▶ 0:15:30Chair Rand: Chair rand: the committee will now come to order. As we reflect on the 250th anniversary of our nation, some of our most cherished rights stand at the crossroads between modern prosperity and technology that provide us with the means to enjoy and exercise our god-given rights to a greater extent than ever before, the means and interest of americans in exercising those rights that have increased and so have the desire in tools for tyrants inside of and outside of government to tighten control
▶ 0:16:01Chair Rand: Over who, where, and how the rights are exercised. At great length we have discussed a grave attempts by our government to censor unfavored, unpopular, or inconvenient speech. We have examined the threats to privacy and collection of data on all aspects of our lives by a myriad of government agencies in today we examine the growing threats by our government to restrict the right to keep and bear arms guaranteed by the second amendment.
▶ 0:16:32Chair Rand: In the wake of a federal officer shooting and killing a protester legally carrying a holstered firearm, a succession of federal officials rushed to declare that citizens cannot exercise their first and second amendment rights at the second -- same time. Administration officials stated that you cannot bring a firearm loaded with multiple magazines to any sort of protest that you want. It's that simple.
▶ 0:16:59Chair Rand: Another administration official said that if you approach law enforcement with a gun, there is a high likelihood they will be legally justified in shooting you. Don't do it. These statements were alarming and are a part of the reason we are here today. Government employees take an oath to support and defend the entire constitution of the united states, not just the parts that are convenient depending on the political news of the day. It isn't their job to decide when and if you're rights count on any given day.
▶ 0:17:31Chair Rand: Just as our constitutional rights are nonpartisan and belong to all americans across the political spectrum, these freedoms are not negotiable and are not independent of each other, they are undeniably bolstered by one another, insuring not only that americans have rights, but that they can defend and speak about those rights without fear of government overreach.
▶ 0:17:53Chair Rand: Unlike free speak -- free speech, free exercise and privacy, the right to keep and bear arms has been strengthened recently by the courts and restrictions on those rights are being overturned. In 2008 the supreme court upheld the heller case, the individual right to possess firearms in the home. Two years later they ruled in the mcdonald case that the right to bear arms is applicable to laws enacted at state and local levels.
▶ 0:18:19Chair Rand: In 2022 the court again ruled on the side of liberty and the bruin case, stating that the second amendment protects an individual right to carry handguns for self-defense outside the home. Even though the supreme court has made his rulings, politicians have not given up their attempts to usurp our constitutional right to keep and bear arms continues. In recent months in virginia we have seen, the state were we won the independence.
▶ 0:18:48Chair Rand: With misguided legislation intending to disarm lawful gun owners. Just days ago bills sent to the governor from the state legislature aimed to prohibit the carrying of a loaded firearm in public across the commonwealth. Another bill poised to become law makes it a class one misdemeanor for any person who imports, sells, manufactures, purchases, or transfers an assault firearm all while creating an exemption for a government officer.
▶ 0:19:19Chair Rand: As we saw during the pandemic, the government mantra continues to be rules for you and not for me. In the case of virginia, this is not unique. Rhode island, california, passing legislation with most of the laws undoubtedly challenge to the courts. This should be a wake-up call for every state across the nation.
▶ 0:19:44Chair Rand: It is important to look at these and other specific instances of infringements on the right to keep and bear arms. We must be watchful to any and all violations, acting accordingly. What we should really do is aspire in this 250th year of our nation to a government that stops asking how much restriction on our liberties they can get away with and instead asks how it can protect and promote all of our rights, including our right to keep and bear arms.
▶ 0:20:16Chair Rand: The ranking member is recognized for his opening statement.
▶ 0:20:19Mr. Cuccinelli: Thank you, Mr. chairman. I appreciate you convening this committee for discussion here today. Given the president's unconstitutional and unauthorized decision to go to war with iran, his abuse of power to english himself and punish his political enemies, and his decision to usurp congressional powers, including the appropriations funds, I am troubled by the topic we have chosen.
▶ 0:20:49Mr. Cuccinelli: While I agree that the constitution gives americans the right to bear arms, the second amendment is one of many such liberties that are guaranteed by the U.S. constitution. While there are maybe some discrete examples where the right has been tested, the second amendment is simply not under the same threat as so many of our other constitutional rights today.
▶ 0:21:13Mr. Cuccinelli: The trump administration possible violations of americans first, fourth, fifth amendment rights, and the administrative flouting of the congressional constitutional authorities are basically creating a crisis for the rule of law and our country. Meanwhile, republicans in control of congress have become cheerleaders of the executive while they allow the constitutional powers that congress has to be undermined.
▶ 0:21:41Mr. Cuccinelli: That is something that we should be examining on a larger scale and I hope that you would consider that, Mr. chairman. Today I want to expand the discussion to address these other issues and what congress must do to reclaim not only our own authorities as the coequal bench of government, but how we can restore the checks and balances our constitution created to ensure that no single branch of government can infringe on the constitutional rights and protections at the core of our democracy.
▶ 0:22:13Mr. Cuccinelli: The trump administration has pushed the bounds of executive authority further than any other president. Our republican-led congress has failed to push back. Instead, seating constitutional delegated responsibilities almost entirely to the president. Those in control have laid down and allowed loyalty to party to overwrite duty and even self-interest when preserving a meaningful check on the president.
▶ 0:22:39Mr. Cuccinelli: Now, there is no question that passed administrations of both parties have tested these boundaries of their authorities. Congress, led by both parties, has basically been responsible for delegating away these authorities over many years.
▶ 0:22:55Mr. Cuccinelli: Today we have an administration that refuses to follow the laws passed by congress, abused emergency powers for political purposes, impose chaotic tariffs that raise prices on everyday goods for american families, bypassing congress to wage unjustified military interventions, and are now trying to completely circumvent the power of congress over the purse by refusing to pass bipartisan appropriation laws to fund key functions of government.
▶ 0:23:25Mr. Cuccinelli: In return, we have a republican enjoying that is almost entirely capitulated to the whims of the president. On top of that, this administration has repeatedly violated the first amendment rights of americans by retaliating against and even going so far as to arrest individuals who exercise their rights to free speech, assembly, religion, petitioning the government and the press.
▶ 0:23:51Mr. Cuccinelli: This administration has violated the fourth amendment rights of americans by allowing immigration enforcement officers to enter and search the homes of people without a judicial warrant. It has violated the right of americans to do process under the fifth amendment, detaining and removing individuals to countries they have no connection to and without an opportunity to petition for redress from government and the courts. Last year I released a report detailing these constitutional violations and the overreach from the executive branch.
▶ 0:24:21Mr. Cuccinelli: In the report I laid out how the checks and balances designed in our constitution are absolutely vital to protecting the freedoms of americans. I warned how the president's unprecedented actions to usurp congressional article one powers, disregard the limitations of the executive in article two, and defy the judiciary article three lawful court orders have undermined our democratic principles and left us with a president who is now completely unaccountable.
▶ 0:24:51Mr. Cuccinelli: The constitution provides congress with the means necessary to check an administration that is eroding the very principles and institutions that have always made this country great. But that is only possible if congress, especially the party in power, the republican majority, stands up and takes action.
▶ 0:25:12Mr. Cuccinelli: I know that my colleagues on the other side of the aisle are eager to discuss their views on perceived attacks on the second amendment, but I encourage you all to join in on this discussion on protecting our laws and most fundamental rights before it's too late. Thank you, Mr. scher.
▶ 0:25:37Chair Rand: Our first witness will be representative thomas massie, who represents the fourth congressional district in kentucky and serves as the chairman of the house second amendment caucus incidents on the judiciary subcommittee on constitution and limited government. Congressman massey, you are recognized for your opening statement.
▶ 0:25:58Rep. Massie: Thank you for allowing me to speak to the upper chamber here today. I'm very passionate about this issue of the right to keep and bear arms. I got my first firearm when I was 12 years old from my father and with that I learned about responsibility and the price that comes with owning a firearm .
▶ 0:26:18Rep. Massie: I formed the second amendment caucus about a decade ago and have been using that venue to bring in people like alan dara, the lawyer responsible for arguing the heller case, as well as the mcdonald case, and we won both of those cases in the supreme court. We had to keller in the caucus and have had some of those brave men who have stopped mass public shootings. It's been a great venue for teaching myself and others more about the second amendment.
▶ 0:26:48Rep. Massie: In keeping with the committee request, I have prepared a speech, but I will only deliver a part of it and with your indulgence I would like to talk about legislation that I think is important that is sitting in the house. The simple and direct language of our constitution is clear. The right of the people to keep and bear arms shall not be infringed.
▶ 0:27:09Rep. Massie: There are no qualifiers on who may keep arms, the types of arms they may keep, or for what purposes, and it certainly doesn't say that it's about trivial matters like deer hunting or skeet shooting. The second amendment exists for a clear reason, defense. The defense of the home, the family, and the community. For the defense of liberty and safety. Not only from a lone assailant, but from the whole of tyrannical government. That is why we have the second amendment.
▶ 0:27:39Rep. Massie: Our founders understood that the greatest risks to liberty are not always found outside the borders of a nation, even though we sometimes go looking for those fights abroad. Often times, from within, when a corrupt and dangerous if you become too ambitious and attempt to subjugate the masses. When the tierney arises, snakes prefer the snap -- the path of least resistance, a population that is vulnerable.
▶ 0:28:08Rep. Massie: As george mason reminded us in 1780 eight, disarming the people is the most effective way to enslave them. History is riddled with oppressive states that strip their own people to keep riches for the assaulting cobol and in every instance before the snakes bit, they first took away the guns. Whether it was hepler, castro, or chavez, gun confiscations came first. Then the infringement of all of the other liberties. And in many cases, millions were killed by their own governments.
▶ 0:28:39Rep. Massie: It's not by the grace that america has averted similar atrocities. It is because of our constitutional design. As madison wrote in 46, the advantage of being armed with the americans possesses over the people of almost every other nation. It forms a barrier against the enterprises of ambition, a barrier against tyranny and oppression by a ruling class.
▶ 0:29:06Rep. Massie: To this point, it is incumbent upon us to advance legislation that will protect to the second amendment here, we have sworn an oath to the constitution to protect it from enemies from within and abroad. Four pieces of legislation I have sponsored in the house that I want to talk about today, one of them is to return -- repeal the gun free school zone act. 94% of mass public shootings have been in gun free zones.
▶ 0:29:35Rep. Massie: We should be advertising it as the default that our children are sitting ducks that are unprotected. In the states and school zones where they have allowed the carrying of firearms, there have been no such catastrophes. The other bill that's easy to explain is the bill to allow 18 to 22 -- 21-year-olds to purchase handguns from a federally licensed dealer.
▶ 0:29:59Rep. Massie: I think it's somewhat ridiculous that you can be conscripted to serve your country in a war, you can be 18, 19, or 20 and forced into service to fight for your country, but you cannot defend your own family with a handgun that you bought at a licensed dealer. So, we should repeal this federal restriction. A piece of legislation is coming up in the house next month that I think is very important. It's to report some of the data that we collect in the database.
▶ 0:30:29Rep. Massie: When you go to purchase a gun you fill out form 4470 three, it's golden, and they collected data they never report. What we have discovered through my friend, john locke, an economist, statistician, and author, is that there is inherent racism in the background check system. Because it is sloppy and they only check phonetically similar names, when you go to purchase a gun, you can be deprived of purchasing the gun.
▶ 0:30:57Rep. Massie: The appeals process can get messy to prove you are not the same person they think is the person who is prohibited. Turns out that if you are a black or hispanic american, you are far more likely to share a phonetic name with someone who is a prohibited person who has been convicted of a crime that has a punishment of one year or more.
▶ 0:31:19Rep. Massie: In fact you are probably twice as likely to be falsely denied the purchase of a handgun if you are hispanic and three times as likely if you are black to be denied the purchase of a gun at a dealership. So, this bill coming up in the house, and by the way it passed unanimously in the judiciary committee, democrats and republicans both voted for it, it simply requires the doj to publish the data.
▶ 0:31:47Rep. Massie: Not of the individuals, but in the aggregate of the denials by sex, race, or ethnicity. Finally, the bill I most excited about is the national constitutional carry act. Senator lee has that in the senate now and some of you are sponsors of that. I thank you. Several years ago, legislation was advanced to force reciprocity among the states who could carry permits.
▶ 0:32:13Rep. Massie: It made sense at the time, because in most of the states you needed a permit to carry a firearm. 29 states now recognize that the right to keep and bear arms should not require permission from your government to bear the arms. So, they have permit less carry. I've advanced a national constitutional carry act that would extend that to all 50 states in the territories. You may ask -- does that violate the 10th amendment?
▶ 0:32:42Rep. Massie: Are you infringing on state rights? Thanks to the mcdonald case of 2010, which came two years after the heller case, which was decided in bc and did not impinge on the states, the mcdonald case versus chicago inc. The second amendment to the states. So, the states are constrained by the second amendment.
▶ 0:33:05Rep. Massie: Does not violate the 10th amendment to tell the states that you must follow the right to keep and bear arms in the second amendment. So, I would love to see some action on that here in the senate. With that, I will return to my prepared remarks. When we look to the constitution, remember that it is a document by the people for the purpose of constraining our government, not the other way around.
▶ 0:33:32Rep. Massie: The second amendment is the ultimate check on our government. An attack on those core tenants, second amendment, first amendment, or fourth amendment, or any other provision of the constitution, is dangerous and wrong. One does not need to look too far back in history to find examples of why. I will close with these words from patrick henry. "guard with jealous attention the public liberty. Suspect everyone who approaches the jewel.
▶ 0:34:01Rep. Massie: The great object is that every man be armed. Thank you so much for allowing me to testify today.
▶ 0:34:07Chair Rand: Thank you for your statement, appreciate your time, thank you for coming to be with us. The next panel will come forward to take her places.
▶ 0:34:41Chair Rand: It is the practice of this committee to swear in witnesses. Build each of you please stand and raise your right hand? Do you swear the testimony that you will give before the committee will be the whole truth, the whole truth and nothing but the truth, so help you god?
▶ 0:35:05Chair Rand: Our first witness will be ken cuccinelli, currently senior fellow of immigration for the center of renewing america who previously served as the virginia attorney general from 2010 to 2014. Welcome to the committee.
▶ 0:35:23Mr. Cuccinelli: Members of the committee, thank you for the opportunity to testify today on the evolving landscape of second amendment rights. I will focus on recent developments in the commonwealth of virginia that provide a timely and instructive case study of how rapidly state-level policy can reshape the practical exercise of a constitutional right.
▶ 0:35:47Mr. Cuccinelli: In 2026, the virginia general assembly passed a sweeping package of firearm related legislation, taken together representing the biggest shift in firearm policy in the modern history of virginia, illustrating not only the breath of regulatory approaches being pursued nationwide, but also the constitutional tensions likely to define second amendment and state-level equivalents and jurisprudence in the coming years.
▶ 0:36:13Mr. Cuccinelli: Notably virginia lawmakers approved legislation that would prohibit the sale, manufacture, and transfer of many commonly owned semi automatic firearms, along with magazines capable of holding more than 15 rounds.
▶ 0:36:30Mr. Cuccinelli: While generally allowing current owners to retain previously acquired firearms, it would effectively halt the future legal acquisition of entire categories of arms widely possessed for lawful purposes, making it impossible for current owners to transfer their firearms. With exceptions for government officials that I will touch on later. This type of perspective band raises serious constitutional questions under federal and virginia constitutions.
▶ 0:37:00Mr. Cuccinelli: In its individual rights jurisprudence, the supreme court has emphasized that the second amendment protects arms in common use for lawful purposes like self-defense. Policies that prohibit future acquisition while allowing continued possession creates a legal paradox, implicitly acknowledging the widespread lawful ownership of these firearms while simultaneously restricting future citizens from exercising the same right.
▶ 0:37:28Mr. Cuccinelli: In addition to the specific bands, virginia is proposing restrictions on where the firearms may be carried beyond historically recognize second -- sensitive places to eventually encompass large portions of public life. This raises important questions under supreme court's framework requiring firearm regulations to be consistent.
▶ 0:37:56Mr. Cuccinelli: Virginia lawmakers have also searched for policies improving -- proving legal duties for firearm owners, preventing access by others. While that goal is widely shared, the mandates must be evaluated to make sure they do not endure the core right of self-defense in the home.
▶ 0:38:22Mr. Cuccinelli: Long recognized as a central component of the amendment as noted in the heller decision. Further, the commonwealth's expanding use of red flag laws that allow for temporary low firearms from visuals deemed to pose a risk.
▶ 0:38:39Mr. Cuccinelli: Courts have generally upheld a set, but extensions to these laws, particularly those affecting evidentiary standards, duration, or who may initiate proceedings raises due process concerns that require careful scrutiny. I fully expect to see the 2026 expansions of these laws weaponized to punish gun owners for political purposes completely unrelated to gun safety.
▶ 0:39:08Mr. Cuccinelli: Finally, the commonwealth has moved towards allowing civil liability actions against firearm manufacturers and distributors, an approach that seeks to navigate around existing federal protections in an effort to destroy this industry through litigation.
▶ 0:39:25Mr. Cuccinelli: Taken together, these measures demonstrate a broader trend to transform this policy from a framework to focus primarily on prohibited persons and background checks into ones that increasingly locates methods of storage in the broader ecosystem of lawful commerce.
▶ 0:39:46Mr. Cuccinelli: All in an effort to cut into the right of law-abiding gun owners and potential gun owners and potential donors and in many respects to attempt to turn such citizens into lawbreakers of bureaucratic restrictions in order to take their guns away or deter them from buying guns in the first place. In addition to obvious litigation, this also creates a growing divergence among states leading to a patchwork of laws that may complicate compliance for ordinary citizens.
▶ 0:40:16Mr. Cuccinelli: I would respectfully suggest that that is part of the point. It is one way of attacking second amendment rights, as I noted, as a practical matter. One ball carried over into next year in the virginia general assembly is a double-digit tax rate on gun and ammunition purchases. As we know from the beginning of the republic, the power to tax is the power to destroy. That is what it is intended to be used as.
▶ 0:40:47Mr. Cuccinelli: I expect to see that next year in my beloved commonwealth. With that, I appreciate your time, your consideration, and I look forward to answering your questions.
▶ 0:40:58Chair Rand: Thank you next up we have erich pratt, senior vice president of the gun owners of america, where he has been employed since 1990.
▶ 0:41:10Mr. Pratt: Chairman paul, ranking member, members of the committee, I'm the senior vice president of gun owners of america, representing over 2 million americans who believe the second amendment is the amendment that protects all the others. I hope she had the opportunity to discuss these threats to our second amendment rights. I want to begin with the gun owner registry the atf is compiling.
▶ 0:41:39Mr. Pratt: In 2021 it was exposed that the biden administration had accumulated 54 million gun owner records in a single year. Representative cloud and 51 colleagues demanded answers from the atf and what they received was shocking. The atf admitted to amassing nearly one billion records of american gun owners, with 94% already in digital format.
▶ 0:42:06Mr. Pratt: This is gun owner registration, pure and simple. It is a violation of federal law and the reason that the senate should pass senator risch's bill. It would destroy this illegal searchable gun registry, hopefully by dropping the atf computers containing the database into the deepest part of the ocean. Basically, atf needs to have their own boating accident.
▶ 0:42:35Mr. Pratt: Look, a database like this invites abuse. We've already seen it happen. The biden atf tried to ban 40 million pistols with stabilizing braces, firearms that have been legal during the obama administration. By a stroke of the pen, the biden atf turned millions of americans into felons overnight. Thankfully, we took this to court and got protection for our members.
▶ 0:43:01Mr. Pratt: Had this rule remained in place, the atf would have known where every single one of those firearms were because of the 4473 forms on file. Look, this is not a registry in name only. That's a confiscation list waiting to be used. History tells us where this leads. The governments of australia and venezuela have carried out large-scale gun confiscations in recent years.
▶ 0:43:30Mr. Pratt: Canada is now threatening to use the registry to do door to door confiscations. This isn't just an other world problem. It has already happened here. In the 1960's new york cities began registering long guns with promises that they would never confiscate them, but by 19 91 many of those guns were banned and 92 the paper reported the police raided the home of a staten island man who refused to comply, they seized his firearms
▶ 0:44:03Mr. Pratt: And noted that spot checks were planned for other homes. That's the problem with maintaining records of gun owner names. We are always just one step away from gun confiscation. Turning to other important issues, let me say that the trump administration has achieved many pro-gun victories in several apartments outside the doj. I champion those in my written testimony and talk about them.
▶ 0:44:34Mr. Pratt: Sadly, the department of justice has continued to fight us in court at almost every turn, including on the biden pistol brace man, his engaged in business rule, and the frame and receiver rule that registers every gun sold after 2002. The fact that republicans, a republican doj is still defending biden era gun rules in whole or in part should tell us everything.
▶ 0:45:01Mr. Pratt: That is why congress must repeal every federal infringement and finish the job by defunding, dismantling, and abolishing the atf. After all, the second amendment isn't about hunting, it's not about sport, it's ultimately about preserving freedom.
▶ 0:45:21Mr. Pratt: Right now, our rights are under attack by databases, by bureaucrats, and by government attorneys who would too often rather defend unconstitutional laws then the constitution itself. By the way, a word to the wise for republicans on the committee and in the rest of the congress. These problems need to be fixed immediately if you hope to win the gun vote in the midterms.
▶ 0:45:48Mr. Pratt: Gun owners, as you know, are very politically active. Every time the doj attempts to move our cases or enforce a biden era policy, gun owners become less excited to vote. Thank you. I look forward to answering your questions. [laughter]
▶ 0:46:08Our Next -- Chair Rand: Thank you. Our next witness is dudley brown , where he has grown a small grassroots organization into the nation's second-largest grunt -- gun rights group. You are recognized for your testimony.
▶ 0:46:25Mr. Brown: Thank you, Mr. chairman. On the president of the national association for guns rights and it's been my privilege to represent gun owners for years now. A few months ago a man was shot and killed at a protest in minnesota. I'm not here to litigate the actions of alex pretti, whether the shooting was legally justified, or to endorse the politics of the protest he attended.
▶ 0:46:52Mr. Brown: I suspect he and I would have agreed on very little. My concern is what the current administration said afterwards. In those 33 years representing gun owners in state legislatures in the federal government, what is the main tool that I relied on to preserve firearms freedoms? That's easy, the first amendment. Today I find it prudent to speak on that intersection between the amendments. The reason it is simple is that we have never seen these rights as completely separate.
▶ 0:47:24Mr. Brown: The first amendment is how free people speak to power. Americans have shown since the founding that they will tolerate being governed, but not ruled. That is the arrangement that makes this country different from every other on earth and is precisely why an attack on the right to bear arms at a lawful public assembly is not a secondary problem.
▶ 0:47:51Mr. Brown: Before I go further, let me disavow the notion that this is a bipartisan -- that this is a partisan issue. Regardless of the drastic changes in party control in the white house and the two chambers, the one constant is that all must remain in power, to protect other people, regardless of their race, or their creed.
▶ 0:48:20Mr. Brown: The president of the united states said "you cannot have guns. You cannot walk in with guns." the fbi director remarked "you simply cannot bring a firearm to a protest. The former secretary of home security said "I don't know of any peaceful protest or that shows up with a gun and ammunition rather than assign." that last statement is the most revealing.
▶ 0:48:48Mr. Brown: Former secretary noem was not citing law, she was just kind of declaring a worldview that carrying a firearm is inherently incompatible with peaceful assembly. I think it is a worldview the founders would not recognize. Just before the second amendment was ratified, six out of 13 colonies did not merely permit citizens to carry firearms to public assemblies, they required it.
▶ 0:49:14Mr. Brown: The generation that wrote the right of the people to peaceably assemble looked at an armed citizen in a crowd and did not see a threat to peace. A solid guarantee of peace. The argument being made implicitly is that you may have a second right and a first amendment right, but not both at once. Choose one. Choose wrong? Don't be surprised if federal agents unceremoniously snatch one or both of those rights from you.
▶ 0:49:43Mr. Brown: Now, several states today forbid the carry of firearms at public demonstrations. Those laws deserve scrutiny not only on a constitutional but also a historical grounds with roots that traced directly to jim crow laws. A law conceived to control people does not become legitimate simply because time has passed and the target has changed. The states that enacted these laws were not concerned with public peace, but with public control.
▶ 0:50:13Mr. Brown: Each party has the same capacity for authoritarianism as the other side when it serves the short-term interests. I will ask the members of this room directly, is this the precedent we intend to set? That officials can decide after the fact that his citizen had no right to carry because the administration disliked his politics? That is not a legal conclusion, that's a rationalization.
▶ 0:50:40Mr. Brown: There is no textual, historical, or traditional basis for the proposition that americans must choose between the first and second amendment rights. You don't forfeit one by exercising the other. They are not in competition, they are the same right expressed twice. An armed people is an assembly that the government must take seriously. Disarm them at their pleasure. The second amendment does not exist in isolation, it exists to make sure the others remain in full.
▶ 0:51:10Mr. Brown: The founders understood that. Statements from this administration suggest they don't understand it. The members of this committee have the standing and authority to say so and I hope they will find the courage to use it. On behalf of the millions of members of my organization who take this matter very seriously, let me thank you for your time.
▶ 0:51:34Chair Rand: Senator peters will introduce the next guest.
▶ 0:51:41Senator Peters: Our next guest is professor dudley brown -- professor stephen vladeck at the georgetown university law center, a national expert on security law and military justice and a highly recognized appellate advocate, having argued before the supreme court, federal civilian courts, and military courts.
▶ 0:52:04Senator Peters: He is the recipient of numerous awards for his legal scholarship, including the 2024 university of texas research impact award and the selection by the order of coif to serve as its distinguishing professor for 2025. Professor, thank you for taking the time to be here today.
▶ 0:52:23Mr. Vladeck: Thank you for the invitation to testify today. Of all the conversations we can and should be having about the constitution, this committee is focused on the second amendment and strikes me as displaced singularly.
▶ 0:52:37Mr. Vladeck: Everyday we have headlines documenting other unconstitutional behaviors by this administration, from appropriations powers to claim the authority to enter private homes without judicial warrants to suppressing and showing the constitutionally protected speech of law firms, universities, and political critics, to blowing up suspected drug boats, invading venezuela, and going to war against iran without a scintilla of congressional almond -- authorization, leading one commentator to post "it's a good thing that congress isn't alive to see this." all of this
▶ 0:53:11Mr. Vladeck: Unconstitutional behavior comes not in the face of a hostile congress but without even any attempt to maintain that ascertained that authorization. You know they control both chambers, including the committee. Instead of making the case for loosening or repealing the mandates that the executive branch regularly violates or authorizes unilateral conduct in which the executive branch regularly engages, the administration effect -- effectively thumbs its nose at our elected representatives.
▶ 0:53:43Mr. Vladeck: That is, at you. In response this committee chose to hold this hearing. Seems to me, Mr. chairman, it would be more useful for this committee to discuss the structural problems highlighted by this administration's disdain for the constitution. Two sand. First, there is a large swath of unconstitutional behavior by the federal government that has proven to be effectively insulated for meaningful judicial review.
▶ 0:54:09Mr. Vladeck: On the individual rights side, a combination of rulings by the supreme court and legislation from congress as all but foreclosed damages by americans whose constitutional rights have been violated. The laguna comes at the expense of first and fourth amendment cap names, since unlike the claims we've already heard about this morning, violations of those provisions are typically fleeting.
▶ 0:54:33Mr. Vladeck: On the separation of powers side, the supreme court has likewise made it effectively impossible for litigants to challenge the presidential irrigation of the most important powers of congress. The power of the purse and control of the war power. Second, the political constraints that historically served to rein in systemic unconstitutional behavior by the executive branch have completely broken down.
▶ 0:54:57Mr. Vladeck: Examples abound, but there is an especially revealing one, in the statement from tom cole, appropriations chair, who suggested last year that it was perfectly fine for the president to ignore congressional appropriations, because in his words, not mine, and appropriation is not a law. In fact the constitution requires that appropriations be, by law, entirely so that this branch and not the president will decide how the people's money will and won't be spent.
▶ 0:55:26Mr. Vladeck: Both of these problems could be fixed quickly and easily by a congress that cared more about the separation of powers and the separation of parties. It would take a one sentence statute to ensure that everyone whose constitutional rights are violated by the federal government can have their day in court.
▶ 0:55:44Mr. Vladeck: Beyond a new legislation, congress, including this committee, has had numerous meetings to impose this directly through its oversight function and the ability to exact concessions out of the executive branch in exchange for everything from appropriations to appointments and if necessary, impeachment power. Finally, to whatever extent members of the committee may tell themselves that they can reclaim these abandoned powers the next time that a democrat's president, history and common sense or to the contrary.
▶ 0:56:15Mr. Vladeck: The more time passes, the harder these powers will be to clawback. In the interim, executive lawlessness and congressional abdication of responsibility combined not just to produce an unprecedented breakdown in the separation of powers, but a growing and seemingly unending array of deleterious impacts on both everyday people and at the risk of bringing some of this back to this committee's jurisdiction, the long-term security of our homeland.
▶ 0:56:42Mr. Vladeck: If we are going to talk about the constitution, we should talk about why and how it is being so systemically violated by the current administration, why and how congress sits idly by as it happens, why and how that attitude is destructive of our most fundamental ideals, and why and how a congress that took its possibility seriously should and would respond.
▶ 0:57:04Mr. Vladeck: As for the nominal topic of today's hearing, seems to me that at this moment in our history, regarding the second amendment we are burying our heads in the sand. Even if we cannot agree on much, I hope that we can all agree that it should be the case that the only way to hold the federal government accountable is to elect a new one. Thank you for holding this hearing today and I look forward to your questions.
▶ 0:57:32Chair Rand: Thank you. I will start things off with questions. I've been to thousands of rallies. I probably been a speaker at thousands of rallies. Attended hundreds. And at every rally I go to, someone is armed. People with me are armed. My driver is armed. And we do it for self-defense. At the ball field, 160 shots were fired at me and others.
▶ 0:57:59Chair Rand: I know what violence is like and I know how important it is to have people there. We had police there that day. They, the alexandria police, saved many lives. Steve scalise almost died. Another young man was shot in the arm, the bullet rattled around his rib cage. He did survive.
▶ 0:58:21Chair Rand: You know, I think that if we pass laws like we are talking about in virginia, where maybe it is ok for me to get protection but at you because you are a private citizen, I cannot imagine the hypocrisy of something like that. We have prominent people in our society, the richest in our society over time lobbying for gun control.
▶ 0:58:44Chair Rand: They want less guns out there, but they will have a phalanx of eight people to 10 people who are all armed because they can afford that and most of us cannot. Mr. cuccinelli, would you comment on the law and the distinctions they are talking about that the government can have a security but a private person, a ceo or even a bail bondsman, not a government job, but someone with a legal -- with a risky business, I can't
▶ 0:59:16Chair Rand: Imagine that bail bondsman gas, the repossessed cars no.
▶ 0:59:26Mr. Cuccinelli: The so-called assault weapons ban exam -- exempts government employees, which gets to that supreme court judge of the historical utility of a particular weapon. The law itself acknowledges that. Yet denies it to ordinary citizens. But allows their own employees to carry.
▶ 0:59:53Mr. Cuccinelli: To your two examples closer to the lines along which you described, there have been several amendments, the governor, the way the virginia process worked, the general assembly is now out of session and the governor can propose amendments back to the general assembly. Governor spanberger did that this week. The general assembly will be back next week to either accept or reject the amendments and then vote on the original bill if they reject the amendments.
▶ 1:00:20Mr. Cuccinelli: Several of those bills restrict exactly the kind of carrying rights and location you are describing. In heller, justice scalia spoke about sensitive places. Allowing room for regulation, meaning the banning of guns in, for instance, school buildings was an example that he used.
▶ 1:00:47Mr. Cuccinelli: What the virginia general assembly is now proposing goes far beyond that. So, if you are a person whose business or whose safety involves being armed, where you would choose to protect yourself that way, you are now in virginia going to be restricted, depending on how litigation ends up. I'm sure this will all be litigated, I hope to participate in that. Those restrictions are now very real.
▶ 1:01:17Mr. Cuccinelli: To my opening comment about the practical ability to utilize and exercise your right to self protection, as we all know here, this isn't granted by government . James madison didn't give us this right. The bill of rights was put in place to preserve what were understood to be already existing rights in the case of self-defense. Both of self and society.
▶ 1:01:48Mr. Cuccinelli: Unfortunately, that's the direction the current government in my home state is trying to go. I hope that we will be able to reintroduce them to the concepts of george mason and patrick henry, as well as james madison. I know that, driving by their houses in virginia, as we have that history there, it is nonetheless being ignored and now abused. And it is going to unfortunately have to be fought out in the courts to protect it.
▶ 1:02:20Chair Rand: Senator peters?
▶ 1:02:24Senator Peters: The constitution guarantees each of us certain liberties, including the freedom to speak our mind, practice our religion, receive due process, and the right to bear arms, as we have been talking about here today. Our framers knew that the freedoms protected under our constitution would be at risk if any one branch of government was allowed to go unchecked. They didn't trust anybody in government. Figured you had to make sure there were checks and balances.
▶ 1:02:55Senator Peters: Ronald reagan explained the importance of the system of checks and balances. "the genius of our constitutional system is that no one branch -- one branch of government alone could be of relied on to preserve our freedoms. The great safeguard of liberty is the totality of the constitutional system, with no one part getting the upper hand.
▶ 1:03:21Senator Peters: Professor, as you noted in your testimony, president trump went to war with iran without congressional approval as required in the constitution. You served congressional appropriations powers under article one hours that you were usurped and turned federal agencies against american citizens while most of my republican colleagues have either cheered him on or just look the other way.
▶ 1:03:45Senator Peters: My question for you, sir, is congress currently functioning as a coequal branch of government as outlined in the constitution and if not, what's the danger we are facing right now?
▶ 1:03:58Mr. Vladeck: It's a short-term danger and long-term danger. Short answer is no. Without congress, without the president having to look over his shoulder, there is nothing to stop them from engaging in evermore aggressive usurpation of appropriations, spending money he doesn't have, not spending money he is supposed to, violating individual rights in ways you cannot challenge in court, going on ever more misguided and misbegotten military operations to the detriment of our rights and
▶ 1:04:33Mr. Vladeck: Citizens. We have a course that has interpreted a separation of powers on the historical gloss. If the gloss is that the president can do what he wants as long as a majority of congress won't stop them, it's a gloss that can be performed by future presidents to do plenty of things it could be deeply problematic for the rule of law. Sen. peters courts are a possible check. Congress is a major check.
▶ 1:05:05Mr. Vladeck: And they thought congress was the preeminent of the three branches. The courts are important. Unfortunately, we have seen this administration based on recent actions believing they are above the law, including the court decisions. Time and again judges have found that the administration violated court orders.
▶ 1:05:25Mr. Vladeck: One federal judge found the department of homeland security had "utterly disregarded the earlier order and made no attempt to offer justification for their blanket -- blatant lack of effort to comply." another found that ice failed or refused to provide information order by the court.
▶ 1:05:44Mr. Vladeck: Another case found that the doj elected to simply "ignore valid court orders." to be clear, these are not liberal activist judges, as some of my colleagues would claim. These all come from judges appointed by donald trump. These are judges that he appointed that saw how outrageous it was for them to ignore these orders. What does it mean for americans if there isn't consistent adherence to the rule of law and son laws just don't get followed?
▶ 1:06:12Mr. Vladeck: At the founding, john adam says it's a government of laws, not men. If there are no violations for violating court orders, it's a world where that isn't true and it's a world with the president can do what he wants. Not too many people may care about those cases, they were immigration detention cases. If the government puts one of us in immigration detention and says you are not a U.S.
▶ 1:06:38Mr. Vladeck: Citizen, without them -- even if that's a mistake, the only way to get out is a government that will apply with an adverse court order. It's a slippery slope that we are falling down too quickly. Sen. peters the fourth amendment protects us from unjustified invasions of privacy by the government.
▶ 1:07:00Mr. Vladeck: This administration has basically disregarded decades-old privacy productions in order to track american locations using data brokers, monitoring social media activity, potentially even using spyware to break into the phones of americans. We are very concerned about these activities.
▶ 1:07:22Mr. Vladeck: My questions for you, professor, at the time when so many choose to share all kinds of online details, why should we be concerned about information the government is collecting right now, and how might they use these tools against us?
▶ 1:07:38Mr. Vladeck: The concern has been driven home by what we have seen this administration do, coming after people for their social media profiles, going after people who have done nothing wrong. There is a rich tradition, as you well know, of this congress actually stepping in to protect american privacy rights, even before the courts had a chance to do so.
▶ 1:08:05Mr. Vladeck: The wiretap act was a response to the supreme court refusal to comply with wiretaps. Those are the kinds of conversations we should be having about what is happening in our government right now, not the possibility that some state laws may be subject to challenge in court.
▶ 1:08:24Chair Rand: Senator johnson?
▶ 1:08:28Senator Johnson: I always like the hearings that kind of state focused on the title of the hearing, the second amendment. We can go into other areas, that's fine. Mr. pratt, you seem to not be particularly happy with this administration's reaction to some of these things. Same with Mr. brown. Not disagreeing with you at all. Mr. pratt, you said congress has to act.
▶ 1:08:53Senator Johnson: Problem is, those of us who support the second amendment, the opposition party basically wants to disarm americans. They say they won't, but that direction. It's obvious in terms of these gun laws and stuff. For the record, I would like you to list the things that the executive branch can do to induce sump -- or do some of the harm, the violations. I would say our constitutional right to keep and bear arms. Particularly on that confiscation list. Which is what I think it will be.
▶ 1:09:24Senator Johnson: By can they not just deep-sixed that? Should we be putting a lot of pressure on president trump and members of his administration to do that?
▶ 1:09:33Mr. Pratt: Gun owners of america has been working with the administration to do just that with the registry. They are coming out with a new rule. Under biden, they made those records permanent.
▶ 1:09:52Sen. Johnson: So just go through the administrative procedures act and you think that will happen?
▶ 1:10:03Mr. Pratt: The shall not be infringed years -- view is that they maintain it for zero years.
▶ 1:10:10Sen. Johnson: Mr. cuccinelli, I think you are a very observant follower of the supreme court. A lot of trump's actions have been challenged in court. The minority witnesses pointed those out. The president has a pretty good record in front of the supreme court, right? Have you been keeping track of that?
▶ 1:10:32Mr. Cuccinelli: He does. When you look at injunctions, for example, 90% of them came in five districts. That's probably not a coincidence.
▶ 1:10:44Sen. Johnson: There's been some venue shopping.
▶ 1:10:46Mr. Cuccinelli: Significantly so.
▶ 1:10:48Sen. Johnson: Professor vladek, I assume you are not a trump supporter. Doesn't sound like you are enamored with his administration.
▶ 1:10:56Mr. Vladeck: I'm not enamored of any administration that isn't committed constitution.
▶ 1:11:02Sen. Johnson: You talked a lot about work hours. Has any president since the war powers passed scented that is a constitutional constraint? Has any president not admitted that this is a constitutional act?
▶ 1:11:19Mr. Vladeck: We have seen presidents follow it.
▶ 1:11:23Sen. Johnson: You are not -- as any supreme court on it?
▶ 1:11:28Mr. Vladeck: As I suggested, the supreme court made it hard to challenge.
▶ 1:11:33Sen. Johnson: Did president obama ever get authorization and his military option -- action against libya?
▶ 1:11:40Mr. Vladeck: He did not.
▶ 1:11:42Sen. Johnson: Did president clinton in kosovo?
▶ 1:11:46Mr. Vladeck: That's a tougher question because it depends on how you with -- interpret the native treaty.
▶ 1:11:53Sen. Johnson: Congress did not declare war.
▶ 1:11:56Mr. Vladeck: Senator, I've been critical of the working powers --
▶ 1:12:00Sen. Johnson: You have blinders. You have blinders on. You have blinders on. Let me ask you another question. It was interesting in representative massie's territory, regime after regime after regime that he ticked off, the first action of these totalitarians, of these tyrants, was gun control. Ok? I thought it was interesting. He was leading right up to but didn't mention the ayatollahs. You know?
▶ 1:12:32Sen. Johnson: You are part of academia. I'm not sure about georgetown law, but it was shocking how many protests were in favor of hamas that occurred on college campuses. That's because we have leftist professors poisoning the minds of our young people. God, I hope our young people are watching.
▶ 1:12:59Sen. Johnson: I'm assuming that you don't support the ayatollah in iran, do you? Do you think they are anything less than a brutal, tyrannical threat and menace to world peace?
▶ 1:13:10Mr. Vladeck: No but I don't think that that is the standard for when presidents have constitutional authority to send --
▶ 1:13:16Sen. Johnson: I'm talking, I'm talking. Do you think it would be a good thing that the ayatollah is in the dustbin of history, no longer representing a threat and menace?
▶ 1:13:26Mr. Vladeck: What I think --
▶ 1:13:28Sen. Johnson: You can't answer that question?
▶ 1:13:31Mr. Vladeck: I don't know why what I think is relevant. Yes, I do, but the constitution --
▶ 1:13:36Sen. Johnson: They are a menace, that's my point. They get a nuclear weapon --
▶ 1:13:40Mr. Vladeck: So the law doesn't matter?
▶ 1:13:44Sen. Johnson: Lobbing a missile, hitting off, exploding a nuclear weapon, wiping us out. That's an existential threat. We had to act before we couldn't act. The hope was, hope was still there. That they could regain control and take their freedom. Why can they have been disarmed. Getting right back to the purpose of the hearing. The iranian people were disarmed by the brutal, tyrannical regime within iran.
▶ 1:14:15Sen. Johnson: When are we going to finally learn that lesson? Thank you, Mr. scher.
▶ 1:14:22Chair Rand: I will do the next round if anyone has any questions. I opened by talking about being a lot of rallies with guns. I've never seen anybody commit violence. That's not why I support the right to having a gun at a rally. It's about the practicalities that are supportive of it.
▶ 1:14:41Chair Rand: It's I would be interested if you know of statistics looking at legal gun owners and whether they commit crimes, how frequently compared to the criminal population, etc.
▶ 1:14:57Mr. Brown: The estimates are that there are somewhere around 22 million concealed handgun permits issued to americans. There are however -- as you mentioned, 29 states that allow permitless carry. Roughly 16 million people carry on a regular basis in america.
▶ 1:15:24Mr. Brown: That they commit crimes at one third the rate of other americans. People who don't carry. Those are broad general estimates but we know in states with permits that those people are arrested at a lower rate not just for gun crimes like carrying in an illegal place or sitting duck zone as congressman massey called it.
▶ 1:15:52Mr. Brown: They are also on a regular basis not arrested for other means like assault. I think we can surmise the reason. I carry virtually every waking moment. It is because there is an added level of seriousness when you carry a firearm and responsibility. Yeah, I think you avoid problems wherever you can.
▶ 1:16:22Chair Paul: Same question, Mr. pratt.
▶ 1:16:25Mr. Pratt: Statistics show concealed carry permit holders are commit -- commit crimes at a lower rate than the police do. Interestingly enough, you have more private citizens who stop over 50% mass shootings are stop by law-abiding citizens. That's a greater percentage than police.
▶ 1:16:53Mr. Pratt: That is because if you are in danger and a gun-free zone, the police are minutes away. If you are able to protect yourself, you are able to immediately respond.
▶ 1:17:01Chair Paul: I think that is the thing about people who don't own guns and fear the site of a gun. The gun scares them. People who own and carry guns are some of the most responsible people as far as safety, as far as everything else. They don't brandish their weapon. They are carrying a weapon for self-defense and it does work.
▶ 1:17:27Chair Paul: On the idea of separation of powers, some of the discussion is the application this is a one-sided thing. Somehow this is republicans are terrible, trump is terrible, may be are somehow good. Both parties have been abysmal of this. The court has not been good either. One of your colleagues, randy barnett, I with him on that.
▶ 1:17:57Chair Paul: A libertarian that thinks lockyer was correctly decided. Many on the left, the problem is that the court did decide they were going to make assertive decisions based on constitutional -- constitutionality. They decided the right to contract is a right in that states can't infringe upon the right to contract. That was a great direction which has been reversed by 100 years.
▶ 1:18:26Chair Paul: For 100 years, the court has shown deference. I will not mention the justice but I met one at a casual situation. The discussion was concerning no longer giving deference to the administration overturning chevron, which I'm in favor of. The question I had was, well, you seem differential. Why wasn't there discussion of the first amendment in the tiktok case?
▶ 1:18:55Chair Paul: The point that was made by the justice was we get deference to congress. -- give deference to congress. Some pretty explicit things. Taxes have to originate in the house. Tefra was a bill in 1986. The court will do stuff and never really decided. Recently we had a big case on tariffs.
▶ 1:19:22Chair Paul: I agree with the court's decision but they made the decision I think based on ash wwander. We will decide on the statute. I think there is some blame over there and certainly a lot of blame in congress. Really the blame is absolutely bipartisan. People switch their positions.
▶ 1:19:47Chair Paul: People who were once or now critical of the war power under president trump, which I have been, many were very quiet when president obama was bombing libya. That is the point senator johnson was making. The consistency on this position has been very, very partisan. I finish with let's start out with the court, lochner. Is that part of the problem?
▶ 1:20:19Chair Paul: And with ashwander, should that be biting us? -- binding us? >> I agree with more of what you said and you would expect. I have been a critic of the work hours and would have looked to expand of the senator johnson. The point you were making is the difference the court is showing to a congress that exercising is ordinary oversight and accountability powers.
▶ 1:20:49Chair Paul: I'm not here to blame one party or the other. At this particular moment we are seeing in technicolor how significant the cost of the application, whenever it started and whoever is to blame, are for the rights of all americans.
▶ 1:21:06Chair Paul: I think you are right. Congress is abdicating their duty. What about the court? Congress is not doing their duty. Does the court have a duty? They escape political questions and they try to decide things on nonconstitutional, which get back to lochner. They had a more certain idea if the state is acting unconstitutionally, they are bridging the right to contract, will that overturn state law? We got away from that. It's a question of lochner being correctly decided were not correctly decided.
▶ 1:21:37Chair Paul: If you want them to act in separation of powers issues, then is ashwander binding as far as going to the least common denominator is set based on the constitution?
▶ 1:21:52Mr. Vladeck: It depends on exactly what congress has done and said. The statute that was ambiguous. We might go think it is better to avoid the question. But what congress has tried to rein in the president and try to push back but the court to be deciding the question. I think we are seeing some of the same problem in that direction that we are talking about with regard to the relationship between congress and the executive branch. Congress used to be much more active in regulating the courts.
▶ 1:22:23Mr. Vladeck: The supreme court in particular. In the last generation we have seen that fall away as well.
▶ 1:22:30Chair Paul: Senator peters.
▶ 1:22:34Sen. Peters: . Thank you, Mr. chairman. The chairman and I agree this has been an issue with both parties over time. I was very clear that we have seen congress give powers to the executive on a continuous basis. We could argue whether or not it was accelerating. To that point, with war powers, I would like to hear your answer to the question our colleague asked about war powers.
▶ 1:23:05Sen. Peters: We are interested in learning about that and not just giving a speech.
▶ 1:23:09Mr. Vladeck: The point I was trying to make is presidents of both parties have abused the war powers. I don't think it's a particularly democrat or republican phenomena. Presidents will use the powers they have. Part of the problem is we have seen perhaps more aggressive pushback when the president was a democrat, perhaps those were periods when you cross party control.
▶ 1:23:35Mr. Vladeck: We have seen more aggressive pushback in a different party has controlled one or both chambers of congress then and when it was the same party and that's been true in both directions. The results should not be to say so-and-so is a hypocrite, but rather, let's fix the problem, period, rather than when someone else is in charge.
▶ 1:23:54Sen. Peters: The checks and balances work. When you don't have one party in control. You stated in your testimony the trump administration has been taking sweeping action undermine the first amendment. The chair of the federal communications commission threatened abc for airing a comedian who criticized the administration. This administration has revoked the press credentials of journals whose coverage basically he did not like.
▶ 1:24:25Sen. Peters: It targeted law firms, universities and government officials because it did not like their protected speech. It is trying to use federal grants now to force organizations to adopt the president's political ideology with federal money. Would you talk about congress's role in addressing the skill of the systemic violations of the first amendment right now?
▶ 1:24:50Mr. Vladeck: There are a couple of different things congress could do and prior congresses have done. The first is more robust oversight using nominations and hearings and budget hearings as opportunities to ask the administration what exactly it is doing and why. There are ways in which congress can condition funding for some of these agencies on not engaging in those behaviors. It is not unconstitutional for congress to condition federal funds on the at refusing to retaliate.
▶ 1:25:15Mr. Vladeck: I think congress could make it easier for those who are having their speech chilled in these contexts chilled in these contexts. I don't think it's possible for a well-meaning congress to actually enforce every single flashpoint between the government and its citizens. That's why the absence of a meaningful remedy even for ephemeral constitutional violations is something that has been exposed over and over as a structural flaw of our current moment.
▶ 1:25:41Sen. Peters: He also noted in your testimony the constitution grants congress, not the president, the power to decide how the government spends taxpayer money. The power of the purse allows us to basically serve as a check on abuses by the executive branch.
▶ 1:25:59Sen. Peters: After two american citizens were shot and killed by dhs officers as a result of the administration's tactics, many of us try to use the congress' spending power to ensure reform and accountability. When the president decides to ignore congress and claims the spending power for himself, it leaves congress with no leverage and the american people with no accountability.
▶ 1:26:25Sen. Peters: My question for you, are you aware of other instances in history for the president violated congress's power to appropriate funds and congress basically did nothing? What are the consequences when the administration ignores congress's appropriations power granted in article one of the constitution?
▶ 1:26:51Mr. Vladeck: I'm not aware of a negative example where we saw this degree of appropriations misbehavior by the executive branch had no congressional reaction. The control act itself was congress's response to not comparable but at least loosely analogous behavior by the nixon administration. Congress responded by reclaiming its power and indeed authorized some of the behavior president nixon engaged in. You can think the president having this power is a good thing or not.
▶ 1:27:22Mr. Vladeck: Congress has to provide it. What is missing from the conversation is the idea that if we like with the president is doing, we should not worry about separation of powers. To quote the supreme court, it would be ironic if in the name of national defense we would sanction this aversions of civil liberties -- subversion of civil liberties.
▶ 1:27:47Sen. Hawley: Mr. pratt, if I can start with you. I want to ask about something I think deserves answers. I have waited years for a response on this. And 2021, I sent a letter to president biden's atf asking about rule 2021r-5 about rule 2021r-05. They never gave me an answer.
▶ 1:28:14Sen. Hawley: Thankfully we have a new administration but it's often the case that old rules live on in a zombie like lifestyle through bureaucratic inertia. Do you know how many biden atf rules are still either on the books or continue to be enforced we should be concerned about?
▶ 1:28:35Mr. Pratt: There are several. With the one you mentioned, the doj and as of late -- as of last week they say they they intended to enforce the biden rule. Same with the engaged in business rule, same with the pistol brace rule. We are fighting every one of those. I'm glad you took an interest in the registry.
▶ 1:29:00Mr. Pratt: Gla foia'd the atf manual and you can search the make, model and serial number of every firearm made by smith & wesson. You can then use that as a confiscation list to know which ones where the pistols with stabilizing braces. When senator -- not senator.
▶ 1:29:21Mr. Pratt: Atf director testified before the congress, he told the senate judiciary committee they actually pay extra money to remove the search function on the names. That was supposed to be her big defense against the confiscation list. Our big defense against tyranny. What are stop paying after money? What if they open up the adobe document and some other type of document?
▶ 1:29:49Mr. Pratt: They would be able to search by name. The only answer we really have is to delete the registry.
▶ 1:29:56Sen. Hawley: Speaking of registry, sitting right now in a warehouse in west virginia -- you described this in your testimony -- is roughly one billion gun owner records. 94% of them already in digital format. Federal law is supposed to prohibit a national gun registry but I'm wondering what would you call that?
▶ 1:30:20Mr. Pratt: We would call that a registry.
▶ 1:30:21Sen. Hawley: If a future administration that is hostile to second amendment rights were to get his hands on those records, a billion names and other information, what you think it might be able to do with them?
▶ 1:30:37Mr. Pratt: That is the problem. With any gun ban they can search the makes and models of the guns. If they stop paying for the names attached, they know exactly who is not in compliance with the law. Which is something that already happened in new york city when they registered guns in the 1960's, passed a ban in the 1990's and did did spot checks on people that they believe were not complying with the law.
▶ 1:31:08Sen. Hawley: In 1967, new york required registration of rifles and shotguns and promised it would not be used for confiscation. They were confiscated. I think they went door-to-door in the late 1960's.
▶ 1:31:21Mr. Pratt: Mayor david dinkins assigned to the van.
▶ 1:31:22Sen. Hawley: In 1991, they banned another class of weapons and officials used an existing database to do the same thing, force confiscation. There is the example of our australian friends in 1996. Australia passed the national firearms agreement, which is restricted gun ownership and mandated firearm registry. Lo and behold, the enforced mandatory buybacks.
▶ 1:31:51Sen. Hawley: I seem to recall more than one democratic candidate for president talking about mandatory buybacks. This is not a far-fetched conspiracy theory. This is happening in our country and happened in our allies and nations. You have got members of the opposition party saying it's a great model. We should be concerned about this.
▶ 1:32:16Mr. Pratt: We should be concerned and that is why the registry cannot continue to exist, senator.
▶ 1:32:18Sen. Hawley: What is the thing we have to do and the most urgent action we need to take to make sure the registry is not abused and is eliminated so it cannot be used for nefarious purposes?
▶ 1:32:32Mr. Pratt: The no registry rights act by cloud in the house and freshen the senate would delete the registry. If congress would send it to the president, that would be fantastic.
▶ 1:32:43Sen. Hawley: I hope we will do that posthaste.
▶ 1:32:47Chair Paul: This is a good discussion. I would like to add we have been requesting information from the atf for quite a while. We sent a letter last year requesting the same information. We have gotten no response and no documents. We will pursue through the committee process of subpoenaing the information. It will be in consultation with the minority.
▶ 1:33:13Chair Paul: If you have an interest, you can work with our office and information to add to that subpoena. Etf hasn't given us anything in a year and that is too long. -- the atf. We refer to some of the foia things. There is evidence now that atf agents can have their own target that they can monitor for 30 to 180 days and monitor along with the fbi.
▶ 1:33:41Chair Paul: It sounds like no due process or courts or anybody involved. The fact they will not tell congress what they are doing, I think our patience is wearing thin and we should find out what's going on. Even when the administration changes, somebody in charge of the program may be the same people that were doing it in the previous administration. We will try to get to the bottom of that. I don't have any further questions. We have gone a couple rounds. Anything else you would like to say?
▶ 1:34:12Chair Paul: >> Mr. chairman? Can I comment on it? Senator peters did not use the phrase third-party doctrine but described examples of the third-party doctrine. It was established by the supreme court in the 1970's in a bank case and found case that we made a phone call and wires actually connected you to me. You could put a trap on it and see everybody I dialed.
▶ 1:34:41Chair Paul: The theory of the third-party doctrine is that if I dial my phone, I know I'm giving the phone company information. Therefore, giving up all constitutional rights to privacy.
▶ 1:34:55Chair Paul: A terrible theory. >> regardless if I have a contract with that phone company to keep the records private on the old pre-privacy theory of fourth amendment rights. Which was based on the constitution. Trespass theory, etc. Same with my bank records.
▶ 1:35:21Chair Paul: When I use a bank, and we all do, they fall under the same rules. You just commented about no warrants, no judicial, no due process. That's exactly right. All of our government agencies can just go ask the bank for your records. Then it is up to the bank whether they turn them over or even let you know about it.
▶ 1:35:51Chair Paul: It's a huge issue. The court helped a little bit to abbreviate the expanse of the third-party doctrine in the carpenter decision. I actually think and several senators were caught up in this recently.
▶ 1:36:09Chair Paul: Carpenter, the other case before that, they make the decision your geolocation is actually -- all the date of the court does not care about and they say you have no privacy interest or personal interest, you have it, your location. >> that was the jones case.
▶ 1:36:27Chair Paul: The jones case. I really think, and I do note that other senators if you are on the list, I think it needs to be pursued based on that case. They did look at geolocation. They are looking at where you are on january 6. The phone companies did not defend anyone.
▶ 1:36:50Chair Paul: One center and the other did not defend anybody -- can you sue -- you can see the foe companies but can you sue the government over it? >> you will run into sovereign immunity established by the supreme court.
▶ 1:37:15Chair Paul: You will not be able to successfully sue the government absent trying to go all the way to the supreme court and getting the third-party doctrine overturned.
▶ 1:37:26Chair Paul: Even though they allowed geolocation and is not protected? >> there was the bill congress passed last year that authorized some members or senators to sue over the phone number question. The larger point is that whether we are particularly concerned with the phone records of senators or americans who don't hold elected office, the problem is the same. There are woefully insufficient remedies for any government violation of our fourth amendment rights.
▶ 1:37:57Chair Paul: I agree completely. Smith and the other decisions were incorrectly decided. It took 60 years to go from homestead and say you can wiretapped anybody's phone all the way to katz. They got it right but they are not completely getting it right and carpenter and jones are a step in the right direction. I think jones is on point and I think you can win the case. My suggestion -- you are a lawyer. I don't know.
▶ 1:38:28Chair Paul: I think there is an opening. The geolocation they say is something that is not just data anymore. You have a personal interest in geolocation. >> they created exceptions to the third-party doctrine with respect to that level of nuance, which they did not foresee in the 1970's. The 1970's technology was not foreseen by the founders.
▶ 1:38:53Chair Paul: I would suggest it would be better and does not strike me as difficult to get bipartisan support to introduce this kind of protection given what has happened around here recently.
▶ 1:39:06Chair Paul: We had that legislation and I will introduce it again. Did you have a comment on this? I think we actually covered more than just the second amendment. We got some of the fourth amendment. We talked about the first amendment. The separation of powers. I think it was a good hearing. Thanks everybody.