Energy Policy Modernization Act of 2015

Floor Speech

Mr. President, the problem of gun violence is real, but too many of the proposed responses to this problem would not only represent unwise policy but would also violate a fundamental constitutional right--the Second Amendment right to keep and bear arms.

What does this mean to you and to me as Americans? It means that the right to bear arms falls into the same category as our other most closely held individual rights: the right of free speech, the right of freedom of religion, and the right of due process of law. Basically, what I am saying is that one cannot separate out any one of the Bill of Rights or any of the other constitutional rights that come under the 14th Amendment, as an example. You can't separate the right to bear arms from those because, and this is not emphasized enough, the Second Amendment, the right to bear arms, is an individual, fundamental constitutional right. Maybe a lot of us believed that over decades, but it has been only within the last 5 to 8 years and in a couple of decisions that the Supreme Court has made that entirely clear, that it is an individual, fundamental constitutional right.

With that firm foundation, I want to straighten out some of the rampant misinformation that is used to advocate for stricter gun control. Correcting these myths is essential so that the issue can be properly deliberated and properly addressed. Unfortunately, many of these myths were reiterated over the past 2 weeks during prime time, nationwide Presidential media appearances.

First, let's debunk the quote ``gun show loophole.'' Were you to click on your TV, pick up a newspaper, or read certain mailers, you would be left with the impression that if you buy a firearm at a gun show, you are not subject to a background check. In fact, all gun show purchases made from commercial gun dealers require a background check. These commercial gun dealers--or, as they are called, Federal firearms licensees--typically make up the majority of the gun vendors at gun shows.

Let's be very clear. If someone goes to a gun show and at that gun show purchases a firearm from a commercial gun dealer, that individual or those individuals are subject to a background check, period. So then who are these people we hear the President and others speak about who are not subject to a background check? If you are an individual and you want to sell your gun to another individual, you may do so, assuming you don't know or have reasonable cause to believe that such person is prohibited from owning a gun. It is quite common sense that the government does not dictate where this sale takes place. It is peer-to- peer. You can sell your hunting rifle to your neighbors, and you can make that sale in your home, driveway, or parking lot. You can also make that sale to another individual at a gun show. That is what is referred to as a peer-to-peer transaction--simply two adults engaged in a personal transaction. Just as there is no background check required in your driveway, there generally is no background check required when that private, peer-to-peer sale happens to occur at a gun show. Very clearly, this is not a loophole in the pejorative sense of the word; this is simply an American lawfully selling their property to another without the Federal Government involved.

In this same vein, to hear the President discuss it, you would assume that these gun shows were lawless free-for-alls for felons to obtain their newest illegal weapon. In fact, local, State, and Federal law enforcement are often present at gun shows, both in uniform and covertly in plain clothes. These law enforcement officers monitor and intervene in suspected, unlawful firearm sales such as straw purchasing, attempted purchases by prohibited individuals, and the attempted sale of illegal firearms.

As the Washington Times reported last Wednesday, law enforcement arrests at gun shows hit new highs last year. I recently attended a gun show in Iowa, and there was a robust law enforcement presence. So I want to go on to another point beyond the supposed gun show loophole that I just showed isn't much of a loophole.

The second point is that we have been repeatedly told by President Obama, as recently as a couple of weeks ago, that firearms purchased on the Internet don't require a background check. I have seen media reports to that same effect. Once again, this is a blatant inaccuracy and that is an inaccuracy that needs to be corrected. So that is why I am here.

An individual cannot purchase a firearm directly over the Internet. A gun purchaser can pay for a firearm over the Internet, but, if purchased from a firearms retailer, the firearm must then be sent to a brick-and-mortar location. When the purchaser picks up the gun, a background check is performed. Assuming the purchaser passes the background check, he or she may obtain physical possession of that firearm.

In addition, an individual cannot lawfully purchase a firearm on the Internet from an individual who lives in another State. Any interstate sale of a firearm--even between two individuals online--must go through a gun store which, after charging a fee and running a background check on the purchaser, provides the purchaser with the firearm that they bought from another individual on the Internet.

These are two clear instances where Internet purchasers require a background check.

The one exception where a firearm can be lawfully purchased using the Internet without a background check is when two individuals living in the same State establish the terms of a purchase over the Internet and then meet in person to transfer the firearm.

If the firearm is a rifle or a shotgun, a resident may use the U.S. Postal Service to mail the firearm intrastate to another individual, but he may not do so if the item being purchased is a handgun. A handgun can only be mailed intrastate via a contract carrier and, as you can see, once you blow away the smoke and pull down the mirrors, the statement that there are no background checks on Internet purchases rings hollow.

A third point is that with great fanfare President Obama has stated unequivocally that firearms enforcement has been a priority with his administration. This is simply not true. That can be backed up with statistics.

The Obama administration chose to focus its criminal justice resources elsewhere rather than cracking down on illegal gun sales. Federal firearms prosecutions are down at least 25 percent under this President.

In addition, he suspended successful programs specifically designed to thwart firearms offenses. Unfortunately, as has so often been the case with the Obama administration, the rhetoric just does not match the action. As I have repeatedly called for, we need greater enforcement of the existing law, which simply has not happened under this administration.

A fourth point, to set the record straight on the President's statements, is that despite condemnation from both sides of the aisle and even from publications that regularly support increased gun control--such as the LA Times, for example--we have once again heard the President call for tying America's fundamental Second Amendment rights to the terrorist no-fly list. As we all know in this body, the no-fly list is actually multiple lists generated in secret and controlled by the executive branch bureaucrats. The no-fly list is intended to thwart suspected terrorists from flying. Flying is not a constitutional right like the Second Amendment is. So the people who are put on these lists are not given the chance to challenge their inclusion on those lists. However, it is blatantly unconstitutional to deny a fundamental constitutional right without any type of due process such as notice and the opportunity to be heard.

The fact that the President continues to call for use of the no-fly list as it relates to a fundamental right calls into question his repeated assurances that he fully supports the Second Amendment.

Given unprecedented Executive actions regarding sanctuary cities and a refusal to enforce immigration laws as enacted by this body, we should not be surprised at those statements. But let me state unequivocally that using a secret document--which by its nature and purpose will often be overinclusive or contain errors as a basis for denying Americans their Second Amendment right--is clearly unconstitutional.

The fifth point against the President's position is that on multiple occasions the Obama administration has condemned semiautomatic weapons. So let's get it straight right here and now. As any gun owner knows, a semiautomatic firearm is simply a gun that shoots one round with each pull of the trigger. This encompasses the type of shotgun most often used for duck hunting and the type of rifle often used for target shooting. A semiautomatic firearm does not equate to the fabled assault weapon and, of course, it is not a machine gun. We should be concerned when this administration makes proposals on guns that fail to reflect knowledge of even elementary elements of their operation.

I have additional myths that need to be dispelled that I will submit--and I have had permission from the Presiding Officer to submit that--but I want to be mindful of other people's times, and I now wish to respond directly to one of President Obama's challenges.

So let's talk for a moment about bipartisan efforts regarding gun control. Senator Durbin of Illinois, the second-ranking Democrat in leadership, and I are working on drafting a bill on which we hope we can reach agreement and introduce shortly, which prohibits all aliens-- with the exception of permanent legal permanent residents and those who fall under a sporting exception--from acquiring firearms. In addition, our bill reinstitutes residency requirements for those noncitizens attempting to purchase a firearm.

The bipartisan legislation we hope we can agree to introduce would close real and actual loopholes, such as those that currently permit refugees or asylees or those from visa-waiver countries to acquire firearms.

I look forward to the opportunity to work on this issue in a bipartisan manner. But if we are going to deliberate and debate the issue, we must clear up the misconceptions and avoid erroneous rhetoric that seems to be dominating the news out there with all the false positions and false interpretations of the law, which I have discussed in a few minutes with my colleagues.

So I am going to end where I started. The Second Amendment right to bear arms is a fundamental right, and any legislative or Executive action under any President must start and finish with the recognition of the fact that the Second Amendment is as important as other amendments to the Constitution of the United States.

Myth #1: Firearm purchases at gun shows do not require a background check due to the ``gun show loophole.''

Facts:

When the President and others refer to the ``gun show loophole,'' they imply that there are no background checks being done at gun shows. As a result, much of the public has been misinformed and are led to believe that individuals who purchase firearms at gun shows are not subject to a background check.

In reality, there is no ``gun show loophole.'' If an individual wants to purchase a firearm from a licensed firearms retailer, which typically makes up the majority of vendors at gun shows, the individual must fill out the requisite federal firearms paperwork and undergo a National Instant Criminal Background Check System (``NICS'') background check.

The only firearms that are being purchased at gun shows without a background check are those being bought and sold between individuals, peer-to-peer, as opposed to buying a firearm from a gun dealer. These private sales are no different from selling a personal hunting rifle to the owner's niece or nephew down the road. It is a private sale and no background paperwork is required. The gun is private property and the sale is made like a sale of the family's good silver. The one difference is that the locus of a gun show is being used to make the private sale.

Under current law, an individual is permitted to occasionally sell part, or all, of their personal firearms collection. These private sellers, however, cannot be ``engaged in the business'' of selling firearms. ``Engaged in the business'' means they can't repeatedly sell firearms with the principal objective of earning funds to support themselves. Some of the individuals who wish to sell a portion, or all, of their personal firearms collection do so at the show and might display their wares on a table. These ``private table sales,'' however, are private, peer-to-peer, sales and, therefore, do not require a background check. The President cannot change criminal statutes governing requirements for which sellers must conduct background checks. His new actions don't do so and don't claim to do so.

In a peer-to-peer, private firearms transaction, it is already illegal to sell a firearm to another individual if the seller knows or has reasonable cause to believe that the buyer meets any of the prohibited categories for possession of a firearm (felon, fugitive, illegal alien, etc).

Myth #2: Gun shows lack any law enforcement presence and are a free-for-all for felons and other prohibited individuals to obtain firearms.

Fact:

Local, state, and federal law enforcement are often present both in uniform and/or covertly in plain clothes to monitor and intervene in suspected unlawful firearms sales such as straw purchasing, purchases made by prohibited individuals, including non-residents, and the attempted sale of any illegal firearms.

Myth #3: Individuals who purchase firearms on the internet are not subject to background checks.

Facts:

An individual cannot purchase a firearm directly from a firearms retailer over the internet and have that firearm shipped to them directly. An individual can pay for the firearm over the internet at websites and online sporting goods retailers. The firearm, however must be picked up from a federal firearms licensee (``FFL'') such as a gun store. In many cases, this is the brick and mortar store associated with the website where the gun purchase was made. Once at the retail store, the internet purchaser must then fill out the requisite forms, including ATF Form 4473, which initiates the NICS background check process. Thus, an internet purchase of a firearm from a firearms retailer does require a background check.

Individuals, from the same state, are able to advertise and purchase firearms from one another and use the internet to facilitate the transaction. It is unlawful, under current law, to sell or transfer a firearm to an individual who is out-of-state. Any internet sale, even between individuals, that crosses state lines would have to utilize a federal firearms licensee (``FFL''), such as a gun store, and the purchaser would be required to fill out the requisite state and federal paperwork and would undergo a background check.

Myth #4: President Obama's January 5, 2016, executive action on gun control represents landmark change regarding gun control.

Facts:

With few exceptions, President Obama's executive action on firearms is nothing more than rhetoric regarding the status quo. Many senators have long argued for better and more robust enforcement of existing laws that prohibit criminals from owning guns.

It is the current law of the land that anyone engaged in the business of selling firearms must have a federal firearms license. The President's action does not change current law, but merely restates existing court rulings on the meaning of ``engaged in the business.''

Myth #5: The Obama Administration has made firearms enforcement a priority.

Facts:

The Obama Administration has used its limited criminal enforcement resources to focus on clemency for convicted and imprisoned felons, the investigation of police departments, and on civil rights cases. The latter two categories represent important work, but the Department of Justice lost track of one of its core missions of enforcing criminal law: prosecuting violent criminals, including gun criminals.

The Obama Administration is only now making firearms enforcement a priority. Clearly, enforcing the gun laws is a new initiative, or one of the President's actions would not have been informing all of the 93 U.S. Attorneys about it.

Proof of this lack of enforcement is revealed in the decline of weapons related prosecutions during the Obama administration. As data obtained from the Executive Office of United States Attorneys, through a Freedom of Information Act (``FOIA'') request, reveal, firearms prosecutions are down approximately 25 percent under the Obama administration versus the last year of the Bush administration.

Myth #6: Mental health has nothing to do with gun control.

Facts:

People with certain levels of mental illness are not permitted to own guns. Many of the recent mass killings were committed by mentally ill individuals. One of the keys to preventing further mass shootings and violence committed with firearms is addressing the issue of mental health.

Background checks to prevent the mentally ill from obtaining guns can only work if states provide mental health records to the NICS system. Too many states have failed to do so. Many of the worst offenders are states with the most stringent gun control laws. For multiple years now, many members of Congress have repeatedly called for and introduced legislation that would provide incentives for states to submit their mental health records for inclusion in the NICS database.

Myth #7: President Obama's executive action on gun control will thwart criminals' ability to obtain firearms.

Facts:

The President's executive action regarding firearms is focused primarily on individuals who attempt to purchase firearms through the background check process.

Criminals, however, obtain firearms in myriad illegal ways, including home invasion robbery, trading narcotics for firearms, burglary of homes, vehicles, and businesses, as well as straw purchasing.

Grassley legislation, SA 725, was specifically designed to combat the straw purchasing of firearms as well as firearms traffickers who transfer firearms to prohibited individuals and out-of-state residents.

Myth #8: There is a general consensus in America that greater gun control is needed to prevent mass shootings in the United States.

Facts:

Despite the President's statement to the contrary, polls have shown that the majority of Americans do not believe that stricter gun control would reduce the number of mass shootings in the United States.

The American public does not believe that making it harder for law abiding Americans to obtain guns makes America safer. In fact, polls have shown that a majority of Americans thinks the United States would be safer if there were more individuals licensed and trained to carry concealed weapons. A majority opposes re-imposition of the ``assault weapons'' ban.

Myth #9: The terrorist ``no-fly'' list is a proper mechanism to bar Americans from purchasing firearms.-- President Barack Obama, January 5, 2016

Facts:

The no-fly list is actually multiple lists, which are generated in secret and controlled by executive branch bureaucrats. The Second Amendment right to bear arms has been determined by the U.S. Supreme Court to be a fundamental right. This puts the right to bear arms in our most closely guarded rights similar to the right to free speech and freedom of religion. It is unconstitutional to deprive an American citizen of their Second Amendment right without notice and an opportunity to be heard.

Myth #10: Gun retailers need to step up and refuse to sell semi-automatic weapons.--President Barack Obama, January 5, 2016

Facts:

There is nothing unlawful about a semi-automatic firearm. A semi-automatic firearm simply means that a round is discharged with each pull of the trigger. These include most shotguns used for waterfowl hunting and rifles commonly used for target shooting.

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Mr. GRASSLEY.

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