Thursday, May 2, 2013

S 792 Introduced – Explosives

As I mentioned last week, Sen. Lautenberg (D,NJ) introduced S 792, the Explosive Materials Background Check Act. The bill would amend 18 USC Chapter 40  dealing with the importation, manufacture, distribution and storage of explosive materials by changing some definitions and adding two new classes of people that to whom it would be illegal to provide explosives. There is nothing here that would specifically affect background check requirements for explosives.


Section 2(a)(1) of the bill would modify two of the existing definitions found in 18 USC §841. First it would expand the definition of ‘explosives’ under §841(d) to specifically include “smokeless powder and black powder substitutes”. Second it would expand the definition of manufacturer under §841(h) to include “any person engaged in manufacturing explosive materials for purposes of sale or distribution or for his own use” by removing the current requirement of ‘being in the business of’.

The expansion of the definition of explosives is modified in a couple of other places in the bill by removing smokeless powder and black powder substitutes from the definition of various unlawful acts. It will take an army of lawyers and extensive case law to determine exactly what effects this will have.

It looks like the removal of the ‘being in the business of’ change to the manufacturers definition was made to provide some teeth to the phrase ‘or for his own use’. Someone who was making explosives solely for their own use could argue that since there was no profit motive for their manufacture of explosives they were not ‘in the business of’ manufacturing explosives so were not covered under 18 USC Chapter 40. That argument would certainly be nullified under this proposed change.

Unlawful Acts

Section 2(a)(2) would modify provisions of 18 USC 842(d) by adding additional classes of people to whom it would be illegal to sell or provide explosive. Those classes would include persons:

• Subject to a court restraining order for suspected domestic abuse {§842(d)(10)};
• Convicted of a misdemeanor domestic abuse violation {§842(d)(11)}; and
• Denied an explosive permit or license under §843(d)(1)(B) or §843(j) (note both of these would also added to §843 by this bill)

While arguments for and against each of these classes can certainly be made, the Attorney General will have a hard time prosecuting violations of these provisions because of the burden of proof requirements that the seller would have or should have known about the individuals status under these restrictions.

Permits and Licenses

Section 2(a)(3) would modify provisions of 18 USC 843 by adding provisions for revoking or denying the issuance of federal explosives licenses or permits. As noted above, the bill would add two new paragraphs to the section; §843(d)(1)(B) and §843(j). The first would provide authority to revoke a license or permit to, and the second the discretionary authority to deny a license or permit to anyone that is “is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation of, in aid of, or related to terrorism, or providing material support or resources for terrorism”.

Presumably this is where the ‘background check’ portion of the title comes from, but there is nothing that specifies how the Attorney General would determine that someone would fit the requirements under these two paragraphs. Actually, §2(b) of the bill would require the Attorney General to establish guidelines for that determination. Those guidelines would include a requirement to “ensure that terrorist watch list records are used in a manner that safeguards privacy and civil liberties protections” §2(b)(2)(B).

Moving Forward

The general requirements of the bill would probably allow it to be favorably considered on the floor of the Senate and House with one exception. The lack of specific redress provisions for the terrorist watch list requirements will draw the ire of many civil liberty advocates. If any committee action were to address that issue the bill would stand a better chance of passage.

Standing alone it will probably not make it to the floor of the Senate, it is not high enough profile. It certainly could be added to the Justice Department authorization bill where it would hardly create a ripple.

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