What is the "Lautenberg gun ban," and why is Bob Barr being blamed for it? by George Dance
(libertarian)
Sunday, August 24, 2008
Gun rights advocate David Codrea is an angry guy. For one thing, he is angry about what has happened to Second Amendment rights in America: Just seeing the title of his blog, The War on Guns, is enough to tell one that.
Lately, though, Codrea has been especially angry at Libertarian Party presidential candidate Bob Barr. That anger has several reasons:
(I) As a freshman Congressman in 1996, Barr voted for the Omnibus Consolidated Appropriations Act of 1997, "an appropriations bill which contained two pieces of pernicious gun control: The Lautenberg gun ban which disarms gun owners for small (misdemeanor) offenses in the home ... and The Kohl gun ban which creates a virtual one-half mile wide "gun free" circle around every American school." (1)
(II) There is some evidence that Barr supported, and even partly wrote, the Lautenberg ban. In a Sept. 1996 letter, Barr stated that "The Lautenberg amendment with the Barr language is strong protection for women and children." In an October letter to the editor, he claimed that "My language" saved the ban from being ruled unconstitutional. In a March, 1997, USA Today piece, "Don't Wink at Violence," he praised it as "worthwhile and important legislation," declaring "we cannot allow its effectiveness to be reduced." (2)
(III) Despite explicitly disavowing some past views and votes since joining the Libertarians in 2006, Barr has never dealt with the Lautenberg ban. Hence Codrea dismisses my previous report on "Bob Barr's Gun Record" because "George Dance addresses Lautenberg, but totally avoids Bob Barr's refusal to repudiate it and apologize." (3)
(IV) After pursuing this issue with the campaign for months, Codrea has gotten nowhere. As he tells it: "My first post was May 29. The initial open letter was sent on May 30 copying both the Barr campaign and LP. Another email to both was sent on June 20 then June 24, and another just the other day. I know this issue is appearing on all kinds of blogs and many people are copying me on their emails--to specific people in your campaign, not just the "info" edress. I see the Lew Rockwell blog just picked it up as well. The campaign knows about this." (4) Yet not one of Codrea's emails has had an answer.
Besides sending emails, Codrea hit on a novel way to publicize the issue on other blogs: he held a Bob Barr Lautenberg Ban poster contest. Some of the entries are quite good as propaganda (though I find none of them as effective in spreading the "Barr is evil" meme as this one.)
Codrea's frustration reached the point that he recently confronted the candidate's son and spokesman, Derek Barr, on a Good Sense live blog. However, Codrea asked Derek the wrong question: Not "What is Barr's position on the Lautenberg ban?", but "Why is the Barr campaign and Libertarian Party not replying to email inquiries about his support for the Lautenberg gun ban?" That allowed Derek to talk about email instead: "We get thousands of emails everyday and our volunteers are working their way through all of them ... they [the LP] are as short staff as we are. So we could use your volunteer help." Which led Codrea to dash off a follow-up, ending: "Fine. Leave with this: Will your campaign address this? Yes or no? When?" (4)
My prediction is: No. As I see it, Barr confirmed that in his July Second Amendment campaign issue paper, which states: "I oppose any law requiring registration of, or restricting the ownership, manufacture, or transfer or sale of firearms or ammunition to law-abiding citizens." (5) By restricting his message to gun ownership etc. by "law-abiding citizens," Barr is saying that he does not want to be talking about the question of gun ownership etc. by convicted criminals.
That is irrespective of whether Barr personally supports or opposes the ban. It is one thing to believe a position, and another to campaign on it. It would throw the campaign seriously off message if it began to generate headlines like this (from the actual title of a 1997 Violence Policy Center news release): "Bob Barr to Put Guns Back Into the Hands of Wife Beaters and Child Abusers." (6)
Still, libertarians and Second Amendment supporters who hear about the Lautenberg ban will have questions and want answers. What was Barr's role in passing the gun ban? Did he in fact support it? Has he in fact never repudiated it? The campaign's failure to answer those questions does not prevent anyone from looking for the answers themselves. Of course, if one is like me, starting from almost total ignorance, that includes answering even the most basic question: What exactly is this "Lautenberg gun ban"?
What is the Lautenberg gun ban?
The Lautenberg gun ban (legal title: The Domestic Violence Offender Gun Ban) is an amendment to the 1968 Gun Control Act. "The Gun Control Act of 1968 (GCA) is codified in 18 U.S.C. Sect. 922. Section 922(g) of the GCA delineates nine classes of individuals who are prohibited from shipping, transporting, possessing or receiving firearms or ammunition in interstate commerce.
These targeted individuals include persons convicted of a crime punishable by a term of imprisonment exceeding one year; fugitives from justice; individuals who are unlawful users or addicts of any controlled substance; persons legally determined to be mental defective, or who have been committed to a mental institution; aliens illegally or unlawfully in the United States, as well as those who have been admitted pursuant to a nonimmigrant visa; individuals who have been discharged dishonorably from the Armed Forces; persons who have renounced United States citizenship; individuals subject to a pertinent court order (i.e. a restraining order); and finally, persons who have been convicted of a misdemeanor domestic violence offense.
It is this ninth disqualification category that is commonly referred to as the Lautenberg Amendment." (7)
The Lautenberg amendment "was designed to close a loophole in that 1968 law, which prohibits people with felonies from carrying guns. The loophole is that in most states, domestic violence is a misdemeanor, not a felony subject to the old law. And even where it is considered a felony, plea bargains have frequently reduced it to a misdemeanor." (8)
Unless a convicted misdemeanant can secure a pardon or have his or her record expunged, the Lautenberg gun ban is for life. Those who violate it commit a federal felony, punishable by a fine of up to $250,000 and/or 10 years' imprisonment -- "longer than the average convicted murderer serves in this country." (9)
The ban is also retroactive: those convicted of domestic violence (DV) offenses years, and even decades, before it was passed are prohibited from possessing a gun. That looks like its most pernicious feature. As James Bovard noted at the time: "Bogus charges of domestic violence are routinely used as tactics in divorce proceedings, and many people who plea-bargained 20 years ago on such a charge and paid a small court fine (instead of spending $5,000 in legal fees to defend themselves) will be surprised to discover that they have lost one of their constitutional rights." (9)
Alan Korwin (author of Gun Laws in America) cites eight possible constitutional problems with the Lautenberg ban:
it is ex post facto: a law passed after the fact to affect your former actions (banned by Art. 1, Sec. 9);
it impacts the right to keep and bear arms (2nd Amendment);
legally owned property becomes subject to automatic seizure (banned by the 4th Amendment);
it holds people accountable to a felony without a Grand Jury indictment, represents a second punishment for a single offense creating a double jeopardy, and it requires dispossession of personal property without compensation or due process (all prohibited by the 5th Amendment);
it denies your right to be informed of an accusation, and to counsel and a public jury trial, because an existing misdemeanor now automatically creates a federal felony (prohibited by the 6th Amendment);
using a misdemeanor (a minor infraction) instead of a felony (a serious crime) to deny civil rights may be cruel and unusual punishment (8th Amendment);
family conflicts, historically an issue at the state level, becomes federalized (prohibited by the 10th Amendment); and
it denies due process, abridges the rights of U.S. citizens by state law, and denies equal protection under the law. (violates 14th Amendment guarantees). (10)
Proponents of the Lautenberg ban argue that it prevents scenarios like this:
Imagine a court reducing a domestic violence felony to a misdemeanor because the judge does not want to give a "noncriminal" male a felony conviction merely for attacking his wife. Imagine further that as a result of this judicial reluctance, the court sentences the defendant to serve his time only on weekends. The defendant is then released. Subsequently, he goes home and attacks his wife again. This time he attacks her with a gun. This time he kills her. (11)
While its opponents point to actual DV cases like these:
A Delaware member of GOA testified in Congress as to how the Lautenberg gun ban had disarmed him for life -- simply because he swatted his child with an open hand on the buttocks. At the time, this father was going through an ugly divorce, and so his estranged wife, with the encouragement of her mother, reported the man to the police for child abuse. After a nasty court battle, this father was forced to accept a domestic violence misdemeanor conviction. He has sold his firearms collection and is now disarmed for life by the Lautenberg gun ban, simply because he spanked his child. (12)
A young man in Ohio can never own a gun or become a cop because he got into a screaming match with his dad 10 years ago. His dad wanted to teach him a lesson and got him thrown in the slammer for the night. But then, officials hit him with a domestic violence misdemeanor -- over the objections of the father. Now the son is disarmed for life and is unable to pursue his dream of becoming a law enforcement officer. (13)
Several years ago, another GOA member slapped her husband in anger -- in front of the police. Now this Georgia woman has a domestic violence misdemeanor and is disarmed for life. (13)
In Fairfax County, Virginia, a wife (Judy) was carted off to the police station for slightly tearing her husband's pocket -- even though her husband refused to press charges. The husband, Tom, states he had only called the police to get "documentation in a custody dispute." Nevertheless, Virginia's zero-tolerance law requires the police to press charges in such cases. For Judy to plea-bargain to a misdemeanor and pay a minimal fine means that she forfeits her Second Amendment rights forever because of the Lautenberg ban. (12)
The Washington Post Magazine reports that twenty-one year old Lora lost her temper and flung an empty water bottle and her car keys. Unfortunately for her, the car keys landed near her mother. For that, Lora was arrested, booked, and told she must not have any contact with her mom for three days, even though she was still living at home ... if Lora pays a $25 fine -- just to get the issue "behind her" -- she loses her gun rights forever. (12)
The ban was a brainchild of the Clinton White House. "President Bill Clinton initially proposed the gun ban during his train trip to the Democratic Convention in August" of 1996. (14) Shortly, afterward, Frank Lautenberg (D-NJ) introduced it in the Senate, where it passed 97-2. (As a point of trivia, John McCain voted in favor.) It was then tacked on to the 1997 appropriations bill, and rushed through the House "during the feverish last days of the 104th Congress showdown." (15)
(1) Erich Pratt, "Bob Barr: The Transformation of a Former Republican," Gun Owners of America (accessed Aug. 7, 2008). http://www.gunowners.org/pres08/barr.htm
(2) David Codrea, "Don't Wink at Gun Owners," The War on Guns, May 30, 2008. http://waronguns.blogspot.com/2008/05/dont-wink-at-gun-owners.html
(3) David Codrea, "Bob Barr's (Incomplete) Gun Record," War on Guns, Aug. 7, 2008. http://waronguns.blogspot.com/2008/08/bob-barrs-incomplete-gun-record.html
(4) "Live Blog a Success," Good Sense, July 3, 2008. http://goodsense-va.blogspot.com/2008/07/live-blog-success.html
(5) "Bob Barr on: the Second Amendment," Bob Barr 2008 (accessed Aug. 12, 2008). http://www.bobbarr2008.com/issues/second-amendment/
(7) Matthew A. Radefeld, "Ever heard of the Lautenberg Amendment? You're not alone," Bnet Business Network, Nov 5, 2005. http://findarticles.com/p/articles/mi_qn4181/is_20051105/ai_n15763562
(10) Alan Korwin, "The Misdemeanor Gun Ban," Gunlaws.com (accessed Aug. 22, 2008). http://www.gunlaws.com/misgb.htm
(11) Jessica A. Golden, "Examining the Lautenberg Amendment in the civilian and military contexts: congressional overreaching, statutory vagueness, ex post facto violations, and implementational flaws," Fordham Urban Law Journal, Oct. 1, 2001. http://www.accessmylibrary.com/coms2/summary_0286-27299031_ITM
(12) "House Moves McCarthy Bill To Give FBI Access To Billions Of Your Personal Records -- In Order To Seize Your Guns," Gun Owners of America, Jun. 1, 2006 http://www.gunowners.org/a060106.htm
(13) "GOA Letter to Bob Barr," Gun Owners of America, Feb. 21, 1997. http://www.gunowners.org/klbarlet.htm
(14) "Gun ban endorsed," Associated Press, Oct. 1, 1996. http://www.thepost.ohiou.edu/archives/archives/100196/gun.html
The views expressed
in this article are those of George Dance only and
do not represent the views of Nolan Chart, LLC or its affiliates.
George Dance is solely responsible for the contents
of this article and is not an employee or otherwise affiliated
with Nolan Chart, LLC in his/her role as a columnist.
It is all very well for Bob Barr to disavow his previous (pre - 2006) voting record as misguided, but what has he done since then to set these mis-steps right? If you or I make a mistake in judgement and do something that harms the rights of others, we are expected to make amends after recognizing the error. I see no record of Mr. Barr even attempting to reverse or reduce the effects of any of his many "errors of judgement" made since 1996. I believe this may be why many of the grassroots Libertarians distrust him so much. He should have been trying to reverse the damage his legislative record has done, not just issuing apologia ad nauseum.
I see the whole apologies bit as meaningless ritual myself; it's the politically correct thing, but it doesn't achieve anything.
But as for Barr attempting to "reverse or reduce" the effects of many such votes, there's evidence for those willing to look.
On the Lautenberg ban, you can look at part II of this article, which points out the ways he tried to mitigate it from the beginning, plus the two repeal bills he co-sponsored in 2003 and 2004.
On the PATRIOT Act, you can look as far back as 2002, when Barr got the sunset clauses put in. Thanks to him, the worst parts of that Act could be gone by the end of 2009. You can also google "Patriots to Restore Checks and Balances" and "American Freedom Agenda," the two organizations Barr co-founded to oppose PATRIOT Act excesses and other civil-liberties abuses.
Even on the issue on which Barr's votes were most "misguided," medical marijuana, there's evidence that he's worked to reverse the damage. For instance, the statement of Rob Kampia of the Marijuana Policy Project, in May this year, that "Bob Barr has done more to roll back the federal war on drugs than almost anyone I know in the country."
Want to comment on
this article? Leave your comment
here. Your email address is required to track your
comment. However, we will neither publish your email
address nor distribute it to other organizations or
persons. The only reason we might use it would be if
we needed to contact you regarding your comment. All
comments are subject to our
terms of use policy.
