Posted on 01/20/2008 1:44:26 AM PST by Redcloak
"...Firearms tracing, using eTrace technology, allows law enforcement agencies to identify trafficking trends of DTO's and other criminal organizations funneling guns into Mexico from the United States. In addition, eTrace assists criminal investigators to develop investigative leads in order to put firearms traffickers and straw purchasers (people who knowingly purchase guns for prohibited persons) behind bars before they cross the border. ATF recently deployed the eTrace technology in U.S. consulates in Monterrey, Hermosillo and Guadalajara, with six additional deliveries scheduled by March 2008 to the remaining U.S. consulates in Mexico. ATF continues to meet with the government of Mexico to discuss deploying a Spanish-language version of eTrace to other agencies in Mexico..." - Excerpt from an ATFE News Release on the expansion of the eTrace firearms "possessor" tracking system into Mexico, released on January 16, 2008 "...Colombia today dedicated its new Explosives Information and Firearms Tracing Center (CIARA), a U.S.-funded project that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) helped establish. CIARA, three years in the making and the first bomb data and firearms tracing center of its kind in South America, will serve as the focal point for all Colombian military and law enforcement efforts on explosives and firearms tracing. Funded through U.S. Plan Colombia assistance program, its mission will be to support the Colombian judicial process by focusing on the prevention and investigation of bombings and other explosives incidents, and by tracing firearms used in crimes and terrorist attacks. Located on the grounds of the Colombian Judicial Police headquarters here, CIARA includes the Dfuze international explosives database that ATF helped develop, an explosives repository, national response and post-blast bomb squads, a biochemical unit and a firearms tracing program that will be linked to the ATF's eTrace system and Integrated Ballistic Identification System (IBIS). eTrace allows participating law enforcement agencies to submit, via the Internet, firearms tracing requests in real time and directly to the computer at ATF's National Tracing Center in the United States. IBIS is the software that allows law enforcement to image and compare cartridges and other crime gun evidence..." - Excerpt from an ATFE Press Release on the expansion of of the eTrace system to Colombian law enforcement officials, released December 6, 2006 "...The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) National Tracing Center, a service oriented entity, has developed an electronic interface to its firearm tracing services, called eTrace....Recovered firearms are traced by Law Enforcement Agencies a) to link a suspect to a firearm in a criminal investigation; b) to identify potential firearms traffickers, whether licensed or unlicensed sellers, and ; c) to detect in-state, interstate, and international patterns in the sources and kinds of gun crimes... ATF has extended its on-going commitment to the law enforcement community by providing approved agencies with a paperless firearm trace submission system that is readily accessible through a connection to the worldwide web (Internet)...This tool not only provides users with the ability to electronically submit trace requests, but also to monitor the progress of traces and efficiently retrieve completed trace requests in a real-time environment... To access and utilize the eTrace application, the only infrastructure an agency needs is a personal computer and access to the World Wide Web, thus empowering even the smallest of agencies to comprehensively trace their firearms and perform on-line data analysis. eTrace access is achieved by obtaining a valid User ID. and password from ATF and authenticated using the eTrace site on the internet. Each participating agency also enters into a Memorandum of Understanding (MOU) with ATF. The MOU is intended to formalize a partnership between the participating agencies with regard to policy and procedures relative to the access and utilization of eTrace services. Successful access allows users the ability to enter new traces, view existing traces, and run reports on traces for which they are authorized..." - Excerpt from the "Privacy Impact Assessment for the eTrace", released on May 30, 2006 by the ATFE "...The military also has fallen victim to spectacular security breaches, a result of too-rapid expansion, Defense Minister Juan Manuel Santos acknowledged. ' It's like a child who grows too fast. There are going to be problems,' Santos said, adding that to clean house, his ministry has dismissed 360 officers in the last two years..." - Excerpt from a Los Angeles Times story by Chris Kraul on issues of concern about the current status of the Colombian military and the current war on the FARC and the drug lords in that tiny country, January 18, 2008 To All, What, no Cuban paratroopers? Let us hope that the firearms manufacturers do not number their products sequentially: In The Name Of The King?: It sounds like firearms owners and activists are going to have tractor-trailer-sized loads of questions for their elected representatives shortly, given recent press releases from those "service-oriented" souls at the ATFE. It seems that ATF may have been expanding firearms tracing access in quite a number of foreign locales over the past few years (Germany, Britain, Canada, and Interpol HQ are also on the list). And, in at least in the case of Colombia, foreign law enforcement officials may currently have access to U.S. domestic firearms trace databases. Said databases possibly contain such "possessor" information as names, addresses, driver's license numbers, Social Security numbers, and theoretically even serial numbers of additional firearms that are required by various states to be registered with authorities. Given the importance of the access of trace information to those mayors and activists currently focused on a "torts" approach to knock down the Tiarht Amendment and deconstruct U.S. firearms ownership, the thought of them being helped by foreign governments who have espoused a long-term support for U.N. personal disarmament policies is distressing to say the least. Add to this the possibilities towards identity theft and the nature of the human smuggling racket, one could easily think that Neville Chamberlain's reign as the Human Race's Most Gullible Public Official may finally be coming to an end. (What would it truly take to compromise a Columbian police official whose name just happens to be on the latest "Memorandum of Understanding"? Threatening his family with violence? Bribing him with some of the cocaine cartel's pocket change? Both?) Now, it is possible that access to the eTrace database is more limited, and more thoroughly supervised, than what would seem to be indicated in the press releases documented above and below. Hopefully the ATF can be importuned to "splain" most thoroughly how they are currently guarding some of the most private data that can had in a government database of a free society. Given that DEA and other law enforcement undercover operatives lives may depend upon there being massively strict protocols, the questions cannot be answered soon enough, nor swept under the rug due to the exigencies of the election cycle and the lame-duck status of the current Administration. Interested parties are probably best advised to warm up their word processors and email programs. Otherwise, the Voters From Hell might just come to breakfast if they are not dealt with promptly and thoroughly. Stay tuned. Links at: http://www.atf.gov/press/2008press/011608proj_gunrunner.pdf http://www.atf.gov/press/fy05press/060205explosivestraining.htm http://www.atf.gov/press/fy06press/field/120606colombia_dedicates.pdf http://www.atf.gov/about/foia/pia/privacy_impact_assessment-etrace-pclo.pdf http://www.washingtonpost.com/wp-dyn/content/article/2008/01/18/AR2008011803277_pf.html
I'm sure that we all want to see the BATFE doing its part to track down those who shouldn't have access to firearms. (Narcoterrorists from Columbia come to mind.) However, one has to wonder how this aim is furthered by sharing sensitive US information with governments who's track records show that they can't quite separate the sheep from the goats when it comes to their law enforcement. The initial story about cooperation with Mexico somes on the heels of a story about the police in Rosarito Beach having to be disarmed by the Mexican army. Earlier, the Tijuana police were similarly disarmed by the army. Do we really want foreign police having access to this information when we don't know from day to day who the individual officers are really working for?
Do we want Mexican drug trafficers to have the addresses of American gun owners?
This is F’KING insanse!
OK. So, how many criminals has this progrm identified? Captured? Convicted?
Oh, that’s what I thought.
B. Judge Alitos Dissent
Judge Alito began his dissent in Rybar by asking, Was [Lopez] a
constitutional freak? Or did it signify that the Commerce Clause still
imposes some meaningful limits on congressional power?158 Troubled by
the reasoning of the majority, Judge Alito did not find enough of a
difference between the Machine Gun Statute and the Gun-Free School Zone
Act to have upheld the formers constitutionality in Rybar.159 Judge Alito,
who dissent[ed] slightly more often than the typical appeals court
judge,160 asserted several general reasons why the Machine Gun Statute
should be held unconstitutional. First, Judge Alitos dissent stated that both
the Gun-Free School Zone Act and the Machine Gun Statute similarly lack
a jurisdictional element in that they do not require federal prosecutors to
prove that the firearms were possessed in or affecting interstate
commerce.161 Second, Judge Alito stated that in passing both statutes,
Congress made no findings regarding the link between the intrastate activity
regulated by these laws and interstate commerce, and that it is
unreasonable to confine Lopez to its own peculiar circumstances.162 Part
II.B.1-2 explores Judge Alitos reasoning.
1. Judge Alito Rules Out Channels and Instrumentalities
Before addressing what he believed to be the majoritys two separate
theories163 for upholding the Machine Gun Statute, Judge Alito first
addressed whether the Machine Gun Statute regulated channels or
instrumentalities of interstate commerce. Judge Alito concluded that the
158. Id. at 286 (Alito, J., dissenting); see Dean A. Strang, Felons, Guns, and the Limits of
Federal Power, 39 J. Marshall L. Rev. 385, 398 (2006) (Perhaps because the Supreme
Court split 5-4 in Lopez, most federal appellate judges have treated that decision as a
constitutional freak, to repeat Judge Samuel A. Alitos colorful term.).
159. Rybar, 103 F.3d at 286-87 (Alito, J., dissenting). Some commentators have agreed
with Judge Alitos rationale in finding the similarities between Lopez and Rybar to be
striking. See Debbie Ellis, A Lopez Legacy?: The Federalism Debate Renewed, But Not
Resolved, 17 N. Ill. U. L. Rev. 85, 113-14 (1996) (Both [the Machine Gun Statute and the
Gun-Free School Zone Act] are criminal statutes which regulate the purely intrastate
possession of guns, both lack jurisdictional elements, and Congress made no findings
regarding the link between the intrastate activity, possession, and interstate commerce.); see
also Carhart, supra note 82, at 864 (discussing the fact that some commentators have found
Lopez and Rybar to have similarities).
160. Adam Liptak & Jonathan D. Glater, Alitos Dissents Show Deference to Lower
Courts, N.Y. Times, Nov. 3, 2005, at A1.
161. Rybar, 103 F.3d at 287 (Alito, J., dissenting); see supra note 152 (establishing that
Judge Jones in the U.S. Court of Appeals for the Fifth Circuit came to a similar conclusion in
her dissent).
162. Rybar, 103 F.3d at 287 (Alito, J., dissenting).
163. Id. at 291; see infra Part II.B.2.a-b.
2007] THE MACHINE GUN STATUTE 2289
Machine Gun Statute did not regulate the channels or instrumentalities of
interstate commerce.164 He wrote that the circuits that upheld the statute on
such grounds fundamentally misunderstood the first category set out in
Lopez.165 Judge Alito concluded that to justify the statute on the grounds
that Congress is regulating channels of commerce, Congress would have to
have regulated, for economic or social purposes, the passage in interstate
commerce of either people or goods.166 Moreover, Judge Alito believed
that the Machine Gun Statute would fall within this category if it barred
the interstate shipment of machine guns, but of course that is not what it
does.167 Rather, according to Judge Alito, the statute goes much farther
and reaches the wholly intrastate possession of machine guns.168
Judge Alito additionally expressed concern with the reasoning asserted
by the Fifth, Sixth, and Ninth Circuits that there could be no unlawful
possession under [the Machine Gun Statute] without an unlawful
transfer.169 First, he argued that a semi-automatic weapon could be
converted by its owner into an automatic weapon.170 Moreover, a person
could have lawfully possessed a gun under 18 U.S.C. § 922(o), which
permits possession under governmental authority but then exceeds the
scope of that authority or retains possession after it has terminated.171
Such a transfer could be wholly confined to intrastate activities without
extending to interstate activities.172 Finally, Judge Alito wrote that the
arguments made by the Fifth, Sixth, and Ninth Circuits were more in line
with the third category established in Lopez because they describe activities
that, although intrastate, have an impact on interstate activities.173
Judge Alito summarized instrumentalities of interstate commerce as the
means of conveying people and goods across state lines, such as airplanes
and trains. This power also reaches threats to people and goods travelling
in interstate commerce, such [as] . . . the setting of rates that could affect
interstate trade.174 Moreover, Judge Alito wrote that the Machine Gun
Statute would not fall within this category even if Congress had banned
164. See Rybar, 103 F.3d at 291-94 (Alito, J., dissenting). Although Judge Alito agreed
with the majoritys focus on the substantial economic effects, he still addressed the other two
categories (channels and instrumentalities of commerce) since the majority rationalized the
overall constitutionality of the statute in part because other circuits have justified the statute
under those two categories. Id.
165. Id. at 288; see also supra note 45 and accompanying text (describing the three
categories).
166. Rybar, 103 F.3d at 288-89 (Alito, J., dissenting).
167. Id. at 289.
168. Id.
169. Id. (quoting United States v. Kirk, 70 F.3d 791, 769 (5th Cir. 1995)); see also United
States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th
Cir. 1996); Kirk, 70 F.3d 791; supra notes 151-54 and accompanying text.
170. Rybar, 103 F.3d at 289 (Alito, J., dissenting) (citing United States v. Kenney, 91
F.3d 884, 889 (7th Cir. 1996)).
171. Id.
172. Id.
173. Id.; see also supra note 45 and accompanying text.
174. Rybar, 103 F.3d at 290 (Alito, J., dissenting).
2290 FORDHAM LAW REVIEW [Vol. 75
the intrastate possession of machine guns in order to prevent them from
being used to damage vehicles travelling interstate, to carry out robberies of
goods moving in interstate commerce, or to threaten or harm interstate
travellers.175
Judge Alito found the reasoning of the Sixth and Tenth Circuits elusive
in terms of finding the statute to be constitutional under this instrumentality
category.176 Both circuits described the inherent interstate component of
machine gun travel.177 Confused by how machine gun travel inherently
encompasses interstate travel, Judge Alito summarily wrote that machine
guns that are simply possessed intrastate and are not travelling in interstate
commerce may not be regulated under the first Lopez category, and as
previously explained, unless they are menacing interstate commerce, they
do not fall within the second category either.178
What’s most troubling is that these programs are being run through consulates. If this was only being done at embassies, then one could argue that US authorities might have a better understanding of the loyalties of the foreign nationals involved. Scattered hither and yon, they can’t make that claim.
(snip)
>Given the importance of the access of trace information to those mayors and activists currently focused on a "torts" approach to knock down the Tiarht Amendment and deconstruct U.S. firearms ownership, the thought of them being helped by foreign governments who have espoused a long-term support for U.N. personal disarmament policies is distressing to say the least.<
The system is working hard to gather data on where firearms are located.
It’s not the Mexican drug trafficers we’ll have to be on guard against.
Terrorists, drug trafficers, whoever with the money to buy them will be given lists with addresses on where to find their desired weapons in America. Every single class III dealer and machine gun owner and their families throughout America are in extreme danger AS WE SPEAK.
BLOAT
The NFA registry is, legally, confidential tax information. They’d better not be “sharing” that info with anyone. FOIA request time?
Only those who actually believe in the tooth fairy, santa claus, and the easter bunny.
Be Ever Vigilant!
This reminds me of a deal that we used to have with the Brits: we spy in England on their citizens, and they do the same here. That way, neither of the governments would be violating any laws about domestic spying.
With the advent of the Patriot Act, I’m not so sure if this agreement is still in effect, or if it is even needed. But what the BATFE is doing is having foreign governments compile lists of gun owners. BATFE isn’t doing this itself, so it isn’t in violation of the law. Of course, a simple access code will give all of the information to the BATFE once Shrillary is elected and she names Schumer as AG.
Let the record show clearly that your statement is false and that I do not even support the existence of the BATFE.
OK... I’ll amend my statement. Most people want the BATFE doing its part to track down those who shouldn’t have access to firearms.
Better?
But getting back to the point, I doubt that anyone wants the BATFE to share sensitive data on Americans with foreign governments. If you don’t want the US government having information about your firearms, do you want Columbian law enforcement to have that info? (Wishing the BATFE would go *POOF* and vanish doesn’t answer that question, BTW.)
Virtually all of the mischief, to use a benign term, of the anti-gunners, which includes the BATFE, is aimed at disarming law-abiding Americans.
If I was in Mexico, for example, and wanted a machinegun, the last thing I would attempt would be to steal one from a well-armed American who is guarding it as if it cost one hundred times its actual value; because it DID cost the American that much.
Instead, I would arrange with either China or one of the nations of South America to send me an entire cargo container full of AK-47s at a cost of probably $50 each.
The only reason that I can imagine for the BATFE to send records of American gunowners outside the country is to ensure that those records remain available to the BATFE despite future laws against having such records.
But it does answer the only really relevant question. If not for the desire to disarm law-abiding Americans, the BATFE would not exist. Any evil which results from the existence of such an organization is quite predictable.
Your attitude seems to be that the superficial goal of disarming criminal Americans has a value which could justify its existence. I believe that your premise is wrong. Do you really believe that the BATFE has ever benefitted you by disarming a criminal?
The BATFE exists. It will exist for the foreseeable future. Wishing upon a star doesn’t solve any problems.
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