and Representative BARR introduced HR 26, which amends the Lautenberg Gun Ban. It would apply the firearms disability to persons convicted on or after the date of enactment—not previous convictions. The disability would become prospective for all citizens, with no special treatment for police officers....
“In addition, Congressman Bart Stupak (D-MI) offered another bill addressing the issue, HR 445. This amendment to the Lautenberg Gun Ban would fully restore the exemption for government entities—police officers and the military, who would be exempt from the ban. The law would still apply a firearms disability on all other persons regardless of the date of conviction. The Executive Board and Board of Trustees after getting feedback from the membership did not feel that we could argue for a “special” or “elite” class of domestic abusers—for that is how we may be characterized judging from the extremely political nature of the issues involved. The FOP has chosen to support the BARR bill, and have notified Congressman Stupak that we sincerely appreciate his efforts to work on behalf of law enforcement by addressing this issue....
“In addition, since the opposition of the FOP to the original legislation was due in large part to doubts regarding its constitutionality, we have filed a lawsuit to block the enforcement of the gun ban. The FOP filed for an injunction in a Federal court in Washington, DC. We are pressing ahead with both judicial and legislative relief for our officers....
Gil Gallegos, FOP National President, will testify in favor of HR 26. A legislative remedy for this issue is at the very top of the FOP’s legislative agenda.”
ATTORNEY REPLIES In our last issue, we ran an article titled “AT THE SUPREME COURT LISTENING TO THE BRADY CASE” in which one of our insider sources stated his professional opinion that an attorney for the plaintiffs, Stephen P. Halbrook, Ph.D., during a generally successful argument, made a tactical error that irritated several Justices. Dr. Halbrook sent us this reply, which we reprint in its entirety:
“Gentlemen:
“The reader would never know from the article in your January issue by an unidentified “insider” that our oral argument in Sheriffs Jay Printz and Richard Mack v. United States, the challenge to the Brady Act, was generally well received by the U.S. Supreme Court. This Monday morning quarterback claims that I incorrectly stated that the States may not be required to make criminal records available to federal officials. Actually, both the questions and my responses are more complex than the “insider” stated.
“Had the “insider” been familiar with Supreme Court operations, he would have known that the official transcript is available shortly after argument, not after the case is decided. As the transcript reflects, I was asked about both private and public criminal records, in the contexts both of whether the States could be required to make the records available and whether federal agents could demand entry onto State premises to review records. My response was that we had no objection to access to public records or to subpoenas, and that today State and federal law enforcement officials voluntarily share records.
“However, I maintained that no constitutional authority exists for the federal government to command the States, with no option, to produce records, any more than the States could issue such commands to the federal government. Criminal records are not commercial records, so that the Commerce Clause would not justify such a command.
“While several Justices expressed disagreement, the Court, after all, ruled in New York v. United States (1992) that the States are not regional offices of the federal bureaucracy. I wonder if the “insider” would argue that the Constitution authorizes federal agents to demand entry and to rummage through local law enforcement records? I don’t think that our sheriffs would agree with that. Further, had I conceded that the States can be required to produce records because it would be “de minimis,” what would be left to our objections to the Brady Act commands, which the government argues are “de minimis”? I challenge the “insider” to state the constitutional basis for requiring the States to report information or to open their offices to random federal snooping.
“Perhaps the ”insider” would reveal his identity, and inform your readers whether he has ever successfully argued a single federal appeal.
“The Justices were far more receptive to our arguments on the merits than to those of the government. We will see what the Court has to say this Spring.”
Sincerely, Stephen P. Halbrook
While we decline to reveal the identity of the insider, we can assure our readers that he has indeed successfully argued federal appeals—and counts himself a big fan of Stephen Halbrook.
It is the editorial policy of the Gottlieb-Tartaro Report to present gun rights issues, no matter how controversial, with accuracy and fairness. We welcome replies to our articles so that readers may be fully informed.
NATIONAL RIFLE ASSOCIATION TROUBLES The nation’s largest gun lobby faces two turbulent battles at once this month: Dissident forces led by Neal Knox are attempting to remove NRA Executive Vice President Wayne LaPierre Jr. through a board of directors bylaws vote at the same time the Internal Revenue Service is conducting a severe audit of the non-profit organization.
After three years of financial woes and policy wrangles, LaPierre’s leadership has come into question and Neal Knox supporters are trying to find a majority of board members who will vote to end his tenure. LaPIERRE has weathered storms before, but this time it looks to many insiders like a matter of when, not if, he will depart. We won’t count him out until we see him cleaning out his desk.
If this month’s board meeting does not bring a showdown, the next quarterly meeting probably will. Observers speculate that if LaPIERRE goes and NEAL KNOX is selected to replace him, it will likely be in a caretaker role while the board conducts an executive search for a permanent replacement.
Adding to the urgency of this struggle is an IRS audit that began in 1995 after President CLINTON publicly lashed out at the NRA, blaming it for the Republican takeover of Congress in the 1994 elections. The audit was slated to last two years, costing the group about $1 million a year in legal fees, office space and related expenses, according to Wilson H. Phillips Jr, NRA Treasurer and chief financial officer.
The NRA is one of about a dozen conservative public policy groups the IRS has chosen to audit since 1994. The groups have all opposed CLINTON Administration policies. An internal White House report mentions two of the groups as being responsible for negative news stories about the president and first lady HILLARY CLINTON.
The latest twist in the IRS drama is their demand that the NRA turn over its confidential membership list. NRA officials are refusing to do so. PHILLIPS told the media that the dispute over access to the names and addresses of dues-paying NRA members will most likely end up in court. The list contains 2.8 million names.
Years ago the IRS similarly demanded the membership list of the Citizens Committee for the Right to Keep and Bear Arms and the Second Amendment Foundation, but lost in a court battle.
IRS critics contend that demanding membership lists is a politically-motivated harassing tactic to scare members away and frighten potential members from joining.
None of the other conservative groups currently being audited by the IRS has been asked for its membership list.
The NRA is not getting the usual audit, which is difficult enough, but is being subjected to a far-reaching team approach called a Coordinated Examination Program (CEP), in which IRS officials set up housekeeping in NRA headquarters and demand huge numbers of documents.
The CEP is normally reserved for non-profit groups with offices in a number of different geographic locations and which have assets or incomes exceeding $50 million. NRA’s net worth has been estimated at $85 million.
The NRA is a non-profit group that by law is allowed to lobby legislatures, but also operates foundations for which donations are tax-deductible. The foundations, operated under the U.S. Tax Code’s section 501(c)(3), are strictly limited in the amount of lobbying they are allowed to do. The IRS is scrutinizing NRA foundations to make sure they are not involved in lobbying beyond legal limits or in electoral politics, which is completely forbidden.
Insiders are concerned that the IRS may strip NRA foundations of their tax-deductible status, which would create serious problems for the group.
Gun rights supporters everywhere wish the NRA well in the coming months of stress.
WHAT’S HAPPENING IN THE 105TH CONGRESS Since the new Congress convened on January 7, the anti-gun crowd has been busy with a new assault on our gun rights. Only two days into the session, Senators Barbara Boxer (D-CA) and Dick Durbin (D-IL) introduced the “American Handgun Standards Act of 1997.” No, it’s not a new call for better shooting accuracy or weapon operation. It’s just a fancy new name for Sen. Boxer’s same old 1996 “junk guns” bill. It seeks to ban “inexpensive, easily concealable guns made of inferior materials.” Rep. Charles Schumer (D-NY) introduced Boxer’s bill in the House of Representatives, no surprise to gun owners who know the anti-gun congressman.
A new rule in Congress promises to help pro-gun rights advocates who must compete in testimony before congressional committees with anti-gunners who receive government funding. The rule requires organizations that receive government funding to disclose the amount they received and the government source that supplied the funds prior to providing testimony for or against any legislation. The AFL-CIO and American Bar Association are only two of the many anti-gun groups that receive heavy funding from taxpayer dollars and who actively lobby the government. Gun groups such as the Citizens Committee for the Right to Keep and Bear Arms receive no taxpayer funding at all. They rely on the generous donations of grassroots supporters to sustain legislative and political activities. The new rule requiring groups to reveal how much money they get from government before they testify for or against a bill is a good first step toward ending the practice of using taxpayer dollars to lobby against Second Amendment rights.
Rep. Cliff Stearns (R-FL) introduced H.R. 339, the national right to carry reciprocity bill. It would allow citizens permitted to carry firearms in their home states to carry firearms in all other states, including states that currently prohibit carrying concealed firearms, such as Kansas, Nebraska and Ohio.
Another pro-self defense bill was reintroduced by Rep. Roscoe Bartlett (R-MD) as H.R. 27, “The Citizens’ Self-Defense Act,” which is virtually identical to a past bill filed by Rep. Bartlett. It prohibits the government from preventing individuals needing firearms to protect themselves or their families from obtaining them.
AROUND THE STATES Connecticut: Proposed Bill 590, legislation to protect shooting ranges from noise control ordinances or nuisance actions aimed at shutting them down. Referred to the Senate Judiciary Committee.
Oklahoma: More hearings are being held by the Department of Wildlife Conservation on safety guidelines for shooting ranges that could prevent lawsuits to shut them down.
Ohio: The Toledo City Council voted 11-0 against sending Mayor Finkbeiner’s anti-gun proposal to the committee, a proposal which included gun bans, licensing and registration, and mandatory storage requirements. The mayor has voewd to resubmit his proposal.
Mississippi: H 33, a right to carry reform bill, is awaiting action in the House Judiciary B committee. It would reduce the time for which permits are currently issued and requires Mississippi to recognize out of state permits if the permit is issued by a state that recognizes Mississippi permits.
Nebraska: LB 465, right to carry legislation, introduced by Sen. Stan Schellpeper. LB 350, legislation protecting shooting ranges from certain noise ordinances and nuisance actions aimed at shutting them down introduced by Sen. Jennie Robak.
Texas: SB 204 and HB 461, right to carry reform bills introduced. Rolls back restrictions on where licensees may lawfully carry, preempts local regulation of licese holders and sets up reciprocal licensing provisions for non-residents who travel through or visit Texas.
BUREAU OF LAND MANAGEMENT RESTRICTING GUN RIGHTS The Bureau of Land Management (BLM) has many interests worried with its proposed rule published in the Federal Register on November 7, 1996 concerning the revision and consolidation of the bureau’s law enforcement regulations. Gun owners are particularly concerned over the proposed consolidation’s effect on gun rights.
The new rules are written in such a confusing way that it is impossible to answer such basic questions as: “Can you use a gun to hunt on BLM land?” and “Can you use a gun in self defense on BLM land?”
The confusion has already led the BLM to give two extensions of the comment period. A third extension of 30 to 60 days is being considered and may soon be granted.
The proposed consolidation would theoretically place all the rules governing BLM lands in one area of the Code of Federal Regulations (CFR). The rules are now scattered in several areas of the CFR according to specific subject matter.
The purpose for the consolidation, according to the BLM, is to “help the public and Federal, State and local agencies to understand the scope of BLM law enforcement authority.” The justification for this massive change is “streamlining” and “efficiency,” but the task of gathering thousands of detailed rules into one area of the CFR is so large as to be impossible, a fact the BLM admits of page 57605 of the proposed rule: “it is not possible to completely consolidate all of BLM’s regulations which impose requirements on the public, the knowing and wilful violation of which would subject a person to criminal penalties.”
Common sense tells us that such a patchwork consolidation would lead to confusion rather than understanding, and that is exactly what has happened.
But there are worse problems than mere confusion, even though that could lead the public to unknowingly violate rules with criminal penalties. Gun Owners of America (GOA) has released an alert notifying gun owners that Section 9262.7(b) of the new rules would outlaw “discharging a firearm...within 150 yards of a residence, building, campsite, recreation site or occupied area....”
This section alone is so overbroad it could restrict Second Amendment rights. GOA pointed out the following problems with this section:
1. It is virtually impossible for a hunter to be certain that he is not within 150 yards of an abandoned shack, another hunter’s campsite or some vaguely defined “recreation area.” Shooting under any of these circumstances could subject the hunter to criminal liability.
2. Hunters frequently hunt in groups. Does this make the hunting site an “occupied area”?
3. The rule seems to suggest that a hunter cannot hunt within 150 yards of his own campsite.
In addition, most state laws have an exemption for self defense against attack by man or beast, but the proposed BLM rule has none.
A real red flag is a provision of the proposed rule that would allow BLM to “search without warrant or process any person, place, or vehicle according to any Federal law or rule of law; and ... seize without warrant or process any piece of evidence as provided by Federal law.”
Another serious problem with the proposed consolidation is that it appears to contain substantive changes in the rules, not just shuffling existing rules into one place. In the precursor of the Section 9262.7(b) regulation, there is no mention of the discharge of firearms at all. In the proposed “consolidation,” the vague rule quoted above appears. Where did it come from? It looks to us like a substantive change in the rules, not a consolidation of existing rules, and that would require separate public comment as “proposed rulemaking.”
This raises the legitimate question of whether the BLM is attempting to impose new regulations without acknowledging to the public that it is doing so—and without proper administrative procedures.
It is not an unreasonable stretch to think that the proposed consolidation is intended to restrict and impede safe and otherwise lawful hunting and target shooting on BLM lands, a sort of backdoor gun control policy the administration is trying to sneak in with a mass of confusing changes.
GUN POLL GENERATES CONFLICTING ANSWERS One-fourth of American kids have access to a gun. That’s what Prevention magazine says it found in a poll it recently released. Nearly half of American children ages 10 to 17 say there is a gun in their home and about one-fourth told pollsters they have access to it. However, only 12 percent of parents report that a firearm in their home is accessible to their children, meaning many parents may be unaware or unwilling to admit that their kids can get to their guns.
Prevention magazine has its own anti-gun agenda, so they assumed the parents were lying and not the kids.
NEW ABC “GUN” SHOW GENERATES CONFLICTING ANSWERS As usual, there’s a new series coming to television. This one is ABC’s “Gun.” The star of the show is a pearl-handled Colt .45 semiautomatic pistol. The series uses the storytelling style known as la ronde (“making the rounds”) that follows the pistol from one owner / handler to another in each show. Different episodes will have different directors and different actors. The premise of the series is that the gun dramatically affects the lives of everyone it touches.
Some of the stars already lined up: Rosanna Arquette, Darryl Hannah, Peter Horton, Randy Quaid, Jennifer Tilly and Sean Young. The directors include Robert Altman (“M*A*S*H,” “The Player,” “Nashville”), Tim Robbins and Ted Demme.
TV hype has become so common that hardly anyone bats an eye at the most bizarre statements by network producers anymore, but the advance publicity for “Gun” made even the media do a double take.
When discussing whether the new series will have a political agenda, ABC gave us this mind-bender:
Executive producer Robert Altman said: “I’m very active in gun control issues and areas, and this in no way is going to promote anything other than the philosophy that the gun control people advocate.”
James Sadworth, another executive producer, said, “This is a non-political show, with non-political themes, just the way “Hitchcock” or “Twilight Zone” or “Playhouse 90” were non-political, and we don’t have an agenda one way or the other.”
Is anyone taking bets on whether this will be a pro-gun or anti-gun show when it premieres in May?
NEW BEN & JERRY’S EXECUTIVE ANNOUNCEMENT GENERATES CONFLICTING ANSWERS What does this mean? Ice cream maker Ben & Jerry’s Homemade Inc. hired Perry Odak, a former executive of the firm that makes Winchester rifles, to be its new CEO. Co-founder Ben Cohen said ODAK seemed “very much aligned” with the social mission of the company. Ben & Jerry’s has a history of supporting anti-gun organizations.
WOMAN SHOOTS TROOPER WITH HIS OWN HANDGUN An Indiana State Police trooper had red cheeks after his girlfriend accidentally shot him in the buttocks. The embarrassing incident took place when Matt Dillon, 27, was at his residence with his girlfriend, Dana Thomas, 25, in the Mission Viejo apartments on Evansville’s West Side one recent afternoon.
According to state police, DILLON unloaded his 9mm handgun so that THOMAS could look at it, then reloaded it and put it on his bedroom desk.
THOMAS picked it up, not realizing it had been reloaded, and aimed at DILLON. She squeezed the trigger and a bullet struck him in the right buttocks, exiting though the upper thigh.
The wounded trooper was taken to a local hospital where he was listed in fair and stable condition.
The Vanderburgh County Sheriff’s Department is investigating the shooting, but they say it appears to be an accident and that THOMAS was “horsing around.”
ANTI-GUN CONGRESSMAN SCHUMER ISN’T GOING AWAY Rep. Charles Schumer (D-NY), one of the most anti-gun members of Congress, has been reported to be considering a gubernatorial challenge to Gov. George Pataki (R) in 1998. If he wins, that would at least get him out of Congress.
But a recent story in the Nagourney Times says that Schumer may try to unseat Republican Sen. Alfonse D’Amato instead.
Unfortunately for gun owners, Schumer has nearly $5 million in unspent campaign funds, which puts him in an enviable position to plot his future political course.
COLORADO SCORES IN BOTH NATIONAL PARTY COMMITTEES When the Republican National Committee and the Democratic National Committee elected their respective chairs, both winners came from Colorado. For the Republican, it was Colorado RNC member Jim Nicholson as Chair, succeeding Haley Barbour. For the Democrats, it was Colorado Governor Roy Romer as General Chairman.
ROMER is a well-known and outspoken anti-gun advocate. Because of a term limits law in Colorado, ROMER can’t seek another term in 1998, and may be a challenger to Republican Sen. Ben Nighthorse Campbell.
Mr. Nicholson appears to be a supporter of our Second Amendment rights.
NEW YORK CITY GUN PERMIT SCANDAL WIDENS The commander of the New York City police department’s gun permit office was recently suspended and faces administrative charges for providing “preferential treatment” in issuing permits. Anyone familiar with New York City’s discriminatory permit system is likely to think such a scandal was inevitable. Average NYC gun owners have been subjected to long bureaucratic delays and arbitrary denials while the elite like Donald Trump are able to easily obtain permits. The New York Post recently reported that the commander is not the only one in trouble: a captain, two lieutenants, a sergeant and one other officer are likely to be transferred. The office will be run by the internal affairs staff until the probe is finished.
MORE ON THE NRA FRAY According to a recent report in the pro-gun Washington Times, NEAL KNOX may be aiming to end more than WAYNE LaPIERRE’s tenure as NRA executive vice president.
LaPIERRE’s term is up in May, and KNOX has been campaigning to have him terminated (see our page 3 story).
Citing an article in the National Journal, the Times said, “KNOX may also try to remove TANYA K. METAKSA, the NRA’s chief lobbyist.”
KNOX, a long-time board member and first vice president of NRA, was briefly the group’s top lobbyist in the early 1980s.
FORMER CLINTON OFFICIAL: THE BRADY ACT DIDN’T CAUSE THE CRIME DECLINE Philip Heymann, former deputy attorney general in the Clinton Administration, made a startling statement when he briefed newly elected members of Congress on crime issues.
HEYMANN said he had “decided three risks had to be emphasized. The risks are ignorance, arrogance and misplaced complacency in the form of unwillingness to take the chance of trying new things.”
Then HEYMANN told them what he meant by that: “The clearest way to argue for federal modesty in dealing with crime is to point out that where we’re seeing dramatic success it’s the result of local initiative.
“New York’s new policing, designed by Commissioner William Bratton ... has reduced crime so remarkably that much of the national turnaround is attributable to this alone....
“None of this is the result of the president’s temporary new cops, nor of the Brady Act, for most guns were never bought by youth from licenced gun dealers.”
Plain talk.
CALIFORNIA ATTORNEY GENERAL CALLS “SATURDAY NIGHT SPECIAL” GUN BAN ELITIST Parting Shot...
Dan Lungren is Attorney General of California and the top Republican candidate for governor next year. He recently entered the noisy debate over local ordinances banning the sale of cheap pistols called by the media “Saturday Night Specials,” announcing his opposition to them and predicting that they will eventually be overturned by the courts because only the state can regulate firearms sales.
“I think it’s somewhat elitist,” LUNGREN said of the laws. “I can never understand how it would make sense if you’re a middle-class or upper-class Californian and you can afford to spend $500 or $1000 [on a gun] that’s legal but if you don’t happen to have that kind of money and can only spend $50 or $100 for a weapon to defend yourself in your home from a criminal, it would be illegal. I don’t understand that.”
LUNGREN said he would prefer to see tougher laws for criminals who use weapons in crime.
The Attorney General’s office has published a legal opinion saying such ordinances are preempted by state laws. The California Legislative Council, the attorneys for the California Legislature, has also issued a formal opinion holding that the ordinances are preempted.
The gun ban ordinances of local communities in California including West Hollywood were engineered by Handgun Control Inc. (HCI) as part of their gun control campaign. Late last month another town rejected such a proposed ordinance, further slowing the momentum of these laws around the state. Long Beach City Council voted 6 to 3 to reject the “Saturday Night Special” ban drafted by lawyers with HCI.
Livermore, Santa Clara, Vallejo and Dublin have all rejected the ban. Most recently Pasadena and Sierra Madre voted it down, prompting Sen. Barbara Boxer to hold a press conference in Long Beach to urge a vote for the ordinance and drum up support for the federal ban on “junk guns.”
Boxer’s federal ban could be used to prohibit the sale of any gun that the BATF determines is not “particularly suitable for or readily adaptable to sporting purposes.”
Four of the eight Long Beach City Council members are present or former law enforcement officers who understand crime and firearms technology. The City’s Public Safety Committee was flooded with HCI claims that were later shown to be distortions or outright falsehoods. The committee’s chair, Councilman Mike Donelson, told the council that based on his study of the issue, the ban would “not save one life.”
Keep your eye on DAN LUNGREN. We’ll be seeing more of him.
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