Next follow up response

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Next, follow up response to Glenn Reynolds on whether John Ashcroft’s hands were really tied, when he decided that the FBI couldn’t look at Brady Bill instant background check records to investigate folks who’d been pulled in during the anti-terrorism dragnet.

Reynolds has now posted the relevant law on his site. And let me first say that this seems like weblogging, or mezining, at its best, given the civility of the debate and the production of relevant information it’s given rise to. Having said that, the information put forward seems less than convincing to me.

Here’s why.

First, Reynolds quotes 18 U.S.C. 922(t) which says that these records are supposed to be destroyed. He concludes that these records wouldn’t even exist if the Justice Department had been following the law.

But if the Justice Department were really breaking the law, wouldn’t someone have sued? Well, they did. Or more precisely, the NRA did. And they lost.

Last year the DC Circuit Court upheld the Justice Department’s right to retain those records for six months, finding “nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes…”

The next statute Reynolds cites is 18 USC 926 … (the italics and editing are Reynolds’)

(a) The Secretary may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter. . . .

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary’s authority to inquire into the disposition of any firearm in the course of a criminal investigation.

But when I read this, the key phrase is “may require.” That’s the phrase governing the maintenance of the records in the first clause and “any system of registration” in the second. This sounds like the law says that the executive branch can’t issue a regulation requiring that these records be used as a national database or firearm registry.

That sounds different from saying that law enforcement can’t look at records that are legally (by the DC Circuit’s ruling) still hanging around.

In any case, as TPM readers know, I’m not a lawyer and Reynolds is a big time law professor. (No, that’s meant seriously, not facetiously. If these were 17th or 18th legal records, I’d be the expert, but they’re not — long story, which I’ll explain another time.) So these are just my unlearned takes on these statutes. But having looked at them, they still look way shy of black letter law to me. To put it mildly.

As one of my readers – who is a lawyer – put it “Ashcroft is pushing the envelope to expand the terror investigation in some areas, but is using one arguable (cramped) reading of a statute to limit law enforcement in the gun area.”

Given all this, any potential correction on my part, for the moment, is still on ice.

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