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NRA petition to the District Court. (THIS FILE)

NRA petition to the Appeals Court.
http://www.potowmack.org/nrareno3.html

Dept. of Justice brief to the Appeals Court
http://www.potowmack.org/nrareno2.html

NRA reply brief to the Appeals Court.
http://www.potowmack.org/nrareno4.html

DC Court of Appeals opinion
http//pacer.cadc.uscourts.gov/common/opinions/200007/99-5270a.txt
The NRA lost this one. The dissenting opinion is by David Sentell, a Jesse Helms crony, who played a role in getting Kenneth Starr into the Office of Independent Coucil to pursue sexual McCathryism against President Clinton.


The background for NRA v. Reno is Stephen Halbrook's "Congressional Interpretations," Tenn. Law Review, Spring, 1995. There is no secret about what the NRA and Stephen Halbrook want. They want to maintain a balance of power between a privately armed populace and any and all government. This is the essence of the armed populace fantasy. The armed populace fantasy denies the legitimacy of public authority and the viability of political community. The Constitution is reduced from a frame of government with "just powers" (public authority) derived from the consent of the governed to a treaty among sovereign individuals who give no more than word honor and promise of good faith. See Potowmack Institute amicus in Emerson.

The NRA has lobbied Congress since the 1930s to have its minions write into law that there is no intent to register guns. It then goes to court to argue that the courts have to respect the will of Congress which is presumably the will of the people when it is only the will of NRA lobbyists. Registration means accountability to public authority. It means the consent to be governed and the accommodation to public authority. Other expositions on this strategy are in Halbrook's petitition for Sheriff Printz in Printz and Mack and in the Citizens Committee on the Right to Keep and Bear Arms's amicus brief in Emerson, .../ccrkba.html.

The problem with the armed populace fantasy is that it has no roots in the consciousness and practices of the militia and the early republic. It is a strictly mid and late twentieth century invention. The Militia Act of 1792, enacted by the same people who ratified the Second Amendment, required the states to "enroll"--that is, register--militiamen for militia duty. It also required the state militia officers to maintain inventories, called "Return of Militia," of militia resources, including privately owned weapons and report these to the state governor and the president of the United States. The militia returns included rifles, muskets, side arms, pistols, pounds of powder, flints, etc.

What is remarkable about the armed populace fantasy is that there is no public enlightenment or opposition political leadership that exposes the fraud and the strategy and defines the issue in any other terms.
http://www.potowmack.org/cong5.html
http://www.potowmack.org/196rehm.html
http://www.potowmack.org/bcabcnra.html
http://www.potowmack.org/news.html
http://www.potowmack.org/washpost.html
http://www.potowmack.org/emerappi.html


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC.)
11250 Waples Mill Rd.
Fairfax, VA 22030

LAW ENFORCEMENT ALLIANCE
OF AMERICA, INC.
7700 Leesburg Pike, Suite 421
Falls Church, VA 22043

JANE DOES I and II, and

JOHN DOES I, III, and IV,

Plaintiffs

v.

CIVIL ACTION NO.

JANET RENO
Attorney General of the United States
U.S. Department of Justice
Washington, D.C.,

Defendant
COMPLAINT
(For Declaratory Judgment and Injunctive
Relief and Writ of Mandamus)

1. This is an action pursuant to the Brady Handgun Violence Prevention Act of 1993 ("Act"), Pub. L. 103-159, 107 Stat. 1536 (1993), to protect the privacy rights of lawful transferees of firearms by requiring the destruction of records concerning persons approved to receive firearms by the national instant criminal background check system ("NICS") and to preclude any system for the registration of firearms, firearm owners, or firearm transactions.

Parties

2. Plaintiff National Rifle Association of America, Inc. ("NRA"), which has a membership of almost 3 million persons, is incorporated under the laws of New York, with its principal place of business in Fairfax, Virginia. The purposes of NRA include teaching firearms safety, promoting the shooting sports, and fostering the lawful use of firearms.

Virtually all NRA members own firearms. NRA brings this action on behalf of itself and its members.

3. Plaintiff Law Enforcement Alliance of America, Inc. ("LEAA") is a non-profit membership association made up of over 65,000 members and supporters consisting of law enforcement professionals and concerned citizens dedicated to making America safer. A large proportion of LEAA members own firearms. LEAA is incorporated in Virginia with its principal place of business in Falls Church, Virginia. LEAA brings this action on behalf of itself and its members.

4. Plaintiff Jane Doe I is a resident of New Jersey and an NRA member. Plaintiff Jane Doe II is a resident of Virginia and an LEAA member. Plaintiff John Doe I is a resident of Kentucky and an NRA member. Plaintiff John Doe III is a resident of Ohio and a member of NRA and LEAA. Plaintiff John Doe IV is a resident of Arizona and an NRA member. All such plaintiffs are citizens of the United States. They bring this action under these pseudonyms so as not to forfeit their privacy rights under the Act which this action is instituted to protect.

5. Defendant Janet Reno is the Attorney General of the United States, U.S. Department of Justice, whose principal place of business is in Washington, D.C. The Department of Justice and the Federal Bureau of Investigation are subject to her supervision and control. She is being sued in her official capacity as such. Jurisdiction

6. Jurisdiction is founded on 28 U.S.C. 1331 in that this case arises under the Constitution and laws of the United States, and is a controversy to which the United States is a party; and on 28 U.S.C. 1361 in that a writ of mandamus is sought to compel an officer or employee of the United States to perform a duty owed to the plaintiffs. Plaintiffs also seek review pursuant to the Administrative Procedure Act, 5 U.S.C. 701, et seq. Background The National Instant Criminal Background Check System

7. 103(b) of the Act provides:

Not later than 60 months after the date of the enactment of this Act, the Attorney General shall establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18, United States Code, or State law. (Emphasis added.)

8. 102(b) of the Act created 18 U.S.C. 922(t). Under 922(t)(1), beginning 30 days after the Attorney General notifies licensed firearms dealers, manufacturers, and importers that the NICS is established, such licenses may not transfer a firearm to a non-licensee, subject to certain exceptions, without having first contacted the system. The licensee may transfer the firearm after (i) "the system provides the licensee with a unique identification number" or (ii) "3 business days . . . have elapsed since the licensee contacted the system, and the system has not notified the licensee that the receipt of a firearm by such other person would violate" the law. The licensee must verify the identity of the transferee by examining a valid identification document.

9. 922(t)(2) provides:

If the receipt of a firearm would not violate section 922(g) or
(n) or state law, the system shall—

(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call
(other than the identifying number and the date the number
was assigned) and all records of the system relating to the person or the transfer.

10. The above verbs "assign," "provide," and "destroy" are used in the present tense. The Act contains no language authorizing a delay in any of these three functions.

11. 103(h) of the Act provides that "the Attorney General shall prescribe regulations to ensure the privacy and security of the information of the system established under this section." This "privacy and security" of the system's information with respect to firearms purchasers and transactions is ensured in part through the requirement that the records be destroyed immediately, making such information unavailable to the Attorney General, the Department of Justice, the Federal Bureau of Investigation, and any other governmental entities.

12. These same goals are further mandated by § 103(i) of the Act, which provides:

PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO FIREARMS. — No department, agency, officer, or employee of the United States may—

(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or

(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm.

13. 621, Title VI of Pub.L. 105-277, signed by the President into law on October 22, 1998, provides:

Brady Handgun National Instant Check System (NICS)

None of the funds appropriated pursuant to this Act or any other provision of law may be used for . . . (2) any system to implement 18 U.S.C. 922(t) that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm.

The Regulations

14. By authority of defendant Janet Reno, Attorney General, the U.S. Department of Justice promulgated AG Order No. 2186-98 — Final rule: National Instant Criminal Background Check System Regulation, 63 FR 58303 (Oct. 30, 1998), creating 28 CFR Part 25, with an effective date of November 30, 1998.

15. 28 CFR 25.2 includes the following pertinent definitions:

FFL (federal firearms licensee) means a person licensed by the ATF as a manufacturer, dealer, or importer of firearms. NICS means the National Instant Criminal Background Check System, which an FFL must, with limited exceptions, contact for information on whether receipt of a firearm by a person who is not licensed under 18 U.S.C. 923 would violate Federal or state law. NICS Index means the database, to be managed by the FBI, containing information provided by Federal and state agencies about persons prohibited under Federal law from receiving or possessing a firearm. . . . NICS Operations Center means the unit of the FBI that receives telephone or electronic inquiries from FFLs to perform background checks, makes a determination based upon available information as to whether the receipt or transfer of a firearm would be in violation of Federal or state law, researches criminal history records, tracks and finalizes appeals, and conducts audits of system use. NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs. 16. Before transferring a firearm, a licensee (FFL) must contact NICS and provide information about the proposed transferee. 25.7 provides:

(a) The following search descriptors will be required in all queries of the system for purposes of a background check:

(1) Name;

(2) Sex;

(3) Race;

(4) Complete date of birth; and

(5) State of residence.

(b) A unique numeric identifier may also be provided to search for additional records based on exact matches by the numeric identifier. Examples of unique numeric identifiers for purposes of this system are: Social Security number (to comply with Privacy Act requirements, a Social Security number will not be required by the NICS to perform any background check) and miscellaneous identifying numbers (e.g., military number or number assigned by Federal, state, or local authorities to an individual's record). Additional identifiers that may be requested by the system after an initial query include height, weight, eye and hair color, and place of birth. At the option of the querying agency, these additional identifiers may also be included in the initial query of the system.

17. Procedures to conduct NICS are set forth in 25.6(c)(1), which provides in part: The FBI NICS Operations Center, upon receiving an FFL telephone or electronic dial-up request for a background check, will:

(i) Verify the FFL Number and code word;

(ii) Assign a NICS Transaction Number (NTN) to a valid inquiry and provide the NTN to the FFL;

(iii) Search the relevant databases . . . for any matching records; and

(iv) Provide the following NICS responses based upon the consolidated NICS search results to the FFL that requested the background check:

(A) "Proceed" response, if no disqualifying information was found . . . .

18. As provided in 25.2, "Proceed means a NICS response indicating that the information available to the system at the time of the response did not demonstrate that transfer of the firearm would violate federal or state law." Other responses are "delayed," meaning that further research is necessary, and "denied," meaning that receipt of the firearm would violate the law.

19. 28 C.F.R. 25.2 includes the following definition: "Audit log means a chronological record of system (computer) activities that enables the reconstruction and examination of the sequence of events and/or changes in an event." 28 C.F.R. 25.9(b) provides in part: The FBI will maintain an automated NICS Audit Log of all incoming and outgoing transactions that pass through the system.

(1) The Audit Log will record the following information: type of transaction (inquiry or response), line number, time, date of inquiry, header, message key, ORI, and inquiry/response data (including the name and other identifying information about the prospective transferee and the NTN). In cases of allowed transfers, all information in the Audit Log related to the person or the transfer, other than the NTN assigned to the transfer and the date the number was assigned, will be destroyed after not more than six months after the transfer is allowed. . . . (emphasis added).

(2) The Audit Log will be used to analyze system performance, assist users in resolving operational problems, support the appeals process, or support audits of the use of the system. . . . Information in the Audit Log pertaining to allowed transfers may only be used by the FBI for the purpose of conducting audits of the use and performance of the NICS. . . .

20. FFLs contact NICS directly by communicating with the Federal Bureau of Investigation (FBI) or, in instances where the State so agrees, by communicating with a state law enforcement agency. Concerning records generated by FBI operation of NICS, 25.9(c) provides: The following records in the FBI-operated terminals of the NICS will be subject to the Brady Act's requirements for destruction:

(1) All inquiry and response messages (regardless of media) relating to a background check that results in an allowed transfer; and

(2) All information (regardless of media) contained in the NICS Audit Log relating to a background check that results in an allowed transfer. 21. 28 CFR 25.2 includes the following definition: POC (Point of Contact) means a state or local law enforcement agency serving as an intermediary between an FFL and the federal databases checked by the NICS. A POC will receive NICS background check requests from FFLs, check state or local record systems, perform NICS inquiries, determine whether matching records provide information demonstrating that an individual is disqualified from possessing a firearm under Federal or state law, and respond to FFLs with the results of a NICS background check. A POC will be an agency with express or implied authority to perform POC duties pursuant to state statute, regulation, or executive order.

22. Concerning records generated by POC operation of NICS, 25.9(d) states:

The following records of state and local law enforcement units serving as POCs will be subject to the Brady Act's requirements for destruction:

(1) All inquiry and response messages (regardless of media) relating to the initiation and result of a check of the NICS that allows a transfer that are not part of a record system created and maintained pursuant to independent state law regarding firearms transactions; and

(2) All other records relating to the person or the transfer created as a result of a NICS check that are not part of a record system created and maintained pursuant to independent state law regarding firearms transactions.

Facts

23. On November 30, 1998, plaintiff Jane Doe I provided her name and other identifying information to a federally-licensed firearms dealer in the State of New Jersey. The dealer proceeded to contact the NICS, which searched the relevant data bases and provided the dealer with a "proceed" response. The dealer then transferred the firearm to said plaintiff.

24. On November 30, 1998, plaintiff Jane Doe II provided her name and other identifying information to a federally-licensed firearms dealer in the State of Virginia. The dealer proceeded to contact the NICS, which searched the relevant data bases and provided the dealer with a "proceed" response. The dealer then transferred the firearm to said plaintiff.

25. On November 30, 1998, plaintiff John Doe I provided his name and other identifying information to a federally-licensed firearms dealer in the State of Kentucky. The dealer proceeded to contact the NICS, which searched the relevant data bases and provided the dealer with a "proceed" response. The dealer then transferred the firearm to said plaintiff.

27. On November 30, 1998, plaintiff John Doe III provided his name and other identifying information to a federally-licensed firearms dealer in the State of Ohio. The dealer proceeded to contact the NICS, which searched the relevant data bases and provided the dealer with a "proceed" response. The dealer then transferred the firearm to said plaintiff.

28. On November 30, 1998, plaintiff John Doe IV provided his name and other identifying information to a federally- licensed firearms dealer in the State of Arizona. The dealer proceeded to contact the NICS, which searched the relevant data bases and provided the dealer with a "proceed" response. The dealer then transferred the firearm to said plaintiff.

29. On November 30, 1998, numerous members of the plaintiff NRA in every State of the United States provided their names and other identifying information to federally- licensed firearms dealers. The dealers proceeded to contact the NICS, which searched the relevant data bases and provided the dealers with "proceed" responses. The dealers then transferred the firearm to said NRA members. Beginning on such date and continuing into the indefinite future, millions of NRA members from every State of the United States will continue to provide their names and other identifying information to federally-licensed firearms dealers, who will contact the NICS. NICS will search the relevant data bases and provide the dealers with "proceed" responses, and the dealers will transfer firearms to said NRA members.

30. On November 30, 1998, members of the plaintiff LEAA in several States of the United States provided their names and other identifying information to federally-licensed firearms dealers, which contacted the NICS. NICS searched the relevant data bases and provided the dealers with "proceed" responses. The dealers then transferred the firearms to said LEAA members. Beginning on such date and continuing into the indefinite future, numerous LEAA members throughout the United States will continue to provide their names and other identifying information to federally-licensed firearms dealers, who will contact the NICS. NICS will search the relevant data bases and provide the dealers with "proceed" responses, and the dealers will transfer firearms to said LEAA members.

31. Plaintiffs Jane Doe I, Jane Doe II, John Doe IV, and numerous members of plaintiffs NRA and LEAA reside in States in which the NICS is operated by POCs. Plaintiffs John Doe I, John Doe III, and numerous members of plaintiffs NRA and LEAA reside in States in which the NICS is operated by the FBI.

32. Pursuant to 28 CFR 25.9(b), the names and other identifying information provided in each of the above instances will be retained and not destroyed by defendant Reno and her officers, agents, and employees for as long as six months.

COUNT ONE

33. Paragraphs 1 through 32 are realleged and incorporated herein by reference.

34. 18 U.S.C. 922(t)(2) provides that, if receipt of a firearm would not violate the law, NICS shall assign a unique identification number to the transfer, provide it to the licensee, and "destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer." 621, Title VI of Pub.L. 105-277 prohibits funds from being used for NICS to the extent that it "does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm." These provisions contain no "grace" period authorizing defendant to disregard the destruction requirement, which is applicable to defendant immediately once the unique identification number is provided to the licensee.

35. 103(h) of the Act imposed a duty on the Attorney General to "prescribe regulations to ensure the privacy and security of the information of the system," and instead she prescribed regulations authorizing the violation of privacy and security of the information of the system for a six-month period.

36. By failing to comply with 18 U.S.C. 922(t)(2) until the expiration of a time period arbitrarily set by her as long as six months, defendant Reno has violated, and will continue to violate, the privacy rights provided by 18 U.S.C. 922(t)(2) and 103(h) of the Act of the individual plaintiffs and for the members of plaintiffs NRA and LEAA.

COUNT TWO

37. Paragraphs 1 through 36 are realleged and incorporated herein by reference.

38. 103(i) of the Act provides that "no department, agency, officer, or employee of the United States may--(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States . . . ." It also prohibits use of the system "to establish any system for the registration of firearms, firearm owners, or firearm transactions . . . ." Defendant Reno is not authorized to declare that she is not subject to these provisions or that such provisions are inoperative until such time as she chooses.

39. 28 CFR 25.9(b) purports to authorize records and portions thereof generated by NICS to be "recorded at or transferred to a facility" of the United States for a period of up to six months. It also establishes a computerized "system for the registration of firearms, firearm owners, or firearm transactions" for the same period.

40. By failing to comply with 103(i) of the Act, defendant Reno has violated, and will continue to violate, the privacy rights of the individual plaintiffs and of the members of plaintiffs NRA and LEAA.

COUNT THREE

41. Paragraphs 1 through 40 are realleged and incorporated herein by reference.

42. 28 CFR 25.9(d) provides that the records of state and local law enforcement units serving as POCs will not be subject to the Act's requirements for destruction if such records are "created and maintained pursuant to independent state law regarding firearms transactions." Such records include "all inquiry and response messages (regardless of media) relating to the initiation and result of a check of the NICS" and "all other records relating to the person or the transfer created as a result of a NICS check."

43. The Act does not authorize the delegation of the duties of the NICS to states and localities or the intervention of "independent state law regarding firearms transactions" in such manner as would nullify the destruction requirement of 18 U.S.C. 922(t)(2) or the prohibitions of 103(i) of the Act against (1) requiring that "any record or portion thereof" generated by the system "be recorded at or transferred to a facility owned, managed, or controlled by . . . any State or political subdivision thereof" or (2) using the system "to establish any system for the registration of firearms, firearm owners, or firearm transactions." (Emphasis added.) 44. By failing to comply with 18 U.S.C. 922(t)(2) and 103(i) of the Act, defendant Reno has violated, and will continue to violate, the privacy rights of plaintiffs Jane Doe I, Jane Doe II, John Doe IV, and of the members of plaintiffs NRA and LEAA who reside in States in which the NICS is operated by POCs.

WHEREFORE, plaintiffs pray that the Court:

1. Enter a declaratory judgment that 28 CFR 25.9(b) and any other provisions purporting to delay the execution of the duty to destroy records are contrary to 18 U.S.C. 922(t)(2), to 103(h) and 103(i) of the Act, and to 621, Title VI of Pub.L. 105-277, and are thus invalid.

2. Enter a declaratory judgment that 28 CFR 25.9(d) is invalid to the extent it purports to exempt state and local law enforcement units serving as POCs from destroying records generated by the NICS system on lawful transferees to the extent the records are "created and maintained pursuant to independent state law regarding firearms transactions."

3. Issue preliminary and permanent injunctions and a writ of mandamus requiring, or otherwise compelling, defendant Reno and her officers, agents and employees, pursuant to 18 U.S.C. 922(t)(2), once the legality of the transfer is determined and the unique identification number is provided to the licensee, immediately to "destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer."

4. Grant such other and further relief as may be proper.

5. Award plaintiff attorney's fees and costs.

Respectfully Submitted,
National Rifle Association of America, Inc., et al., Plaintiffs

By Counsel

Stephen P. Halbrook
Richard E. Gardiner
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
[Note: The formatting of this HTML document is
somewhat different from the printed version filed in
court.]
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., et al.,
Plaintiffs
v.
JANET RENO, Attorney General of the United States, U.S. Department of Justice,
Defendant

MEMORANDUM IN SUPPORT OF MOTION
FOR PRELIMINARY INJUNCTION

The plaintiffs hereby set forth the following facts, reasons, and authorities in support of their motion for a preliminary injunction. This is an action pursuant to the Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993) ("the Act") to protect the privacy rights of lawful transferees of firearms by requiring the destruction of records concerning persons approved to receive firearms by the national instant criminal background check system ("NICS") and to preclude any system for the registration of firearms, firearm owners, or firearm transactions. The Act directed the Attorney General to establish NICS so that, if a computerized background check showed the transferee not to be a prohibited person, NICS would assign a unique identification number to the transfer, provide it to the licensed firearms dealer, and "destroy all records of the system with respect to the call" (other than the identifying number and the date) "and all records of the system relating to the person or the transfer." 18 U.S.C. 922(t)(2). Defendant Attorney General Janet Reno has prescribed permanent regulations authorizing NICS to retain the above records for up to six months. 28 C.F.R. 25.9(b)(1). Plaintiffs seek preliminary injunctive relief ordering immediate compliance with the requirement that the records be destroyed. Pursuant to Local Rule 205(d), plaintiffs have requested an expedited hearing on this motion no later than 20 days after its filing. Expedition is essential in that, as set forth in detail below, the Act strictly forbids NICS from retaining the records in question and strictly protects the privacy interests of plaintiffs. Plaintiffs' privacy rights are being violated each and every day in which the records are not destroyed. Facts Plaintiff National Rifle Association of America, Inc. ("NRA"), which has a membership of almost 3 million persons, brings this action on behalf of itself and its members. The purposes of NRA include teaching firearms safety, promoting the shooting sports, and fostering the lawful use of firearms. Affidavit of Craig D. Sandler, 1.(1) Plaintiff Law Enforcement Alliance of America, Inc. ("LEAA") is an association made up of over 65,000 members and supporters who are law enforcement professionals and concerned citizens dedicated to making America safer. LEAA brings this action on behalf of itself and its members, a large proportion of whom own firearms. Affidavit of Theodore S. Deeds, 1. Plaintiffs Jane Doe I and John Does I, III, and IV are citizens of the United States and members of the NRA. Plaintiffs Jane Doe II and John Doe III are citizens of the United States and members of LEAA. They bring this action under these pseudonyms so as not to forfeit their privacy rights under the Act which this action is instituted to protect. Affidavits of Jane Does I and II, John Does I, III, and IV. NICS began operations on November 30, 1998, on which date each of the Doe plaintiffs and numerous members of NRA and LEAA provided their names and other identifying information to federally-licensed firearms dealers; the dealers contacted the NICS, which searched the relevant data bases and provided the dealers with "proceed" response; and the dealers then transferred firearms to said persons. See Affidavits of Sandler, Deeds, & all Does. NICS will preserve records on such persons for as much as six months. Literally millions of members of NRA and LEAA will continue purchasing firearms and being subjected to NICS in the future. See Affidavits of Sandler, 1-2, & Deeds, 1-2. Standard for Preliminary Injunction The standard for a preliminary injunction is set forth in Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) as follows: To demonstrate entitlement to a preliminary injunction, a litigant must show "1) a substantial likelihood of success on the merits; 2) that it would suffer irreparable injury if the injunction is not granted; 3) that an injunction would not substantially injure other interested parties; and 4) that the public interest would be furthered by the injunction." [Citation omitted.] . . . The district court balances the litigant's showings in these four areas in deciding whether to grant an injunction. As the following shows, plaintiffs have a substantial likelihood of success on the merits. Plaintiffs will suffer substantial irreparable injury in the form of violation of privacy absent a preliminary injunction. If the relief is granted, no parties will be harmed, and it is in the public interest to grant the relief sought.

I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

A. The Statutory Background 103(b) of the Act provides:

Not later than 60 months after the date of the enactment of this Act, the Attorney General shall establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18, United States Code, or State law. (Emphasis added.) 102(b) of the Act created 18 U.S.C. 922(t). Under 922(t)(1), beginning 30 days after the Attorney General notifies licensed firearms dealers, manufacturers, and importers that the NICS is established, such licenses may not transfer a firearm to a non-licensee [i.e., November 30, 1998], subject to certain exceptions, without having first contacted the system. The licensee may transfer the firearm after (i) "the system provides the licensee with a unique identification number" or (ii) "3 business days . . . have elapsed since the licensee contacted the system, and the system has not notified the licensee that the receipt of a firearm by such other person would violate" the law. The licensee must verify the identity of the transferee by examining a valid identification document. 18 U.S.C. 922(t)(2) provides: If the receipt of a firearm would not violate section 922(g) or (n) or state law, the system shall--

(A) assign a unique identification number to the transfer;

(B) provide the licensee with the number; and

(C) destroy all records of the system with respect to the call

(other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer. The above verbs "assign," "provide," and "destroy" are used in the present tense. The Act contains no language authorizing a delay in any of these three functions. It includes no "grace" period authorizing defendant to disregard the destruction requirement, which is immediately applicable once the unique identification number is provided to the licensee. Just as the Act neared passage, Senator Craig discussed the viability of an instant check based on computerized records and noted about the privacy of the records on firearm purchasers: It is a matter of law that they [the records] should not stand once the background check is done, so that there not be a fear that somebody were compiling a master list of guns and gunowners. That is not the intent and the law clearly understands that. CONG REC. S16328 (Nov. 19, 1993).

(2) If Congress had intended to mandate record destruction at some time later than immediately, language specifying the time would have been included. The interim provisions of the Brady Act required the licensee to furnish a copy of the transferee's written statement to the local chief law enforcement officer. 18 U.S.C. 922(s)(1)(A)(IV). The officer was commanded to search manual and computerized records and to ascertain the legality of the transaction within five business days.

(3) The Act provided that the officer "shall, within 20 business days after the date the transferee made the statement . . ., destroy the statement."

(4) 922(s)(6)(B)(i). And see 923(g)(3) (state police "shall destroy each such form [reporting multiple handgun purchases] and any record of the contents thereof no more than 20 days from the date such form is received").

(5) The records generated under these provisions were paper, not computer records capable of instant destruction by pushing a button. By purporting to authorize NICS to disregard the destruction requirement of 922(t)(2) for a time period arbitrarily set by her at as long as six months, the Attorney General has violated, and will continue to violate, the privacy rights of firearm transferees. 103(h) of the Act provides that "the Attorney General shall prescribe regulations to ensure the privacy and security of the information of the system established under this section." Instead, as shown in detail below, she prescribed regulations authorizing the violation of privacy and security of the information of the system for a six-month period. This "privacy and security" of the system's information with respect to firearms purchasers and transactions is ensured in part through the requirement that the records be destroyed immediately, making such information unavailable to the Attorney General, the Department of Justice, the Federal Bureau of Investigation, and any other governmental entities.

These same goals are further mandated by 103(i) of the Act, which provides:

PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO FIREARMS. -- No department, agency, officer, or employee of the United States may--

(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or

(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm.(6)

The Attorney General is not authorized to declare NICS exempt from these provisions or that such provisions are inoperative until such time as she chooses. 28 CFR 25.9(b) purports to authorize records and portions thereof generated by the system to be "recorded at or transferred to a facility" of the United States for a period of up to six months. It also establishes a computerized "system for the registration of firearms, firearm owners, or firearm transactions" for the same period.

621, Title VI of P.L. 105-277, signed by the President into law on October 22, 1998, provides:

Brady Handgun National Instant Check System (NICS)

None of the funds appropriated pursuant to this Act or any other provision of law may be used for . . . (2) any system to implement 18 U.S.C. 922(t) that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm.

This provision was enacted in response to the promulgation by the Attorney General of AG Order No. 2158-98--Proposed rule: National Instant Criminal Background Check System Regulations, 63 FR 30430 (June 4, 1998), proposing the creation of 28 CFR Part 25. Proposed 28 CFR 25.9(b)(1) would have provided that records generated by NICS relating to approved persons and transfers would not be destroyed until "after eighteen months." 63 FR at 30437.

Explaining the above language of the appropriations bill, Rep. Barr observed: "Gun registration systems have been used in many foreign countries, and in the United States jurisdictions including California and New York City, to confiscate firearm from citizens." CONG. REC. H11652 (Oct. 20, 1998). He noted that the Act's destruction requirement "was intended to prevent the FBI or any other agency from using the system to keep a listing of everyone approved by the system to buy a firearm." Id. The FBI's proposed Audit Log which would retain the records for 18 months "would violate the latter and spirit" of the law, according to Rep. Barr, who added: "This language is carefully crafted to ensure the FBI complies with all the provisions of the Brady Act and the Firearms Owners' Protection Act which prevent this system from turning into a gun registration scheme to restrict the second amendment rights of law-abiding Americans." Id.

A colloquy between Senators Stevens and Lott also explained the purpose of the appropriations language. Noting that NICS was intended "to protect the privacy of individual law-abiding gun owners," Senator Stevens added: "One of the greatest concerns and legitimate fears of law abiding gun owners is that the federal government will create a federal gun owner registration system where law abiding gun owners exercise of their constitutional rights will be carefully monitored." CONG. REC. S12742 (Oct. 21, 1998).

Senator Lott stated that the FBI was prohibited from keeping NICS records on approved transfers "for one and one half years, or for any period of time," and Stevens agreed. Id. Stevens noted that, under 922(t)(2), destruction of the records "shall occur contemporaneously upon the system's approval of the firearms transfer" and the conveyance of the unique number and approval to the dealer. Id.

B. The Regulations

By authority of the Attorney General, the U.S. Department of Justice promulgated AG Order No. 2186-98--Final rule: National Instant Criminal Background Check System Regulation, 63 FR 58303 (Oct. 30, 1998), creating 28 CFR Part 25, with an effective date of November 30, 1998.

28 CFR 25.2 includes the following pertinent definitions:

FFL (federal firearms licensee) means a person licensed by the ATF as a manufacturer, dealer, or importer of firearms.

NICS means the National Instant Criminal Background Check System, which an FFL must, with limited exceptions, contact for information on whether receipt of a firearm by a person who is not licensed under 18 U.S.C. 923 would violate Federal or state law.

NICS Index means the database, to be managed by the FBI, containing information provided by Federal and state agencies about persons prohibited under Federal law from receiving or possessing a firearm. . . .

NICS Operations Center means the unit of the FBI that receives telephone or electronic inquiries from FFLs to perform background checks, makes a determination based upon available information as to whether the receipt or transfer of a firearm would be in violation of Federal or state law, researches criminal history records, tracks and finalizes appeals, and conducts audits of system use. NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs.

Before transferring a firearm, an FFL must contact NICS and provide information about the proposed transferee. 25.7 provides:

(a) The following search descriptors will be required in all queries of the system for purposes of a background check:

(1) Name;

(2) Sex;

(3) Race;

(4) Complete date of birth; and

(5) State of residence.

(b) A unique numeric identifier may also be provided to search for additional records based on exact matches by the numeric identifier. Examples of unique numeric identifiers for purposes of this system are: Social Security number (to comply with Privacy Act requirements, a Social Security number will not be required by the NICS to perform any background check) and miscellaneous identifying numbers (e.g., military number or number assigned by Federal, state, or local authorities to an individual's record). Additional identifiers that may be requested by the system after an initial query include height, weight, eye and hair color, and place of birth. At the option of the querying agency, these additional identifiers may also be included in the initial query of the system.

Procedures to conduct NICS are set forth in 28 CFR 25.6(c)(1), which provides in part:

The FBI NICS Operations Center, upon receiving an FFL telephone or electronic dial-up request for a background check, will:

(i) Verify the FFL Number and code word;

(ii) Assign a NICS Transaction Number (NTN) to a valid inquiry and provide the NTN to the FFL;

(iii) Search the relevant databases . . . for any matching records; and

(iv) Provide the following NICS responses based upon the consolidated NICS search results to the FFL that requested the background check:

(A) 'Proceed' response, if no disqualifying information was found . . . .

As provided in 25.2, "Proceed means a NICS response indicating that the information available to the system at the time of the response did not demonstrate that transfer of the firearm would violate federal or state law." Other responses are "delayed," meaning that further research is necessary, and "denied," meaning that receipt of the firearm would violate the law.

28 C.F.R. 25.2 includes the following definition: "Audit log means a chronological record of system (computer) activities that enables the reconstruction and examination of the sequence of events and/or changes in an event." 25.9(b) provides in part:

The FBI will maintain an automated NICS Audit Log of all incoming and outgoing transactions that pass through the system.

(1) The Audit Log will record the following information: type of transaction (inquiry or response), line number, time, date of inquiry, header, message key, ORI, and inquiry/response data (including the name and other identifying information about the prospective transferee and the NTN). In cases of allowed transfers, all information in the Audit Log related to the person or the transfer, other than the NTN assigned to the transfer and the date the number was assigned, will be destroyed after not more than six months after the transfer is allowed. . . .

(2) The Audit Log will be used to analyze system performance, assist users in resolving operational problems, support the appeals process, or support audits of the use of the system. . . . Information in the Audit Log pertaining to allowed transfers may only be used by the FBI for the purpose of conducting audits of the use and performance of the NICS. . . .(7)

The nullification of the 922(t)(2) destruction requirement by a retention period arbitrarily chosen by the Attorney General is lamely justified as follows:

Although the Brady Act mandates the destruction of all personally identified information in the NICS associated with approved firearms transactions (other than the identifying number and the date the number was assigned), the statute does not specify a period of time within which records of approvals must be destroyed.

63 FR at 58303.

It is noteworthy that Congress has taken pains in several enactments to maintain the privacy of lawful firearm transferees from the government, but has never expressed any interest in allowing breach of this privacy via any "audit log."

FFLs contact NICS directly by communicating with the Federal Bureau of Investigation (FBI)(8) or, in instances where the State so agrees, by communicating with a state law enforcement agency.(9) Concerning records generated by the FBI, 25.9(c) provides:

The following records in the FBI-operated terminals of the NICS will be subject to the Brady Act's requirements for destruction:

(1) All inquiry and response messages (regardless of media) relating to a background check that results in an allowed transfer; and

(2) All information (regardless of media) contained in the NICS Audit Log relating to a background check that results in an allowed transfer.

Regarding state participation in the operation of NICS, 28 CFR 25.2 includes the following definition:

POC (Point of Contact) means a state or local law enforcement agency serving as an intermediary between an FFL and the federal databases checked by the NICS. A POC will receive NICS background check requests from FFLs, check state or local record systems, perform NICS inquiries, determine whether matching records provide information demonstrating that an individual is disqualified from possessing a firearm under Federal or state law, and respond to FFLs with the results of a NICS background check. A POC will be an agency with express or implied authority to perform POC duties pursuant to state statute, regulation, or executive order.

The regulations authorize states which conduct the background checks not to destroy all records of transferees and transactions if part of a record system under state law. 25.9(d) states:

The following records of state and local law enforcement units serving as POCs [points of contact] will be subject to the Brady Act's requirements for destruction:

(1) All inquiry and response messages (regardless of media) relating to the initiation and result of a check of the NICS that allows a transfer that are not part of a record system created and maintained pursuant to independent state law regarding firearms transactions; and

(2) All other records relating to the person or the transfer created as a result of a NICS check that are not part of a record system created and maintained pursuant to independent state law regarding firearms transactions. Thus, the records of state and local law enforcement units serving as POCs will not be subject to the Act's requirements for destruction if such records are "created and maintained pursuant to independent state law regarding firearms transactions." The Act does not authorize the delegation of NICS duties to states and localities. Nor does the Act provide an exception for records associated with "independent state law regarding firearms transactions" from the destruction requirement of 922(t)(2). Indeed, 103(i) of the Act expressly forbids (1) requiring that "any record or portion thereof" generated by the system "be recorded at or transferred to a facility owned, managed, or controlled by . . . any State or political subdivision thereof" or (2) using the system "to establish any system for the registration of firearms, firearm owners, or firearm transactions."

C. The Language of the Statute Must Be Interpreted

to Reflect Congress' Intent and Purpose

The provisions of the Act at issue here were enacted to protect the privacy rights of lawful firearm purchasers from the government, including those operating NICS. Its literal terms and its purpose dictate that the records be destroyed immediately.

It is undisputable from the language of the provisions at issue that Congress feared that retention of records on lawful firearm transferees could lead to abuses and violation of rights by the government. While willing to entrust administration of NICS to the Attorney General, Congress was well aware that of the need to protect citizens from misuse of power by the agents and employees of the Attorney General. See, e.g., Hobson v. Wilson, 737 F.2d 1, 7 (D.C. Cir. 1984) ("the Federal Bureau of Investigation's notorious COINTELPRO operation"); Jones v. Federal Bureau of Investigation, 41 F.3d 238, 240 (6th Cir. 1994) (Senate committee characterized COINTELPRO as "a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights").

"We must be ever mindful that when Congress enacts a statute designed to limit government intrusion in the private affairs of its citizens, the statutory provisions must be followed scrupulously." United States v. Bacheler, 611 F.2d 443, 447 (3d Cir. 1979)(10) (construing 26 U.S.C. 6103(a), which prohibits the IRS from disclosing tax return information). See also United States v. Lavin, 604 F.Supp. 350, 356 (E.D.Pa. 1985) (definitions of 6103 "must be strictly construed" against disclosure of taxpayer information to the FBI).

McSurely v. McAdams, 502 F.Supp. 52, 56 ( D.D.C. 1980) explains how 6103 was enacted with the purpose of protecting the privacy rights of citizens against the government:

It is a maxim of statutory construction that statutes "should be interpreted so as to effectuate their manifested purpose or object." . . . The legislative history underlying the Tax Reform Act of 1976 indicates that the overriding purpose of the confidentially provisions of 6103 was to protect tax returns and return information from misuse by the White House, various Executive Branch agencies and other government entitles. . . . Of particular concern was the misuse of tax information for partisan political purposes . . . .

The law's purpose was to prevent government entities from having "wholesale, unregulated access to tax information." "The main concern of Congress was the status of the IRS as a virtual 'lending library of confidential tax information' to various government agencies . . . ." Id.

No deference is due to the Attorney General in interpretation of a statute intended to protect the privacy rights of private citizens from the Attorney General. Independent Insurance Agents v. Board of Governors of Federal Reserve System, 838 F.2d 627, 632 (2d Cir. 1988) explains:

Courts construing statutes enacted specifically to prohibit agency action ought to be especially careful not to allow dubious arguments advanced by the agency in behalf of its proffered construction to thwart congressional intent expressed with reasonable clarity, under the guise of deferring to agency expertise on matters of minimal ambiguity.

That decision rejected deference to the agency's interpretation because the purpose of the law was to limit the power of the federal banking agencies in question. "An enactment of that sort must not be given a crabbed interpretation that risks undermining its purpose." Id.

The above decision, id., rejected deference under the second part of the test set forth in Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). It goes without saying that the government invariably ignores the first part of the test set forth in Chevron:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.(11)

Id. That is certainly the case here. Congress could not have been clearer when it directed that NICS "destroy" the records and prohibited any records from being kept on firearm transactions on government premises.

The complaint here seeks review under the Administrative Procedure Act, 5 U.S.C. 706, which states in pertinent part:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .

Plaintiffs also seek a writ of mandamus directing the Attorney General to comply forthwith with the law. "Where a federal official has a clear obligation to perform a ministerial duty, a federal district court may issue a writ of mandamus under 28 U.S.C. section 1361 to compel the fulfillment of the obligation." National Wildlife Federation v. United States, 626 F.2d 917, 923 (D.C.Cir. 1980).

In this case, the Attorney General's regulations and actions are not in accordance with law and violate a clear ministerial duty. Plaintiffs are likely to prevail on the merits.

II. PLAINTIFFS WILL SUFFER IRREPARABLE

INJURY IF THE INJUNCTION IS NOT GRANTED

Retention of NICS information by the Attorney General and her officers, agents, and employees subjects both individual and association plaintiffs to invasion of privacy and violation of confidentiality. They are entitled by the rights and interests established and protected by the Act not to be subjected to such harm.

Through her promulgation of 28 CFR 25.9(b) and her failure otherwise to cause the immediate destruction of all records of the system on the transferee and the transfer after communicating to the licensee that receipt of the firearm would not violate the law, the Attorney General has caused injury to plaintiffs and will continue causing injury to plaintiffs.

III. AN INJUNCTION WOULD NOT SUBSTANTIALLY

INJURE OTHER INTERESTED PARTIES

It is inconceivable how the injunction would harm, much less substantially harm, the Attorney General. 28 C.F.R. 25.9(b)(2) provides in part: "Information in the Audit Log pertaining to allowed transfers may only be used by the FBI for the purpose of conducting audits of the use and performance of the NICS." This statement is so general as to make it difficult to find any compelling need for information on approved transferees remaining in the system. Certainly other methods which do not violate the law could be found to "conduct audits of the use and performance of the NICS."

Finally, any harm to a party would be small when that party is likely to lose on the merits. Mova Pharmaceutical Corp. v. Shalala, 140 F.3d at 1066.(12)

IV. THE PUBLIC INTEREST WILL BE FURTHERED

BY THE INJUNCTION

The public's interest is in the "faithful application of the laws." Mova Pharmaceutical Corp. v. Shalala, 140 F.3d at 1066. "Our polity would be very different indeed if the courts could decline to enforce clear laws merely because they thought them contrary to the public interest; we decline to embark on that path." Id. at 1066-67 n. 6.

The destruction requirement and the prohibitions on transferee information being kept on government premises and on the registration of firearm transfers were designed by Congress to serve the public interest. In exchange for their compliance with other legal provisions, including the requirement of proof of identity and the creation of records on the transferee kept by the licensee but subject to inspection by the Secretary of the Treasury,(13) Congress has assured firearm transferees that their privacy will not otherwise be compromised. Congress decided what is in the public interest by enactment of the very provisions at issue here. It is the Attorney General's duty to obey those provisions and the responsibility of this Court to enforce them.

CONCLUSION

The Court should issue a preliminary injunction pursuant to 18 U.S.C. 922(t)(2) and to 103(h) and 103(i) of the Act, directing the Attorney General forthwith to require NICS, once it communicates a "proceed" response authorizing the licensee to transfer a firearm, immediately to destroy all records of the system with respect to the call and relating to the person or the transfer. This injunction should be applicable without regard to whether NICS is operated by the FBI or a POC.

Respectfully Submitted,
National Rifle Association of America, Inc., et al., Plaintiffs
By Counsel

Stephen P. Halbrook
Richard E. Gardiner
Attorneys for Plaintiffs
1. Affidavits are attached herewith.
2. "This instant check system will be used by licensed dealers
to check the eligibility of purchasers of all firearms and no records of legitimate purchasers may be kept." CONG. REC. S9080 (June 28, 1991) (statement of Senator Thurmond) (emphasis added).

3. 18 U.S.C. 922(s)(2). That provision was declared unconstitutional under the Tenth Amendment in Printz v. United States, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).

4. "The Brady bill in no way provides for a system of national gun registration--quite the opposite. In every instance where a handgun sale is approved under Brady, law enforcement officers must destroy the information they've been provided within 20 days." 139 CONG.REC. H9106 (Nov. 10, 1993) (statement of Rep. Roukema).

5. This "eliminates the concern that this would be back door gun registration." 139 CONG.REC. S16311 (Nov. 19, 1993) (statement of Senator Dole).

6. The above language was copied almost verbatim from 18 U.S.C. 926(a), which is directed to the Secretary of the Treasury. Enacted as part of the Firearms Owners' Protection Act of 1986, its purpose was explained by Senator McClure as follows:

The central compromise of the Gun Control Act of 1968--the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments.

131 CONG.REC. S9163-64 (July 9, 1985).

7. "The NICS Audit Log will contain information relating to each NICS background check requested by FFLs . . . ." This information is characterized as "personally identified information in the NICS Audit Log associated with allowed transfers . . . ." 63 FR at 58304. Noting objections to the solicitation and retention of a prospective transferee's Social Security number (SSN), the Department responded in part: "the SSNs of non-disqualified transferees will be destroyed with the rest of the transferees' identifying data at the end of 180 days." Id. at 58305.

8. Two individual plaintiffs, see Affidavits of John Does I and III, and numerous members of plaintiffs NRA and LEAA reside in States in which the NICS is operated by the FBI. See Affidavits of Sandler, 2, and Deeds, 2.

9. Three individual plaintiffs, see Affidavits of Jane Does I-II and John Doe IV, and numerous members of plaintiffs NRA and LEAA reside in States in which the NICS is operated by POCs. See Affidavits of Sandler, 2, and Deeds, 2.

10. Citing United States v. Giordano, 416 U.S. 505 (1974)(law conferring power on Attorney General and Assistant Attorney General specially designated by the Attorney General to authorize application to judge for wiretap did not permit Attorney General's Executive Assistant to apply). The purpose of the law was strictly to limit surveillance. Id. at 515.

11. This is not a case where a literal reading of the statute would lead to an absurd result, but even then "the agency does not thereby obtain a license to rewrite the statute." Mova Pharmaceutical Corp. v. Shalala, 140 F.3d at 1068.

12. In the Final Regulations, defendant acknowledged that "[a] significant number of Comments were received opposing the retention by the NICS of a temporary log. . . ." 63 FR at 58303. Thus, defendant was put on notice that the Audit Log stood on shaky legal ground. Moreover, the legislative debate on, and enactment of, 621 of P.L. 105-277 made abundantly clear that Congress agreed with the public comment.

13. 18 U.S.C. 923(g)(1)(A), (B).


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