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.
Definitions
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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