By Alan Korwin, GunLaws.com
In the wake of the Muslim jihad assault on military recruitment stations in Chattanooga, Tenn., Congress has rushed five bills into the hopper, just like anti-gun-rights advocates do after a psychotropic drug-crazed madman shoots up a public space. The same problems afflict both groups’ actions — poorly drafted bills, unintended consequences, wrong way to fix things and the chances of passage are remote.
The people offering the bills however get to tell their supporters (deceptively) “Look at the good work we’re doing!” A lot of people buy into the nonsense. See if you like the plan, after learning what’s really in these bills.
PLAIN ENGLISH ANALYSIS
Federal Gun Bill No. HR 3115
“Enhancing Safety at Military Establishments Act”
NOTE: The term “soldiers” is here as shorthand for all our military personnel, and “Army” is short for all armed services, no slight intended to the dozen or more separate names. I’ve gone through the bills in order, line by line. Read the actual bills here by entering the bill numbers, easy: https://www.congress.gov. Sign on for similar reports here: http://www.gunlaws.com.
HR 3115: The stated purpose is to repeal the laws and regs that disarm soldiers on bases and recruitment centers, and to prohibit reimposing such bans.
PROBLEM: It’s possible Congress shouldn’t be introducing a year’s worth of paperwork to get this done. Considering the volatile state of affairs, the commander in chief should do it with a phone call and a pen immediately. Why are these rules in place in the first place? That’s what needs to be addressed at the core.
HR 3115: Congress introduces the term “trained military personnel” as “all members of the Armed Forces who are trained by the Armed Forces in the use of firearms and are authorized to use them.”
THE PROBLEM: No one knows what “trained by the Armed Forces” means in this context. That means they will have to come up with a plan (“military regulations”). And get it approved. Until then, no one can be declared “trained.” We saw what that took for the FAA in the arm-the-pilots program.* This requirement is the same can of worms. No one will be armed for a long time when this passes. If this passes.
(*The first graduating class of 44 pilots after the Sep. 2001 attack, out of 90,000 commercial pilots, got out in April 2003. Estimates were that one third of them could then be trained — within 5 years. Pilots developed trigger-finger blisters from the rigorous training required. Gun must be locked up any time pilot is not seated, even if going to the airplane bathroom. Second class was scheduled for July, at one site only, amidst staunch opposition. I did a report on it http://www.gunlaws.com/newstuff.htm)
HR 3115: Congress declares: “Military personnel are trained in firearms use and are prepared to protect and defend the United States at all times.”
THE PROBLEM: This would be nice of course but it’s wishful thinking, there’s new recruits, non-combat roles, no “authorized” training in place and will remain so for the foreseeable future. I don’t see why this statement is in there. It conflicts with the training graf below.
HR 3115: Thirty days after this is enacted, the Secretary of Defense “shall issue a new directive authorizing trained military personnel to carry military-issued firearms on military bases and Armed Forces recruitment facilities.” (emphasis mine)
THE PROBLEM: It’s bass ackwards. For this to happen, the training requirement will have to have been written already, approved, and soldiers will have to have been qualified through it, before the Secretary’s time period is up. The time frame seems impossible. But the big problem is the draft lacks comitatus-style language.
It says “the Secretary shall issue” a directive, upon which everything depends. So what happens if the Secretary fails to issue that, or is way late? Nothing. It’s the same problem as with most laws governing government — no built in penalties, like there are for the public. The law places requirements, but doesn’t require punishment. This needs to be worded like the posse comitatus law, thus: “In the event the Secretary of Defense fails to issue the directive within 30 days…” and then you list the punishments.
Then the law would have teeth, you get results, people are held accountable, they must perform, and the soldiers all get armed. All new laws need the comitatus feature or they are meaningless and government continues to run without control. (If you’d like to cling to secret hope here, imagine the top brass, in their wisdom, is gearing up for this behind the scenes on the down low, writing the regs before they’re supposed to, and ready to roll everything out on day one to waste no time before battle readiness.)
Note also that our soldiers can only be armed on bases and recruitment facilities. They will face the same problem we have in the civilian sector, of getting to and from assignments, and stepping out for lunch or a smoke. This is what happens when you draft bills quickly in response to murderers, instead of calmly in response to need. It’s the same mistake anti-gun-rights advocates make, when they dance in the blood of victims, seeking action in attempts to saddle us with their fears.
HR 3115: Army Regulation 190–14, and Department of Defense Directive Number 5210.56, and associated material, are repealed.
THE PROBLEM: No problem. Here is simple and elegant treatment for both regs, no hedging, just two words: “is repealed.” These are the lengthy and odious bans on arming our soldiers. Good riddance. I read them. They were atrocious, an affront, emasculating our defenders for political correctness—or was there more than that? A parallel repeal appears in the companion Senate bill (S 1823), helping ensure — but not guaranteeing — that these bills will pass.
It turns out there was a bit more than political correctness. The military is a motley lot, and commanders are in a position to know who in their ranks can best be trusted with arms and who needs, hmmm, greater supervision, to put it nicely. Exercise of the Second Amendment under uniform is not the freedom exercised in the civil sector, guns are controlled scrupulously in the military. A person signs away freedoms when enlisting — it’s a contract with obligations. Some cooped-up 18-year-old drunk-fighting recruits on weekends during training need more supervision than others. Not everyone gets an M16 the day they enter.
HR 3115: The closing paragraph, in repetitive language for extra strength, exempts “trained military personnel” (that undefined special group of people) from any “law, rule, regulation, or Executive order” that bans them from carrying officially issued firearms on bases or recruitment facilities.
THE PROBLEM: It’s not clear the Congress has power over the commander in chief to arm or disarm the armed forces, but this is what they are attempting, because past commanders have left them defenseless, and the current one won’t arm them in the face of warlike assaults. The bill also lacks comitatus force, where it says, for example, “trained military personnel shall not be prohibited from carrying officially issued firearms on military bases or Armed Forces recruitment facilities.”
So what if a mall owner, or anyone else, says no guns allowed? To be meaningful the bill should say, “Anyone who prohibits or attempts to prohibit trained military personnel from carrying officially issued firearms on military bases or Armed Forces recruitment facilities shall be fined and go to prison.” All new laws should get comitatus features, and old laws should be retrofitted.
So now — how do you feel about Congress’ chest thumping grandiosity and attempt (if you can call it that) to arm our soldiers, without confronting the commander in chief, who is refusing to do so? Will it work? Right thing to do? Coming to a recruiting station near you soon?
Congress is on break until they come back Sept. 8… for four days.
Federal Gun Bill No. HR 3138
“Military Recruiter Right to Carry Act of 2015”
HR 3138: The bill has a single sponsor, Jody B. Hice of Georgia.
THE PROBLEM: That indicates it is not a serious proposal. There is no matching bill in the House, indicating it is going nowhere. It is just for show. Who is this supposed to fool? Half of America would sign on, but Congress? Missing in action. These are called “your representatives.” Ask them about it sometime — like before elections — but who else is there to vote for, right? As the power brokers said: “Give ‘em the vote and tell ‘em they’re free.”
HR 3138: The stated purpose of the bill is to recognize the right of members of the Armed Forces assigned to duty at Armed Forces recruitment offices to carry a personal or service-issue firearm at the office.
THE PROBLEM: There isn’t a problem, in general principle. Soldiers have to take orders, and are subject to the will of their commanders as long as the commanders act lawfully. And arms on military facilities are subject to control. But everyone was restricted from bearing arms under complex regulations at the heart of all this. What this bill does, and it’s a nice new wrinkle, it adds a soldier’s personal firearms to what may be carried at a recruitment office. If it ever becomes law.
HR 3138: Despite any military policy or law to the contrary, soldiers assigned duty at recruitment offices have the right to carry personal or service-issue firearms at the office.
THE PROBLEM: No problem. Just that it is apparently not destined to become law, just bragging rights for some legislator(s). We’ll wait and see.
Federal Gun Bill No. HR 3139
“Securing Military Personnel Response Firearm Initiative Act” or “SEMPER FI Act”
HR 3139: The purpose of this bill is “improved security measures for protection of Armed Forces recruitment centers against terrorist attack.”
THE PROBLEM: It’s nice to see a specific focus on so-called “terrorist attack,” and recognition of a specific threat, but preparations should be as broad as possible. We also know “terrorist” is a term adopted by the media, used incessantly and which has worked its way into our psyche to avoid and disguise the truth. We are fighting a muslim jihad, currently underway, not some undefined “terrorism.” This isn’t the Irish Republican Army, or FARC, or Sandinistas, or something else terrorizing. It’s the jihad.
HR 3139: “The Secretary concerned [meaning each branch of the Armed Forces] shall authorize an eligible member [see below] of the Armed Forces assigned to duty at an Armed Forces recruitment center to carry a service-issue sidearm as a personal- or force-protection measure while on duty at the recruiting center”
THE PROBLEM: Our guys cannot carry anything but handguns, while the enemy can carry whatever it wants. Our side is deliberately subarmed. They will have to wait for police for fully armed backup. This only applies on duty, and on site, making anything else a gun-free zone, like commuting, with penalties not yet spelled out. We can only guess how long the regs behind this will take. The term “a personal- or force-protection measure” is not defined, and acting outside that, whatever it may turn out to be, will be some sort of offense. More on being subarmed here.
HR 3139: The bill covers some other ground, authorities can improve “structural security measures” (instead of arming soldiers! or in addition to) soldiers are banned from enforcing civilian law (the actual posse comitatus law — with fines and prison for anyone who does that, 18 USC §1385), and an eligible member (singular!) is an officer or noncommissioned officer only.
There is a potential backfire built in, since soldiers are (properly) banned from “authority to conduct civilian law enforcement functions” (the statutory posse comitatus restriction). If our guys were to shoot a muslim jihadi murderer during a jihad attack however, in what was later labeled a workplace-violence incident, that would become enforcement of civilian law. Would our commander in chief stick up for them, or continue to pretend it wasn’t an islamist assault, and leave them twisting in the wind, subject to criminal prosecution? You could build in intricate liability protection, an honorable commander is preferable.
The Senate Is In On It
S1819 is the Senate version of HR3139, described above. This allows both Houses to move the paperwork along. S1823 is a separate standalone bill (no House companion bill) that lists jihadi attacks on U.S. bases here and notes that our soldiers were unarmed; it introduces a phrase I don’t think I’ve ever seen in a federal bill — gun-free zone:
“SEC. 1.(a) Findings.—Congress makes the following findings:
(4) Gun-free zones on military installations and Department of Defense sites such as military recruitment centers are vulnerable targets.”
The bill goes on (772 words) in an attempt to correct arms policy for the military, and wrest control from the president. The 1993 gun ban for the military is repealed, same as on the House side. While armed, “carrying firearms shall adhere to CJCSI 3121.01B, Standing Rules of Engagement and Standing Rules for the Use of Force for the U.S. Forces,” from 2005. Commanders can case-by-case disarm individuals they feel are unfit, for cause.
Congress goes on to tell all Secretaries of defense departments that they cannot enact any bans on arming soldiers, or reinstate the repealed bans, which got us into this mess. That may be within Congress’ power. It’s not clear that this is, though their motivation is obvious: “The President shall not take any executive action or promulgate any rule or issue any Executive order or regulation to prohibit military personnel from carrying firearms.”
Congress is at odds with the commander in chief, at least with the current one.
Congress tells the Sec’y. of Defense to report on progress in 90 days. If there’s no report, or when the report says nothing’s happening, nothing happens. No heads roll, no one “in charge” suffers any pain, no penalty is provided for failure to comply, there’s no comitatus language. It could say: “The Secy. of Defense will file a report, within 90 days, detailing how many recruiting stations have been armed, or be relieved of command.” Isn’t that so much more motivational sounding?
Of course, the Secretary will resist such wording.
A resistant Secretary could of course be removed sooner.
Either way, it’s at least 90 days before our soldiers are armed.
Strike that. It’s 90 days before we get a report on how it’s going.
Alan Korwin is the author of 14 books, 10 of them on gun law, and has been invited twice to observe oral argument in gun cases at the U.S. Supreme Court. Reach him at http:/www.gunlaws.com, where he is the publisher of Bloomfield Press.