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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 to 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," 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


ORAL ARGUMENT MARCH 17,2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


99-5270


NATIONAL RIFLE ASSOCIATION OF AMERICA, INC.,
et al., Appellants

V.

JANET RENO, Appellee


REPLY BRIEF FOR APPELLANTS


Appeal from the U.S. District Court
for the District of Columbia
District Ct. No. 98cv02916

Stephen P. Halbrook
Richard E. Gardiner
Counsel for Appellants


SUMMARY OF ARGUMENT

§ 103(i)(1) of the Brady Act prohibits the federal government from requiring that "any record" which is "generated by the [national instant criminal background check] system" (NICS) be "recorded at or transferred to" a government facility. This clearly precludes the NICS-generated records of approved firearm transferees which are recorded in the "audit log."

For the first time on appeal, the Attorney General argues that this does not apply to the records in the audit log but only serves to preclude the Attorney General from "imposing additional reporting requirements on firearms dealers." This ignores that the statute concerns any and all records "generated by" NICS, i.e., the very records which compose the audit log.

The Attorney General argues that the provision cannot be read literally because 18 U.S C. § 922(t)(2), in pi’oviding that all records of an approved transaction be destroyed, also provides that the unique transaction number and the date shall be retained. Yet there is nothing to prevent Congress from establishing a general rule and carving out limited exceptions. The need to carve out exceptions exhibits the breath of the prohibition.

§ I 03(i)(2) of the Act provides that no department of the United States may "use the system established under this section to establish any system for the registration of. . . firearm owners, or firearm transactions," except regarding ineligible persons. In ordinary linguistic usage, "registration" is a list of names kept by an official, and "any" means "some, no matter how much or low little." The audit log is a system of registration.

The Attorney General attempts to replace "any system of registration" with "any permanent system of registration. This restrictive reading has no lexicographical support. Nor does it have precedent in the National Firearms Act, which provides for a "central registry" of persons only so

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long as they are "entitled to possession of [certain] firearms," which changes with the transfer of ownership. 26 U.S.C. § 584 1(a)(3). conceptually, "any system of registration" may have a short or a long duration.

The Attorney General writes: "The audit log thus poses no threat, despite the fears of certain legislators, to the purported ‘civil rights of American gun owners." Yet it was for congress to decide what might threaten the "purported" civil rights of such persons, and it is not the place of the Attorney General to question congress’ enactment of § 103(1).

18 U.S.C. § 922(t)(2) commands that, on a determination that a transfer is lawful, NICS shall "assign" a unique number, "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) and all records of the system relating to the person or the transfer. No grace period is authorized in which to retain such records. By contrast, the Interim Provision provided that chief law enforcement officers conducting background checks must destroy all information about the transaction within 20 days. § 922(s)(6)(B)(i). That suggests application of the maxim that specific mention of one thing implies the exclusion of another, i.e., that no grace period is implied in § 922(t)(2).

Rather than focusing on the language that passed, the Attorney General is primarily interested in language that did not pass. The Congress enacted the Senate version of § 922(t)(2), which directed NICS to "destroy" the records, and not the House version, which used the terms "immediately destroy." However, this was among the differences that the Conference Report characterized as technical and not substantive.

The Attorney General also points to bills that were proposed later but not enacted. However, "this Court is reluctant to draw inferences from Congress’ failure to act." Schneidewind v. ANR

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Pipeline Co., 485 U.S. 293, 306 (1988). Members of Congress who do not support new bills may believe that existing law already provides for the subject of those bills.

The Attorney General asserts that "nothing in the statute affords a ‘privacy’ interest unique to the individual plaintiffs" and that the audit log must be kept to protect the "privacy" interests of a class of other persons. Yet the Act protects the privacy rights of only one class of persons, i.e., persons who are legally eligible to receive firearms and who are protected by § 922(t)(2) and § 103(i). The only other class of persons the Act concerns are persons who NICS determines are not legally eligible to receive firearms and who are not entitled to have their NICS-generated records destroyed under those provisions.

States acting as federal agents to administer the Act are bound by the Act’s privacy protections. Such states may operate their own separate background check systems independently of federal law and, when so doing, are not bound by the Act. But the Attorney General cannot appoint points of contact (POCs) as NICS agents for every purpose except for the Act’s privacy provisions.

In states where POCs administer NICS, the Attorney General requires federal firearms licensees (FFLs) to contact such POCs and does not allow them to contact the federal NICS system directly. By requiring an FFL to contact a POC which does not destroy records pursuant to the Brady Act, the Attorney General is in violation of § 103(i), which provides that no federal officer may require that any record "generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by . . . any State or political subdivision thereof. . . ." Similarly, if the Attorney General wishes to appoint a POC as an agent of NICS, she cannot declare that the POC is exempt from the destruction requirement of § 922(t)(2).

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The keeping of the audit log on law-abiding citizens for broad criminal enforcement purposes seriously implicates rights under the Fourth Amendment. A statute should be interpreted to avoid serious constitutional problems.

The Attorney General argues that the Court should not consider NRA’s concerns regarding the Fourth Amendment. However, it is pertinent for this Court to consider the uses to which the audit log, as explained in the commentary to the final regulations, will be and is being used. Given that it is the Attorney General’s own regulation and commentary which implicate the Fourth Amendment, she cannot complain if law-abiding persons who are in the audit log and may be subjected to unwarranted surveillance raise the Fourth Amendment implications of her policies. This Court is entitled to utilize all pertinent tools of statutory construction, including the avoidance of a reading of the statutes at issue that raises constitutional problems.

ARGUMENT

I. § 103(i) PROHIBITS RECORDATION OF NAMES AND IDENTITIES

The Attorney General argues that § 103(i) is irrelevant to this case, for Congress "spoke directly to the Attorney General’s retention of records" in § 922(t)(2). Brief for Appellee ("AG Br.") 23-24, 29-30. The implication is that Congress would protect the privacy interests of lawful firearm transferees in one subsection and would not do so elsewhere. Perhaps Congress felt it necessary to tell the Attorney General in more than one way not to keep records on law-abiding firearm owners. § 922(t)(2) and § 103(i) certainly complement each other. Apprehension in Congress that the Attorney General would not take these privacy protections seriously, in view of the regulation and the government’s position in this litigation, was fully justified.

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a. § 103(i)(1) Prohibits Transfer to and Recordation of
NICS-Generated Records at Government Premises

§ 1 03(i)(1) of the Act provides that no department of the United States may "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. . . ." A semicolon, the disjunctive "or," and a subparagraph prohibiting a registration system follow, including an exemption for records about persons legally ineligible to receive firearms.

Both the commentary to the final regulation and defendant’s briefs in the court below are silent on the meaning of § 103(i)(1). Now, for the first time since that provision was enacted in 1993, counsel has invented the argument that § 103(i)(1) only "precludes the Attorney General from requiring that third parties record or transfer information to a federal facility" and "does not implicate the Attorney General’s retention of NICS records." AG Br. 12-13. More specifically, § 103(i)(1) has no effect on "the Attorney General’s retention of records of allowed transfers," and instead it addresses what the federal government "may require third parties to do with records generated by the NICS system." It "prohibits the Attorney General from imposing additional reporting requirements on firearms dealers, in order to centralize the records of dealers and establish a federal firearms registry." AG Br. 27.

Other than creative lawyering, the source of this novel interpretation is a mystery. Certainly nothing in the statute suggests this reading, nor does a single iota of the legislative history. § 103(i)(1) prohibits any federal department from requiring that "any record or portion thereof generated by the system established under this section" be "recorded at or transferred to" any federal or state facility. "This section" means § 103 of the Brady Act, which is entitled "National Instant

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Criminal Background Check" and which is the comprehensive mandate to the Attorney General to establish the NICS. The following Aristotelean syllogism, taught in freshman college courses, is in order:

§ 103(i)(1) refers to records "generated by" NICS, i.e., records created by the FBI whilp operating NICS. Since such records plainly are not firearms dealers records, § 103(i)(1) has nothing to do with reports by dealers. Thus, § 103(i)(1) is not a restriction on requiring additional reporting by dealers, but is a restriction on records created by operation of NICS. 1

The agency itself has never articulated the above interpretation, and "the courts may not accept appellate counsel’s post hoc rationalizations for agency action." Motor Vehicle Mfrs. Assiz. v. State Farm Mutual, 463 U.S. 29, 50(1983). Bowen v. Georgetown University Hospital, 488 U.S. 204, 212-13 (1988) stated about agency arguments invented during litigation in the context of Chevron and similar cases:

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The prohibitory language of § 103(i) was taken from 18 U.S.C. § 926(a), as amended by the Firearms Owners’ Protection Act of 1986:

This only prohibits, according to the Attorney General, ATF from imposing "additional requirements . . . beyond those in existing law, to transfer records of firearms transactions to the ATF" and "does not place any restriction on what ATF may do internally with the information it otherwise acquires from firearms dealers." 2 Since § 926(a) is "nearly identical" to § 103(i), the latter only "restricts the federal government from placing additional reporting requirements" on FFLs, such as requiring FFLs to provide the FBI with the forms completed by firearms transferees. AG Br. 28-29.

Despite the "nearly identical" language of § 926(a) and § 103(i), the classes of records affected are diametrically different. § 926(a) banishes from ATF premises "records required to be maintained under this chapter," i.e., records maintained by licensees at their premises, not some

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illusive "additional" records. 3 By contrast, § 103(i) affects government-created records, i.e., records "generated by" NICS. Thus, contrary to the Attorney General, the limitations imposed by § 926(a) cannot be transposed to § 103(i)(1).

§ 103(i)(1) does not "prohibit the federal government from making any record of an allowed transfer," continues the Attorney General, because nothing in the "legislative history" so states. AG Br. 29. Of course, nothing in the legislative history supports the Attorney General’s argument either. In any event, it is "the plain language of the statute" that must govern an agency. National Rifle Ass’n v. Brady, 914 F.2d 475,483-84(4th Cir. 1990), cert. denied499 U.S. 959 (1991) (invalidating ATF regulations). Tafflin v. Levitt, 493 U.S. 455, 472 (1990) (Scalia, J., concurring) notes: "One can hardly imagine an ‘implication from legislative history’ that is ‘unmistakeable’— i.e., that demonstrates agreement to a proposition by a majority of both Houses and the President— unless the proposition is embodied in statutory text to which those parties have given assent." Yet the Attorney General would nullify the statutory text here because it is allegedly not supported by "legislative history. 4

§ 103(i)(1) cannot mean what it says, argues the Attorney General, for elsewhere the Act

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provides that NICS, on assigning a unique identification number to an approved transfer and communicating it to the FFL, shall "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." § 922(t)(2). Retention of the unique number and the date, claims the Attorney General, are incompatible with a literal interpretation of~ 103(i)(1). AG Br. 30. This suggests that Congress is not allowed to establish a general rule and to make exceptions. "In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1069 (D.C. Cir. 1998). 5

Finally, the Attorney General contends that if § 103(i)(1) barred retention of records of allowed transfers, § 103(i)(2) would be "surplusage" because it prohibits registration of firearm owners and transactions, but information for such registration would have already been disallowed by § 103(i)(1). AG Br. 31. Yet, as shown below, the Attorney General argues that keeping a listing of persons and identities of approved transfers for six months is not "any system of registration" prohibited by § 103(i)(2). Under this view, § 103(i)(1) would not be "surplusage." In any event, by enacting both parts of § 103(i) as well as § 922(t)(2), Congress attempted to tell the Attorney General in three separate ways not to keep records on lawful firearm transferees.

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b. § 1 03(i)(2) Prohibits Listings of Firearm Owners or Transactions

§ 103(i)(2) of the Act provides that no department of the United States may "use the system established under this section to establish any system for the registration of. . . firearm owners, or firearm transactions," except regarding ineligible persons. As the Attorney General observes, the Act does not define "registration." AG Br. 24. Muscareio v. United States, 524 U.S. 125, 127-28 (1998) applied the following interpretative method: "We begin with the statute’s language. The parties vigorously contest the ordinary English meaning of the phrase ‘carries a firearm.’. . . Consider first the word’s primary meaning." The Court proceeded to quote from dictionaries. Id. See also United States v. Bossinger, 12 F.3d 28, 29-30 (3d Cir. 1993) (using dictionaries to discover "common parlance" and "find[ingJ no authority, legal or lexicographical," for restrictive use of term argued by government).

"Register" means "a record or list of names. . ., often kept by an official appointed to do so," and "registration" means "(1) a registering or being registered (2) an entry in a register." Webster’s New World Dictionary 1130 (1988). "Any" means "some, no matter how much or how little" or "even one; the least amount or number of." Id. The audit log is clearly encompassed in the terms "any" system of"registration." Oblivious of the ordinary linguistic usage enacted by Congress, the Attorney General would rewrite the law only to prohibit "any permanent system" for the registration of firearm owners and transactions, rather than to prohibit "any system" for registration. It is agreed that registration means "a listing," but not a listing if just kept for a "short" period of time. AG Br. 25. This interpretation is precluded by the statute’s use of the word "any."

While the Attorney General does not state whether the "permanence" of the registration system must mean during the life of the registered person or for eternity, she points to the National

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Firearms Act as such a system. Yet 26 U.S.C. § 584 1(a)(3) provides for a central registry which limits its duration to only so long as a person is "entitled to possession of the firearm," and § 584 1(c) provides that "each firearm transferred shall be registered to the transferee," which may be constantly changing. No provision is made for registration of transferors who are no longer entitled to possession. Registration may well be of only "short" duration. Further, § 5802 requires an annual registration of dealers, but is silent about former dealers who are out of business. The temporary duration of the registration does not preclude it from being registration.

The Attorney General surmises that the audit log "reveals virtually nothing about the universe of firearms owners." AG Br. 26. However, § 103(i)(2) prohibits "any system for the registration of • . . . firearm owners, or firearm transactions," even if it does not reveal the entire "universe" of firearm owners.

Quoting congressional concerns against a master list of firearm owners, a consequence of which could be confiscation, the Attorney General argues that "the audit log would be of no use in that regard." It seems that a registry of approved firearm transactions reveals nothing about who actually "owns" firearms or whether anyone actually "purchased a firearm." AG Br. 26. Yet it would be ludicrous not to presume that almost all approved transactions actually are consummated and actually result in firearm ownership.

The Attorney General concludes: "The audit log thus poses no threat, despite the fears of certain legislators, to the purported ‘civil rights of American gun owners." AG Br. 27. Yet it was for Congress to decide what might threaten such civil rights, and the majority in Congress acceded to what the Attorney General characterizes as "the fears of certain legislators" in enacting § 103(i). Bluntly put, the provisions of the Act at issue were enacted to protect the privacy interests of the

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class of lawful transferees from the Attorney General. It is the duty of the Attorney General to administer the law as written, not to argue that Congress was mistaken.

II. THE MEANING OF § 922 (t)(2) MUST BE
DETERMINED FROM THE LANGUAGE THAT
PASSED, NOT LANGUAGE THAT DID NOT PASS

§ 922(t)(2) commands that, on determination that a transfer is lawful, NICS shall assign a unique number, 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." No grace period was authorized in which to retain such records. By contrast, the Interim Provision provided that chief law enforcement officers (CLEOs) conducting background checks "shall, within 20 business days after the date the transferee made the statement . . ., destroy the statement, [and] any record containing information derived from the statement . . . ." § 922(s)(6)(B)(i). That suggests application of the maxim expressio unius est erclusio alterius (specific mention of one thing implies the exclusion of another). Leatherman v. Tarrant County NICU, 507 U.S. 163, 168 (1993).

Rather than focusing on the language that passed, the Attorney General is primarily interested in language that did not pass. The Congress enacted the Senate version of § 922(t)(2), which directed NICS to "destroy" the records, and not the House version, which used the terms "immediately destroy." Cp. NRA Br. 22-23 with AG Br. 19-20. The Attorney General disregards several critical circumstances. Senator Craig stated of the Senate version that the records "should not stand once the background check is done." CONG REC. S 16328 (Nov. 19, 1993). No one disagreed, and in fact in the entire legislative history of the Act, no one suggested that records could be retained. Further, the Conference Report stated:

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H.R. Conference Report No. 103-412, at 13 (Nov. 22, 1993). The report proceeded to list seven of these "differences" between the House and Senate versions. Id. at 13-14. The destruction requirement was not among these differences, meaning that that subject was among the "clerical corrections, conforming changes. . ., and minor drafting and clerical changes."

Members of Congress had every reason to believe that the language as passed required that records be destroyed forthwith on approval of the transaction. The term "destroy" was used without any grace period, unlike the 20-day allowance for record destruction accorded to CLEOs. It defies logic to argue that Congress intended to allow the Attorney General a far greater time period to destroy automated records than the 20-day period Congress authorized for paper records.

The Attorney General points to bills that did not pass after enactment of the Brady Act. AG Br. 20-23. This proves nothing about the meaning of § 922(t)(2) or the mandate of § 103(i). Rejecting "petitioners’ reliance on Congress’ subsequent failure to enact proposed legislation," Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306(1988) noted: "This Court is reluctant to draw inferences from Congress’ failure to act." Members of Congress who do not support new bills may believe that existing law already provides for the subject of those bills. Id. See Fogarly v. United Stales, 340 U.S. 8, 13-14 (1950) (subsequent legislative action did not "supplant the contemporaneous intent of the Congress which enacted" the law in question); Walsh v. Brady, 927 F.2d 1229, 1233 n. 2 (D.C.Cir. 1991) (referring to "oxymoronic ‘subsequent legislative history" which "can add nothing").

No comparable circumstances existed in the cases cited by the Attorney General. AG Br. 20.

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Hutto v. Finney, 437 U.S. 678, 694 (1978) involved statutory language about which the Court stated:

Thus, the statutory language is the source of the Court’s holding that attorney’s fees could be awarded against a state. Congress’ rejection of bills to immunize states from fee awards was only one of several circumstances that buttressed the language of the statute. Id. The Court did not, as the Attorney General would do here, emasculate the language of the statute as passed by Congress through inference piled on inference about words that were not included in the final language.

Similarly, the basis of the decision in Autolog Corp. v. Regan, 731 F.2d 25, 32 (D.C. Cir. 1984) is a far cry from what the Attorney General claims. Autolog explained: "First, Congress has acquiesced in Customs’ interpretation for almost a century and has not acted to change it during several revisions of the coastwise laws." Id. (emphasis added). The Attorney General is hardly in this position here. The court also found it relevant that Congress rejected a proposal that would have changed this long-term interpretation. Id. But that fact alone was hardly the basis of the statutory interpretation set forth in that case.

The Attorney General seeks to blow up an incidental footnote in R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 147 n. 16 (1986) into a dispositive rule of law which does not exist. The footnote states that rejection of certain amendments "suggests" that Congress intended a given result. Id. The meaning of the Warehousing Act, the statute mentioned in that footnote, was not even disputed in that case. The issue in the case was whether the federal law preempted certain state ad valorem taxes.

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The Attorney General submits that "there is no canon of statutory construction" that an agency must be in compliance with the law "when Congress does not establish a precise timetable." AG Br. 21: Neither § 922(t)(2) nor § 103(i) exempt the Attorney General from their proscriptions for such time period as she may declare violation thereof is "reasonable." The Attorney General’s argument is comparable to asserting that no precise timetable existed in which the government was required to comply with the privacy requirements at issue in cases such as Alexander v. FBI, 971 F. Supp. 603, 605 (D.D.C. 1997) (Filgate), United States v. Bacheler, 611 F.2d 443,447 (3d Cir. 1979) (unlawful seizure of tax records), and Hobson v. Wilson, 737 F.2d 1, 7 (D.C. Cir. 1984) (illegal FBI surveillance).

The "timetable" here is a question of statutory construction. § 922(t)(2) contains three seriatim commands: "assign," "provide," and "destroy." Plainly, "assign" and "provide" must be carried out at once since § 103(b) requires that the information "be supplied immediately." Application of familiar rules of statutory construction compel the conclusion that "destroy" must also have been intended to have been done immediately. "It is a rule laid down by Lord Bacon, that copulatio verborum indicat acceptationem in eodem sensu, the coupling of words together shows that they are to be understood in the same sense. . . ." Neal v. Clark, 95 U.s. 704, 708-09 (1877). See Gustafson v. AlloydCo., 513 U.S. 561, 575 (1995) ("a word is known by the company it keeps (the doctrine of noscitur a sociis). This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.. . .")

The Attorney General asserts that "nothing in the statute affords a ‘privacy’ interest unique to the individual plaintiffs." AG Br. 22. An audit log must be kept, the Attorney General argues, to protect the "privacy" interests of another undefined class of persons. But, as the Act potentially

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impairs the privacy rights of only one class of persons, i.e., persons who are legally eligible to receive firearms, it concomitantly protects them. The only other class of persons the Act concerns are persons who NICS determines are not legally eligible to receive firearms; they, however, are not entitled to have their NICS-generated records destroyed under those provisions.

The Act creates no privacy rights for persons about whom NICS "maintains information," states the Attorney General, but such persons privacy rights "are defined in the Privacy Act, 5 U.S.C. § 552a." AG Br. 22. To the contrary, § 922(t)(2) and § 103(i) prohibit possession by the government of records on a defined class of persons; the Privacy Act prohibits the government from disclosing records to the public. § 105 of the Brady Act provides that its terms shall not "alter qr impair any right or remedy" under the Privacy Act, but this does not imply that additional privacy interests are not protected by the Brady Act.

In sum, § 922(t)(2) requires NICS to destroy records of lawful firearm transferees on approval of the transaction. The audit log is unlawful.

III. STATES SERVING AS FEDERAL AGENTS IN ADMINISTRATION
OF NICS ARE BOUND BY FEDERAL PRIVACY REQUIREMENTS

The NRA does not contend that states may not have their own background check systems (with their own record destruction or retention requirements) or that federal law preempts state law on this subject. See AG Br. 32. NRA’s contention is that states acting as federal agents to administer the Act are as bound by the Act’s privacy protections as the federal government. Such states may operate their own separate background check systems independently of federal law and, when so doing, are not bound by the Act. But the Attorney General cannot appoint points of contact (POCs) as NICS agents for every purpose except for the Act’s privacy provisions.

The critical fact here is that, in states where POCs administer NICS, the Attorney General

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requires FFLs to contact such POCs and does not allow them to contact the federal NICS system directly. 28 C.F.R. § 25.6(d). 6 By requiring an FFL to contact a POC which does not destroy records pursuant to the Brady Act, the Attorney General is in violation of — 103(i) of the Act, which provides that "no department, agency, officer, or employee of the United States," which includes the Attorney General, "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. . . any State or political subdivision thereof. . . ." In the case of POC states which do not destroy the record on approval of the transaction, the regulation directly requires the NICS- generated record to be recorded at or transferred to a state facility.

The Attorney General argues that § 103(i) only prevents the federal government from establishing a registration system, but wholly ignores § 103(i)(1). She also argues that "all records of the system" which must be destroyed under § 922(t)(2) refers only to the NICS system, and "this directive does not apply to state systems or data bases." AG Br. 32. To the contrary, when the Attorney General directs that an FFL must contact a POC in lieu of NICS, the POC is acting as an agent of NICS. Otherwise the Attorney General would have no authority to require the FFL to contact the POC. § 922(t)(1) provides that an FFL

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Unless the POC is, for purposes of the statute, a part of the "system," i.e., NICS, an FFL has no legal obligation to contact the POC. Further, as provided by § 922(t)(2), if receipt of the firearm would not violate the law, "the system shall" assign a unique number to the transfer, provide it to the FFL, 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." The Attorney General cannot treat the POC as an agent of "the system" for every purpose except the destruction requirement. Compare 28 C.F.R. § 25.6(d) through (1) (POCs serve every NICS function in POC-designated states) with § 25.9(d) (transferee records in POC states not subject to Act’s destruction requirement if such records are "created and maintained pursuant to independent state law regarding firearms transactions").

The Attorney General argues that no harm is done because the State would retain the same information from its own State-required background check. AG Br. 33. This presupposes that State law generates the same information as federal law, which may or may not be the case. In any event, the failure to require compliance with the Act’s destruction requirement is not excused by speculation that no harm was done. 7

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IV. THE ATTORNEY GENERAL MUST RAISE HER POLICY
CONCERNS TO CONGRESS, NOT TO THIS COURT

A. Appellee’s Claims Based on Affidavits are Not
Properly Before the Court and Should be Stricken

It is fundamental that, in a motion to dismiss under Rule 12(b)(6), the court must accept as true all allegations of fact in the complaint. Moore v. Agency for International Development, 994 F.2d 874, 875 (D.C.Cir. 1993). However, the Attorney General makes a number of factual claims that contradict those allegations and which are based on two affidavits which are not properly before the Court in this appeal. E.g., AG Br. 16-17. These affidavits (Joint Appendix 102-12 1) were submitted by defendant in opposition to NRA’s motion for a preliminary injunction and concern alleged reasons for the need of the audit log. 8 The district court did not rely on these affidavits in its order dismissing this suit for failure to state a claim upon which relief can be granted pursuant to F.R.Civ.P. 12(b)(6). Thus, no claim could be made that the district court implicitly converted the motion to dismiss into a motion for summary judgment. See F.R.Civ.P. 12(b) (last sentence). 9 The Court should disregard any statements in appellee’s brief based on the affidavits, i.e., references to the Joint Appendix pages 102 through 121.

Should the Court treat these statements as arguments and not evidence, they should be rejected. For instance, it is asserted that an audit log is needed so that supervisors can review decisions made by examiners to ensure that the decisions are correct. AG Br. 16-17. If is unclear

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why the supervisor would do so only after the decision has been made rather than at the time of the decision, which could prevent an improper approval or refusal.

B. "Necessity" is Not a Defense to the Attorney
General’s Failure to Comply with the Law Here

The Attorney General appears to argue that it is just plain impossible to run the system the way Congress mandated and that the audit log is necessary for a variety of policy reasons. AG Br. 15-17. The Attorney General must address these policy concerns to Congress, not to this Court. See National Rifle Ass’n v. Brady, 914 F.2d 475, 483-85 (4th Cir. 1990), cert. denied 499 U.S. 959 (1991); Trahan v. Regan, 824 F.2d 96, 105 (D.C. Cir. 1987).

The Attorney General’s argument that an audit log of 6 months duration (3 months under~a proposed rule) is simply necessary to run a system of background checks is belied by the Interim Provision. § 922(s)(6)(B)(i) of that provision mandated that CLEOs destroy all records concerning a lawful firearms transferee within 20 days. This 20-day grace period was granted because many of the records were manual and the law was already an imposition on state and local officials. 10 Nothing exists which suggests that any audit log was maintained or considered necessary even within this narrow 20-day window. Yet the Attorney General does not argue that the Interim Provision was flawed for this reason.

Eagle v. Morgan, 88 F.3d 620 (8th Cir. 1996) is cited for the proposition that police have made unauthorized use of criminal records databases, such as NCIC, and the audit log is needed to detect such misuse. AG Br. 17 n. 4. However, the wrongdoing in that case was not detected by an

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audit log. See 88 F.3d at 622-23. The lesson that police may misuse databases is exactly the point Congress had in mind when it precluded retention of records on approved transferees.

V. THE STATUTE SHOULD BE CONSTRUED TO
AVOID FOURTH AMENDMENT PROBLEMS

The keeping of the audit log on law-abiding citizens for broad criminal enforcement purposes seriously implicates rights under the Fourth Amendment. See NRA Br. 3 5-40. "Where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1222 (1999).

The Attorney General argues that NRA lacks standing to raise a Fourth Amendment claim. AG Br. 35. NRA has not made a Fourth Amendment claim. Rather, the Fourth Amendment is invoked since it is pertinent for this Court to consider the uses to which the audit log, as explained in the commentary to the final regulations, will be and is being used. Contrary to the Attorney General’s claim that the NRA’s concerns are "speculative," AG Br. 36, the regulation and the commentary explain that both FFLs and transferees will be subjected to FBI "audits," i.e., random criminal investigations. See NRA Br. 36, quoting 28 C.F.R. § 25.9(b)(2) and the commentary at 63 FR 58303, 58304 (Oct. 30, 1998). The Attorney General argues that the audit log is necessary in part for such criminal investigations. 11 The Attorney General cannot expect to explain why she believes the audit log is necessary to ferret out crimes and then protest if law-abiding persons who are in the audit log, and may be subjected to unwarranted surveillance, raise the Fourth Amendment implications of her policies. This Court is entitled to utilize all pertinent tools of statutory

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construction, including the avoidance of a reading that raises constitutional problems.

In sum, § 103(i) and § 922(t)(2) should be interpreted according to their plain words and also in a manner as to avoid Fourth Amendment concerns.

CONCLUSION

The Court should reverse the judgment of the district court.

CERTIFICATE OF COMPLIANCE

Compliance with F.R.App.P. 32(a)(7)(B) has been met, in that the brief contains 6977 words.

Respectfully Submitted,

National Rifle Association of America, Inc., et al.,
Appellants

By Counsel
Stephen P. Halbrook
Richard E. Gardiner
Attorneys for Appellants


NOTES

1. The Attorney General argues that somehow this "additional information" is prohibited because it would be helpful in creating a registry of firearms owners and transactions. But it is hard to imagine what more information would be needed to create a registry than that already in the audit log, which includes the name and full identification of the firearms transferee. 28 C.F.R. § § 25.7(a) & (b), 25.9(b)(1). text@note1

2. The Attorney General cites and discusses a report of the General Accounting Office on this topic. AG Br. 28. This report is not part of the record in this case and reference thereto should be disregarded. text@note2

3. § 923(g)(1)(A) requires FFLs to maintain records of receipt and sale of firearms at their premises, but adds that FFLs "shall not be required to submit to the Secretary" information from such records "except as expressly required by this section." ATF has authority ta inspect FFL records, § 923(g)(1)(A) & (B), but subparagraph (D) provides that the Secretary may not seize records unless they constitute material evidence of a crime. In short, ATF has no authority to maintain records on lawful firearm transferees text@note3

4. The Attorney General urges that, if Congress intended the position argued by NRA, "there would have been no need for the numerous attempts . . . through amendments, appropriations restrictions or imposition of penalties, to impose a requirement of immediate or near-immediate destruction of records of allowed transfers." AG Br. 29. The Attorney General’s failure to comply with § 1 03(i)(1), not Congress’ failure to express its intentions, is the reason why some members of Congress supported such bills. text@note4

5. The Attorney General notes that § 922(t)(1) allows NICS as much as three days to communicate approval of a transaction to an FFL. Thus, if"no record of an allowed transfer could ever be made, the FBI could not be able to keep information on the inquiry during that three day window." AG Br. 30. However, no "allowed transfer" exists during that three-day period as long as the FBI has not communicated its approval to the licensee. The destruction requirement occurs after, not before, NTCS approves a transfer. text@note5

6. That provision states: "In states where a POC is designated to process background checks for the NICS, FFLs will contact the POC to initiate a NICS background check." text@note6

7. In support of the authority for POCs to act as NICS agents in the Permanent Provision, which is silent on any such state role, the Attorney General points to the Interim Provision, under which the chief law enforcement officers of the states (and not the federal government) were expressly commanded to conduct the background checks. AG Br. 34. If anything, that again suggests application of the maxim expressio unius est exclusio alterius. text@note7

8. NRA filed its own affidavits from computer experts disputing the Attorney General’s affidavits. JA 55-82. Affidavits were included in the Joint Appendix only at appellee’s request. text@note8

9. Further, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). No opportunity for discovery existed here. text@note9

10. The Attorney General asserts that, after Printz v. United States, 521 U.S. 98 (1997) declared unconstitutional the command to CLEOs to conduct background checks, "state background checks were undertaken voluntarily." AG Br. 4 n. 1. This is supported neither by authority nor other citation. text@note10

11. A proposed rule is pending under which the ATF would participate in these audits. AG Br. 36, citing 64 F.R. 10264 (1999). This does not dispel concerns about unwarranted surveillance. text@note11


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