Jansen Testimony Dc Gun Ban

Written testimony of J. Bradley Jansen Submitted for the record to the Committee on Public Safety and the Judiciary, Council of the District of Columbia 1350 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Hearing on 17-887 Firearms Control Temporary Amendment Act of 2008 and the Inoperable Pistol Amendment Act of 2008 September 18th, 2008

Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101

Executive Summary Guiding Principles for Council • Defining constitutional terms: The city’s argument that the “right of the people” was a collective right not an individual one threatened the rest of our rights under the Bill of Rights. • The Supreme Court has held that the Bill of Rights guards the rights of all "people" here, citizens or not. • The council must approach the gun control question as it would the rest of the enumerated rights such as the right to freedom of speech, assembly, association, etc. • The city needs to make a clearer distinction of what is permissible in public space versus private space. • Trans-Jurisdictional Concerns • Principles of Good Government: set clearly identifiable and quantitatively measurable goals. Laws and regulations not meeting those goals must be reformed or repealed. • There are aspects of the gun control measures that amount to corporate welfare by discriminating against small and home businesses and rewarding an effective monopoly to a single registered DC gun dealer. • The implementation of a registry of gun owners raises serious data privacy concerns. • Failure to act appropriately may jeopardize home rule for the District.

Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101

Chairman Vincent C. Gray, Phil Mendelson, other members of the subcommittee, thank you for allowing me the opportunity to submit testimony on this important question. My name is Brad Jansen, and I am a DC resident and the director of the Center for Financial Privacy and Human Rights. CFPHR was founded in 2005 to defend privacy, civil liberties and market economics and is part of the Liberty and Privacy Network, a Washington, DC-based 501(c)(3) organization. Defining “Right of the People” The Founding Fathers deliberated extensively on their word choice and the meaning of their words.1 The city’s argument that the “right of the people” was a collective right not an individual one threatened the rest of our rights under the Bill of Rights. The right of the people “peaceably to assemble, and to petition the government for a redress of grievances,”2 “to keep and bear arms,”3 and “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,”4 are all individual rights. To redefine “the right of the people” as a collective right would have jeopardized all of our rights. The importance of the unanimous agreement among all of the justices on the Supreme Court that the “right of the people” is an individual right cannot be underestimated. It behooves the council now to understand the implications of their arguments to justify their ends. The city has a poor record on the gun issue of understanding the rights of the people. By trying to limit gun rights, the city maintained a “collective rights” approach. That approach has been unequivocally rejected. A new approach in thinking on how to approach the law and regulations is necessary. Right of the “People” Not Just Citizens The right of the people does not just mean US citizens, but all people here are protected. The council needs to re-evaluate all of the gun control laws and regulations that do not unconstitutionally disenfranchise non-citizens of the District of Columbia of their rights. The Supreme Court has held that the Bill of Rights guards the rights of all "people" here, citizens or not.5 Again, aiming to limit our rights based on variations of the collective rights view threatens all of the rights of all of us. Non-US persons who were physically present in the U.S. deserved Constitutional due process protections. Any gun control measure by the city that predicates compliance based on citizenship similarly violates the rights of the people here and invites further costly lawsuits the city will lose. Therefore, It would behoove the city to simply respect 1

See http://www.law.ucla.edu/volokh/beararms/testimon.htm

2

First Amendment

3

Second Amendment

4

Fourth Amendment

5

See US v. Verdugo-Urquidez (1990).

Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101

our rights from the start now. Similarly, many non-District of Columbia people who reside here lawfully are not necessarily DC residents. Do citizens of other states here as Congressional aides, military personnel, et al., not have the same constitutional protections? The people of the District are tired of politicians in our local and federal government picking on the left and right, Democrat and Republican, picking and choosing which of our rights they will respect. In a 2001 open letter, I took then-US Attorney General John Ashcroft to task for making similar distinctions regarding the Foreign Intelligence Surveillance Act procedures.6 Most DC residents would be surprised to learn that the DC council has as little regard for our rights. The law enforcement community has explicitly tried to reach out to all people here, regardless of citizenship status. The public appeals for leads from the public for information about the notorious sniper illustrate this point well because the appeals specifically and explicitly reassured all “people” here, not just citizens, that they wanted everyone to come forward with information regardless of their status here. The council and the city should not use this opportunity to engage in anti-immigrant hysteria and bigotry. The aim should be on safe-guarding the rights of all lawabiding people here. Council needs to set the proper example. Constitutionally-enumerated Right The council must now recognize that the Second Amendment’s right of the people to keep and bear arms is an enumerated right. As such, the council must approach the gun control question as it would the rest of the enumerated rights such as the right to freedom of speech, assembly, association, etc. The US Supreme Court has ruled consistently that one cannot tax an enumerated right. In order to avoid further unnecessary and costly litigation, the council needs to review the legislation and conforming regulations and requirements to remove any fees or other expenses that would constitute “taxing” an enumerated right. For more on these questions, I refer the council to Dane von Breichenruchardt of the US Bill of Rights Foundation. Differentiate Public from Private Space The city needs to make a clearer distinction of what is permissible in public space versus private space. Since the right to keep and bear arms is a Constitutionallyenumerated right, the city will need to approach these questions differently. The current restrictions on the gun rights within the home clearly go too far. The proposed amendment to revise the safe storage requirement making the present language advisory is a good one and follows the important distinction between public and private space. Similarly, the repeal of the one handgun

6

http://www.cdt.org/security/usapatriot/020619freecongress.shtml%20copy

Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101

purchase limit (or one gun purchase per month limit) would remove an arbitrary and capricious restriction on an enumerated right. The analogy to consider would be allowing us a “one-time per month” free pass to speak freely in our own homes. Follow the Principles of Good Government To paraphrase from the 2001 national anti-money laundering strategy,7 if the gun control initiatives are not making a significant difference in disrupting criminal activity, principles of good government mandate that law enforcement discontinue those efforts. The effectiveness of these proposals need measured evaluation: We need evidence that the efforts are producing the desired results and need to mandates the creation of a uniform system of measurement that includes quantitative and qualitative indicators to evaluate our results against our goals. When establishing the gun control proposals, the city must establish qualitative and quantitive measurable goals at the outset in order to examine the utility of the the proposals. The council must then affirmatively check the premise of the measures to ensure that all regulations are meeting the goals established. Any initiatives that do not measure up must be reformed or repealed. The willingness of the committee to replace the safe storage provisions of the law with the Child Access Provision (CAP) instead explicitly because of the effectiveness of the programs is an excellent example of the council following the principles of good government. Laws and regulations should be tailored as narrowly as possible to meet specific, measurable public policy goals and to allow the greatest liberty to the people. End Corporate Welfare There are aspects of the gun control measures that amount to corporate welfare. Corporations and large business can internalize the costs of armed security guards relatively easily compared with smaller--or home-based--businesses. In effect, the more difficult and costly the effects of the gun control measures, the greater the marginal incentive towards larger and corporate businesses over smaller, homebased, or start-up businesses. The issue of security motivates this council. That motivation is well-placed. People in DC have security concerns that sometimes determine when and where we shop and go out within the city. Larger, more established businesses that offer secure locations for patrons have a competitive advantage over smaller businesses that lack and professional armed security presence. Those institutions that are larger and better established are more likely to be owned and run by those that are better educated and with higher incomes. The businesses at a comparative disadvantage are those more likely to be owned and/or operated by racial and ethnic minorities and immigrant-run businesses. Start-up and entrepreneurial endeavors suffer the most. Home businesses are disproportionately run by women and least likely to afford professional armed 7

http://www.treas.gov/press/releases/docs/ml2001.pdf

Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101

security guards. Similarly, the provision requiring the transfer of a gun purchase from out of the District to a licensed dealer under the current circumstances amounts to a government-sanctioned monopoly. That corporate welfare contributes to an unnecessary additional cost for no clearly justifiable benefit. Allowing people to purchase firearms from Virginia and Maryland--as the US House has voted to allow--would reduce this effective tax on an enumerated right. Surveillance and Data Privacy Concerns The registration process of the regulations create a dossier of citizens. Probably the greatest concern of the Center for Financial Privacy and Human Rights is the Big Brother surveillance concerns of the gun registration. We know that broadly half of the data abuse problems come from internal abuses: either those who should have legitimate use of that data and abuse it or allow others who should not have such access to get use of our information. Identity fraud (popularly called identity theft) is a serious and growing problem. These rules and proposals raise serious data security concerns and questions: • Who has access to the registration data? • What are the processes to change who has access to the personal information of gun owners? • What data security protections are made to the safeguard the personal information of gun owners? • How long is the information retained? • What process exists for gun owners to review and challenge or correct their information? • Is all of the information collected necessary for legitimate law enforcement and safety reasons? • What background checks are made for those who have access to our personal information? • In what networks are the DC police sharing our personal information? • What precautions are being made to safeguard the personally-identifiable information collected in gun registrations? The worst possible scenario would be for the city to institute a gun registration program that makes public a list of gun owners in the District who would then become targets for gun theft. Under such a scenario, we would then potentially Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101

increase the number of guns in the hands of criminals, increase crime and further victimize law-abiding, peaceable people. Instant background checks without the data retention of gun registration would avoid these concerns. There are many more important data and information security questions than this short testimony can raise. In short, the implementation of a registry of gun owners raises serious data privacy concerns. As yet, many of the serious issues that a registry of gun owners raises have not been addressed fully enough to instill confidence in residents here. The marginal effect of poor gun registration policies contributes to the unaccountable gun violence problems in the city and its culture of gun lawlessness. Risking Home Rule Failure of the city council to comply with both the letter and the spirit of the US Supreme Court decision and other lawsuits invites intervention by the Congress. Such actions would undermine the home rule of the District of Columbia. Renewing Congressional habits of directly managing our affairs instead of respecting home rule sets an important precedent and should not be invited lightly. Does attempting to escape compliance with a US Supreme Court decision warrant opening up the Pandora’s Box of Congressional limitations of home rule? Conclusion

The DC Council needs to change the paradigm by which it approaches the gun control question. The only responsible avenue before the council is to recognize that the right to keep and bear arms is Constitutionally-recognized enumerated right the same as the rest of the Bill of Rights. Retaining a registry of gun owners in the District requires a much fuller examination of the data and privacy issues involved. A poorly executed or maintained registry could cause greater problems than it aims to solve. If you have any questions or need additional information, please do not hesitate to contact me at 202-742-5949 ext. 101 or by email at [email protected].

Respectfully submitted, /s J. Bradley Jansen, Director Center for Financial Privacy and Human Rights

Center for Financial Privacy and Human Rights [email protected] PO Box 2658 Washington, DC  20013-2658 Tel. 202-742-5949 ext. 101