Ron Paul and his rEVOLution
columnist: George Dance

Topic: Bob Barr
Bob Barr and the Gun Ban (II)

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The history of the Lautenberg ban, with special attention to Barr's role. Plus: the ban goes to the Supreme Court this fall.

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by George Dance
(Libertarian)
Sunday, August 24, 2008

continued from

Bob Barr and the Gun Ban (I)

http://www.nolanchart.com/article4582.html

"Last September 30," Nancy Rhodes wrote in a spring 1997 article, "President Clinton signed the Omnibus Consolidated Appropriations Act of 1997 (PL 104-208), preventing government 'shut-down.' In its final House version, this carried a 'rider' known as the Lautenberg Gun Ban.... Lautenberg's bill ... arrived in the House during the feverish last days of the 104th Congress showdown." (15)

As Gun Owners of America (GOA) tells it, "Legislators snuck two restrictive amendments into a 2,000-page omnibus appropriations bill which was still being debated, but not yet printed.... GOA cautioned House members about the gun control provisions in the bill. Meanwhile, Representatives were being told that Gun Owners of America was misinformed and that there were no gun control amendments in the Omnibus Appropriations bill." (16)

Wikipedia adds that "Most Representatives and Senators did not read the entire bill. Those that did it, had to sign it as is, or no reparations would be funded to their states if needed." (17)

One person who knew there were gun control provisions in PL 104-208, and had read them, was Bob Barr. As a first-term congressman, elected with National Rifle Association (NRA) support, Barr had immediately gone onto the House Judiciary Committee as the representative of the NRA's interests. He knew of the Lautenberg amendment since it had passed the Senate, and knew that the White House would send it to the House of Representatives before the end of the session. (If not passed by the House by then, it would die on the order paper.)

As Barr saw it, "The original legislation that came over from the Senate in my view was not even remotely constitutional." He also thought that "having this bill rammed through both houses, [as] part of a piece of legislation that had nothing to do with the subject matter of this very important piece of legislation, was a travesty." (18)

However, the White House's "attaching the revised gun ban to the massive federal budget bill (Section 658) assured its passage." (15) (The final vote was 370-37.) Unable to stop the bill, Barr "led a last-ditch effort to modify the Lautenberg measure in ways that would have greatly weakened it." (8)

Barr reportedly fought for specific amendments -- the "Barr language" -- that would have:

1. "extended the gun ban to people convicted of domestic abuse misdemeanors only if physical force was involved" (14) (Lautenberg's original language had it applying to any DV conviction whatsoever.)
2. further limited the ban, by having it apply "only if the person was ... given the right to counsel and a trial by jury.... Democrats claimed that would have exempted most convicted abusers from the ban because few such cases carry punishments severe enough to guarantee the right to a jury trial." (14)
3. eliminated retroactivity, by having the ban apply "only if the person was notified of the gun ban when arrested." (14)
4. added "another new provision ... that a prior conviction would not lead to a firearm disability if it had been expunged or set aside, or was the result of an offense for which the convicted person had been pardoned or had his or her civil rights restored." (19)
5. "deleted the section exempting police and military." (15)

The NRA supported Barr with an immediate action alert, urging its members to "Please call your Representatives and Senators at (202) 224-3121 and urge them to vote YES on Barr and NO on Lautenberg." (20)

Barr then voted for the bill, apparently for the same reason he voted for the USA PATRIOT Act six years later: to be allowed on the conference committee (which decides on the final wording of a bill) to fight for his "language" there. However, he was not appointed to the conference committee. (19)

In conference, the "congressional Republicans initially agreed to substitute Barr's alternative for the Lautenberg amendment. That brought protests from Senate Democrats and the White House, since President Bill Clinton initially proposed the gun ban during his train trip to the Democratic Convention in August." For his part, "Barr contended Lautenberg's original bill was unconstitutional." (14)

In the end, "congressional Republicans dropped Barr's language requiring notification of the gun ban at the time of arrest. They also agreed to modify Barr's language extending the ban only to persons convicted after a jury trial.... The final agreement requires those charged with domestic abuse, who are entitled to jury trial, be given one or waive that right before coming under the gun ban if convicted." (14)

While "Most of Barr's efforts were thwarted, ... in the hours just before the big appropriations bill was finally passed he and his allies did work some changes -- including the one that removed the official-use exception." (8) "For the first time," Bovard noted, "thanks to an amendment by Georgia's Rep. Bob Barr, law-enforcement officials are not exempt from the nation's gun control laws." (9)

"A leading Democratic strategist" later complained: "They were threatening to hold up the whole show on this and we had to swallow it or risk seeing the whole appropriations bill crash. Now it looks like it was intended to undermine the bill all along." (8)

Barr himself seemed torn between repudiating the bill and defending his amendments, writing to GOA that it was "not what we fought for" but still "a vast improvement over the original." (21)

Repeal efforts

In May 1997, Bovard reported that: "The nation's police forces are up in arms over a new federal gun control law that could strip thousands of them of their guns and jobs. Most police organizations have enthusiastically supported every gun control scheme President Clinton has put forward. Few Americans realized that such legislation almost always contained an exemption for the policemen themselves regarding their official duties. But poetic justice may finally have arrived." (9)

On November 26, the Bureau of Alcohol, Tobacco and Firearms (ATF) had sent out an "Open Letter to State and Local Law Enforcement Officials" on the gun ban:

The ATF said the ban "does apply to all law enforcement officers" and applies retroactively.... Because only 15 states and the District of Columbia have defined domestic violence misdemeanors, the remaining 36 states must follow guidelines developed by the Department of Justice and the Treasury.... The ATF also declared the ban effective "immediately," and said affected government employees "should relinquish" their weapons "at once."

Police groups reacted swiftly, led by the National Association of Police Organizations (NAPO), the National Law Enforcement Officers Rights Center (NLEORC), and the Fraternal Order of Police (FOP). They planned both court challenges and immediate legislative amendment. Meanwhile, an FOP advisory posted to the national police discussion list-serve following the ATF memo said, "We urge officers to refuse to answer any and all questions regarding previous misdemeanor convictions until first consulting an attorney." (15)

When the 105th Congress met in January, 2007, the first repeal bills were introduced. Barr tabled H.R. 26 to repeal the retroactivity. Bart Stupak (R-MI), a former state trooper, introduced H.R. 445 to restore the police and military exemption. "FOP legislative assistant Timothy Richardson noted Stupak's bill in a January 22 memo to members, but said the FOP would support Barr's bill. 'Otherwise we may be characterized as arguing for a 'special' or 'elite' class of domestic abusers.'" (15)

In May, Barr even copied Clinton's strategy, burying his repeal bill in a spring supplemental appropriations bill. (6)

In March, "Rep. Helen Chenoweth (R-ID) introduced a bill (H.R. 1009) to repeal the entire Lautenberg ban." GOA criticized Barr for H.R. 26, and urged him to co-sponsor Chenoweth's bill instead. (22)

In his third term, the 106th session of Congress, Barr did co-sponsor Chernoweth's bill, which she re-introduced as the States' Rights and Second and Tenth Amendment Restoration Act of 1999 (H.R. 3444). As previously, that bill would have repealed the Lautenberg amendment in full:

Section 658 of the Treasury-Postal portion of Public Law 104-208 is repealed and is null and void as if it had not been enacted, and all provisions of law amended by such section are restored as if section 658 had not been enacted. (23)

In his fourth and final term, Barr co-sponsored the identical repeal bill, this time introduced by Virgil Goode (D-VA) as the States' Rights and Second and Tenth Amendment Restoration Act of 2001 (H.R.1455). (24)

Ironically, despite reporting extensively on Barr's role in the Lautenberg ban, GOA completely ignored his co-sponsorship of those last two repeal bills. It also ignores them in its 2008 rating of Presidential candidates, which states instead that Barr "never quite fully recanted his support for the Lautenberg gun ban, which he had voted for in 1996." (1)

Summing up

Which brings the history of the Lautenberg ban up to date. As long and winding as the story has proved to be, it was worth it if we end in a position to assess David Codrea's four challenges to Bob Barr with which we began.

(I) It is clear that Barr opposed the Lautenberg ban from the beginning, and that he fought for changes that would have minimized its damage. It is reasonable to assume that he voted for the bill as part of his fight for those changes, analogous to his vote for the USA PATRIOT Act (another bill that he denounced and tried to amend; another vote that has been misrepresented, by some, as support for that bill).

Barr's actions were, like those in the case of the USA PATRIOT Act, those of a reformer (as opposed to a radical) -- he tried for the best possible outcome, rather than holding out for the best outcome. In both cases, given the backing of the President and Senate, that best outcome -- the bill's defeat -- was not possible, and Barr's actions acknowledged that reality. Hence, while he accomplished little with respect to either bill, the radicals who voted against either or both accomplished nothing.

(II) The quotations Codrea introduces also look misrepresentative, as they are clearly taken out of context. For instance, while two of them mention Barr's "language," Codrea never explains what that "language" was. While Barr was in both cases referring to his own amendments (most of which did not pass), the implication of Codrea's article is that Barr was referring to the quite different version that did pass.

Similarly, the USA Today quote is taken completely out of context: the entire article is an argument for Barr's repeal bill, but the reader would never know from that article of Codrea's, "Don't Wink at Gun Owners" (a clever play on Barr's title) that there even was a repeal bill.

Codrea may see little difference between "the Barr language" and the language that Clinton signed into law; but that is not the point. The point is that, by ignoring those differences, Codrea is portraying Barr as supporting measures he in fact opposed.

(III) Which leads quite smoothly into Codrea's third charge: "Barr's refusal to repudiate it and apologize." Though Barr has apologized for his PATRIOT Act vote, I've stated that in my view there was nothing to apologize for; and consistency forces me to say the same thing here.

As for repudiation, though: Wouldn't Barr's co-sponsorship of the two repeal bills, in his third and fourth term, qualify? Admittedly, those bills accomplished nothing, but that is not the point of their radicalism; radicalism is about declaring one's beliefs, not getting things done. The point is that, by the halfway mark of his Congressional career, Barr had moved on this issue from his first-year reformist efforts to a radical position, twice sponsoring bills to repeal the ban in full.

How does Codrea deal with those two sponsorships? Why, he "totally avoids" mentioning them.

(IV) For reasons I've said earlier, I do not expect the campaign to respond. Barr is running on a platform of full Second Amendment rights for all "law-abiding Americans". That doesn't mean he supports banning DV misdemeanants, felons, or anyone else. It does mean he has limited time, and his own idea of what he wants to say and do in it.

The Ban goes to court

There will be one good opportunity during the campaign, though, for Barr to speak out on the Lautenberg ban, and I hope he takes advantage of it. That will come this fall when the Supreme Court rules on the case of Randy Hayes.

Here is Hayes's story:

A Marion County, West Virginia man named Randy Hayes was, to his stunned amazement, charged with felony gun possession in early 2005. To tell the full story we must go back to 1994 and an unfortunate incident in which he pled guilty to misdemeanor battery charge stemming from an argument with his wife. The marriage failed and ended in divorce shortly thereafter.

Leap forward a decade and our story resumes with [a telephone call between] Mr. Hayes and his ex-wife angry with him over a disagreement about their son. In her anger, she called the police informing them he had a firearm. The police arrived and found a family heirloom Winchester rifle under Mr. Hayes bed. Hayes was arrested on the spot and was stunned as they cuffed him. Hayes was completely unaware that he was under any legal disability to own firearms. You see, when he pled guilty in 1994, there was no Lautenberg Amendment, and what he pled to was a misdemeanor. However, Lautenberg is a retroactive law. (25)

Two days before Hayes was expected to plead guilty, he retained Charleston lawyer Troy Giatras to defend him. "We halted the entire process in March 2005," Giatras told the Charleston Daily Mail, "Because he only pleaded guilty in 1994 to battery, not domestic battery. But the federal court interpreted it as domestic battery because it was against a family member." In addition, "The 1996 law was applied to [Hayes] retroactively, but he didn't even know it." (26)

Giatras appealed to the Fourth U.S. Circuit Court of Appeals in Richmond, which threw out Hayes's conviction in October 2006. The Justice Department then appealed to the Supreme Court, which agreed in March 2008 to hear the case.

According to Associated Press: "The 4th U.S. Circuit Court of Appeals overturned the conviction because the West Virginia law Hayes violated does not specifically deal with domestic violence crimes. The question for the high court, then, is a technical one: whether the law has to include domestic violence to be used in the future to prevent someone from owning guns?" (27)

It is hard to say how SCOTUS will rule. Its June decision in the Heller case upheld the concept of an individual right to bear arms at all by only the narrowest of majorities. In the majority opinion on Heller, Justice Scalia explicitly defended parts of GCA Sect. 922(g) -- "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" -- but stayed silent on the Lautenberg prohibition. (28)

Bob Barr wrote an outstanding amicus brief for the Libertarian Party in the Heller case. (29) His doing the same in the Hayes case would do much to address any further concerns as to where he stands on the Lautenberg ban.
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Sources:

(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," The 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/

(6) "Representative Bob Barr (R-GA) to Offer Amendment to Put Guns Back Into the Hands of Wife Beaters and Child Abusers," Violence Policy Center, May 12, 1997. https://www.vpc.org/press/9705barr.htm

(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

(8) "Police With Domestic-Violence History Lose Guns," Seattle Times, Dec. 30, 1996. http://community.seattletimes.nwsource.com/archive/?date=19961230&slug=2367666

(9) James Bovard, "The Latest Gun Control Fiasco," Freedom Daily, May 1997.
http://www.fff.org/freedom/0597d.asp

(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

(15) Nancy Rhodes, "Are Cops who Batter Above the Law?", Peace Newsletter, Mar. 1997. http://www.dartguy.com/cop/gunlaw.html

(16) Larry Pratt, "Taking Back Stolen Ground," Gun Owners of America, Mar. 1997. http://www.gunowners.org/op9703.htm

(17) "Domestic Violence Offender Gun Ban," Wikipedia (accessed Aug. 9, 2008). http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban

(18) "AMEND SECTION 658 OF THE FISCAL YEAR 1997 OMNIBUS APPROPRIATIONS ACT: GUN BAN FOR INDIVIDUALS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE," House of Representatives, Subcommittee on Crime, Committee on the Judiciary, Mar. 5, 1997. http://commdocs.house.gov/committees/judiciary/hju58106.000/hju58106_0f.htm

(19) Lord Windlesham, Politics, Punishment, and Populism (Oxford, 1998), 193. http://tinyurl.com/6y2e7g

(20) "Keep up calls on Lautenberg amendment," NRA-ILA Fax Alert, Vol. 3, No. 42, Sept. 27, 1996.
http://www.hoboes.com/pub/Firearms/Organizations/NRA/NRA's%20Woes%20Wishful%20Thinking

(21) "GOA Answer to Barr," Gun Owners of America, Dec. 1996.
http://www.gunowners.org/klbarr.htm.

(22) Erich Pratt, "Lautenberg Ban Stripping Self-Defense Right from Millions," GOA Analysis, Gun Owners of America, Mar., 1997. http://www.gunowners.org/klrepana.htm

(23) States' Rights and Second and Tenth Amendment Restoration Act of 1999 (Introduced in House), HR 3444 IH, Library of Congress (accessed Aug. 11, 2008). http://thomas.loc.gov/cgi-bin/query/D?c106:3:./temp/~mdbsTRLvff::

(24) States' Rights and Second and Tenth Amendment Restoration Act of 2001 (Introduced in House) HR 1455 IH, Library of Congress (accessed Aug. 11, 2008.) http://thomas.loc.gov/cgi-bin/query/D?c107:4:./temp/~mdbsk11nK7::

(25) "Lautenberg's travesty goes to the Supreme Court," Buckeye Firearms Asociation, May 12, 2008.
http://www.buckeyefirearms.org/node/5660

(26) Cheryl Caswell, "City lawyer going before highest court in the land," Charleston Daily Mail, Apr. 30, 2008.
http://www.dailymail.com/News/200804300223

(27) Mark Sherman, "Guns Ruling Spawns Challenges by Felons," New York Sun, July 18, 2008
http://www.nysun.com/national/guns-ruling-spawns-challenges-by-felons/82203/

(28) Eugene Volokh, "Felons and the Second Amendment," The Volokh Conspiracy, July 21, 2008. http://volokh.com/posts/1216680411.shtml

(29) Andrew Davis, "LNC amicus for Heller," Andrew Davis' blog, Libertarian Party, June 25, 2008. http://www.lp.org/blogs/andrew-davis/lnc-amicus-for-heller

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Read also:

Bob Barr's Gun Record

http://www.nolanchart.com/article4437.html

Lautenberg Repeal petition:

http://www.petitiononline.com/mod_perl/signed.cgi?658104
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©2008 George Dance, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Sunday, August 24, 2008
Last modified: Tuesday, August 26, 2008

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