[Senate Hearing 119-382]
[From the U.S. Government Publishing Office]
S. Hrg. 119-382
THE SECOND AMENDMENT
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
SECOND SESSION
__________
APRIL 15, 2026
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
63-505 PDF WASHINGTON : 2026
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RAND PAUL, Kentucky, Chairman
RON JOHNSON, Wisconsin GARY C. PETERS, Michigan
JAMES LANKFORD, Oklahoma MAGGIE WOOD HASSAN, New Hampshire
RICK SCOTT, Florida RICHARD BLUMENTHAL, Connecticut
JOSH HAWLEY, Missouri JOHN FETTERMAN, Pennsylvania
BERNIE MORENO, Ohio ANDY KIM, New Jersey
JONI ERNST, Iowa RUBEN GALLEGO, Arizona
ASHLEY MOODY, Florida ELISSA SLOTKIN, Michigan
William E. Henderson III, Staff Director
Christina N. Salazar, Deputy Staff Director and Chief Counsel
J. Ryan Arient, Professional Staff Member
David M. Weinberg, Minority Staff Director
Christopher J. Mulkins, Minority Director of Homeland Security
Alan S. Kahn, Minority General Counsel
Laura W. Kilbride, Chief Clerk
Ashley A. Gonzalez, Records Clerk
C O N T E N T S
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Opening statements:
Page
Senator Paul................................................. 1
Senator Peters............................................... 2
Senator Johnson.............................................. 17
Senator Hawley............................................... 24
Prepared statements:
Senator Peters............................................... 29
WITNESSES
WEDNESDAY, APRIL 15, 2026
Panel I
Hon. Thomas Massie, Member U.S. House of Representatives......... 4
Panel II
Hon. Ken Cuccinelli, Senior Fellow for Homeland Security and
Immigration, Center for Renewing America....................... 7
Erich Pratt, Senior Vice President, Gun Owners of America........ 9
Dudley Brown, President, National Association for Gun Rights..... 10
Stephen I. Vladeck, Agnes Williams Sesquicentennial Professor of
Federal Courts, Georgetown Law................................. 12
ALPHABETICAL LIST OF WITNESSES
Brown, Dudley:
Testimony.................................................... 10
Prepared statement........................................... 67
Cuccinelli, Hon. Ken:
Testimony.................................................... 7
Prepared statement........................................... 31
Massie, Hon. Thomas:
Testimony.................................................... 4
Pratt, Erich:
Testimony.................................................... 9
Prepared statement........................................... 33
Vladeck, Stephen I.:
Testimony.................................................... 12
Prepared statement........................................... 70
APPENDIX
Senator Paul's Letter to ATF..................................... 80
THE SECOND AMENDMENT
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WEDNESDAY, APRIL 15, 2026
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. Rand Paul, Chair
of the Committee, presiding.
Present: Senators Paul [presiding], Johnson, Lankford,
Scott, Hawley, Moreno, Moody, Peters, Hassan, and Blumenthal.
OPENING STATEMENT OF SENATOR PAUL
Chairman Paul. 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. Modern
prosperity and technology provide us with the means to enjoy
and exercise our God-given rights to a greater extent than ever
before. Yet as the means and interest of Americans in
exercising those rights have increased, so has the desire and
tools for tyrants, both inside and outside of government, to
tighten control over who, where, and how these rights are
exercised.
We have discussed, at great length, the grave attempts by
our government to censor unfavored, unpopular, and inconvenient
speech, no matter how true, during the pandemic and beyond. We
have also examined the threats to privacy and collection of
data about all aspects of our lives by a myriad of government
agencies.
Today we examine the growing threats by our government to
restrict the right to keep and bear arms, guaranteed by the
Second Amendment. In the wake of a Federal officer shooting and
killing a protester who was 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 same time.
Administration official stated, ``You cannot bring a
firearm loaded with multiple magazines to any sort of protest
that you want. It's that simple.'' Another administration
official said, ``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 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
which are convenient, depending on the political news of the
day. It is not their job to decide when and which of your
rights count on any given day, just as our constitutional
rights are nonpartisan and belong to all Americans across the
political spectrum. These liberties are also non-negotiable.
These freedoms are not independent of each other but are
undeniably bolstered by one another. They ensure that not only
Americans have rights but that they can defend and speak about
those rights without fear of government overreach. Unlike free
speech, free exercise, and privacy, the right to keep and bear
arms has been strengthened recently by the courts, and
restrictions on that right are being overturned.
In 2008, the Supreme Court upheld the Heller case, an
individual's right to possess firearms in the home. Two years
later, the Court ruled in the McDonald case that the right to
bear arms is applicable to laws enacted at the State and local
levels. In 2022, the Court again ruled on the side of liberty
in the Bruen case, stating that the Second Amendment protects
an individual's right to carry a handgun for self-defense
outside the home.
Even though the Supreme Court has made these rulings,
politicians have not given up. Their attempts to usurp our
constitutional right to keep and bear arms continues. In recent
months we have seen, in Virginia, the State where we won our
independence from the tyrannical British crown, forced through
the General Assembly countless pieces of misguided legislation
intending to disarm lawful gun owners. In fact, 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 I
misdemeanor for any person who imports, sells, manufactures,
purchases, or transfers an assault firearm, all while creating
an exemption for any government officer. As we saw during the
pandemic, the government's mantra continues to be ``rules for
thee but not for me.''
Unfortunately, the case in Virginia is not unique. Many
other states, including Colorado, Rhode Island, and California
passed similarly egregious legislation. While most of these
laws will undoubtedly be challenged through the courts, this
should be a wake-up call for every State across the Nation. 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 and act accordingly.
But what we really should do is aspire to, in this 250th
year of our Nation, is a government that stops asking how much
restriction on our liberties it 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.
The Ranking Member is recognized for his opening statement.
OPENING STATEMENT OF SENATOR PETERS\1\
Senator Peters. Thank you, Mr. Chair, and, Mr. Chair, I
certainly appreciate you convening this Committee for the
discussion here today.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 29.
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But given President Trump's unconstitutional and
unauthorized decision to go to war with Iran, his abuse of
power to enrich himself and punish his political enemies, and
his decision to usurp congressional powers, including the
appropriations of funds, I am troubled by the topic that we
have chosen. 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 may be some discreet 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.
The Trump administration's violations of Americans' First,
Fourth, and Fifth Amendment rights, and the Administration's
flouting of Congress' constitutional authorities are basically
creating a crisis for the rule of law in our country.
Meanwhile, Republicans in control of Congress have become mere
cheerleaders of the Executive while they allow the
constitutional power that Congress has to be undermined. That
is something that as the Senate's top oversight body I believe
this Committee should examine on a larger scale, and I hope
that you would consider that, Mr. Chair.
Today I want to expand the discussion to address these
other issues and what Congress must do to not only reclaim our
own authorities, as the co-equal branch of government, but also
how we can restore the checks and balances that our
Constitution created to ensure that no single branch of
government can infringe on the constitutional rights and
protections that are the very core of our democracy.
The Trump administration has pushed the bounds of executive
authority further than any other President, and our Republican-
led Congress has failed to push back, instead ceding its
constitutionally delegated responsibilities almost entirely to
the President. Those in control have laid down and allowed
loyalty to party to override duty, and even self-interest, when
preserving a meaningful check on the President.
Now, there is no question that past administrations of both
parties have tested these boundaries, so their authorities, and
Congress, as led by both parties, has basically been
responsible for delegating away these authorities over many
years. But today, we have an Administration that has refused to
follow the laws passed by Congress, abused emergency powers for
political purposes, imposed chaotic tariffs that have raised
prices on everyday goods for American families, bypassed
Congress to wage unjustified military interventions, and is now
trying to completely circumvent Congress' power of the purse by
refusing to pass bipartisan appropriation laws to fund key
functions of government. In return, we have a Republican
majority that has almost entirely capitulated to the
President's whims.
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 exercised
their rights to free speech, assembly, religion, petitioning
the government, and the press. This Administration has violated
Americans' Fourth Amendment rights by allowing immigration
enforcement officers to enter and search people's homes without
a judicial warrant. It has violated America's right to due
process under the Fifth Amendment, detaining and removing
individuals to countries they have no connection to and without
any opportunity to petition for redress from the government in
the courts.
Last year, I released a report detailing these
constitutional violations and the overreach from the Executive
Branch. In that report I laid out how the checks and balances
designed in our Constitution are absolutely vital to protecting
Americans' freedoms. I warned how President Trump's
unprecedented actions to usurp Congress' Article I powers
disregard the limitations of the Executive in Article II, and
defy the judiciary's Article III lawful court orders have
undermined our democratic principles and left us with a
President who now is completely unaccountable.
The Constitution provides Congress with the means necessary
to check an Administration that is eroding the very principles
and the institutions that have always made this country great.
But that is only possible if Congress, especially the party in
power, currently the Republican majority, stands up and takes
action. I know many of my colleagues on the other side of the
aisle are eager to discuss their views of perceived attacks on
the Second Amendment, but I urge all of you to join me in
broadening this discussion and finding the courage to take
action that will protect our laws and our most fundamental
rights before it is too late.
Thank you, Mr. Chair.
Chairman Paul. Our first witness will be Representative
Thomas Massie. Thomas Massie represents Kentucky's 4th
congressional District. He serves as the Chairman of the House
Second Amendment Caucus and sits on the Judiciary Subcommittee
on the Constitution and Limited Government. Congressman Massie,
you are recognized for your opening statement.
OPENING STATEMENT OF HON. THOMAS MASSIE, MEMBER, U.S. HOUSE OF
REPRESENTATIVES
Mr. Massie. Thank you, Chairman Paul and Ranking Member
Peters for allowing me to speak to the upper chamber here
today.
I am 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 the responsibility and
the rights that come with owning a firearm.
I formed the Second Amendment Caucus about a decade ago,
and have been using that venue to bring in people like Alan
Gura, the lawyer who was responsible for arguing the Heller
case and also the McDonald case, and he won both of those cases
in the Supreme Court. In fact, we have had Dick Heller in our
caucus, and we have had some of those brave men who have
stopped mass public shootings. It has been a great venue for
teaching myself and others more about the Second Amendment.
In keeping with the Committee's request, I prepared a
speech, but I will only deliver part of that, and then with
your indulgence, I would like to talk about some 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. There are no qualifiers on who may keep arms,
what types of arms they may keep, or for what purposes, and it
certainly doesn't say that the right to bear arms is about
trivial matters like deer hunting or skeet shooting. The Second
Amendment exists for one clear reason--defense, for the defense
of one's home, one's family, and one's 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.
Our Founders understood the greatest risks to liberty are
not always found outside a nation's borders, even though we go
looking for fights abroad, sometimes too frequently, but
oftentimes from within, when a corrupt and dangerous few grow
too ambitious and attempt to subjugate the masses. When such
tyranny arises, snakes prefer the path of least resistance.
They prefer a population that is vulnerable. As George Mason
reminded us, in 1788, ``To disarm the people is the best and
most effectual way to enslave them.''
History is riddled with oppressive states that striped and
abused their own people to keep riches for the assaulting
cabal, and in every instance, before those snakes bit, they
first took away the guns, whether it was Hitler, Stalin, Mao,
Castro, or Chavez. Gun confiscations and restrictions came
first. Then the infringement of all the other liberties, and in
many cases, millions were killed by their own governments. It
is not by the grace that America has averted similar
atrocities. It is because of our Constitution's design.
As Madison wrote, in Federalist 46, ``The advantage of
being armed, which the Americans possess over the people of
almost every other nation, forms a barrier against the
enterprises of ambition, a barrier against tyranny, and
oppression by a ruling class.''
To this point, I think it is incumbent upon us to advance
legislation that will protect 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 that I have sponsored in the
House that I want to talk about today, one is to repeal the Gun
Free School Zone Act. Ninety-four percent of mass public
shootings happen in gun-free zones, so we should not be
advertising 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 is easy to explain is a bill to allow
18-to 21-year-olds to buy handguns from a federally licensed
dealer. I think it is 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. We should repeal this Federal
restriction.
A piece of legislation that is coming up in the House next
month, which I think is very important, is to report some of
the data that we collect in the National Instant Criminal
Background Check System (NICS) database. When you go to buy a
gun you fill out a Form 4473--it is that gold form--and they
collect data on there that they never report. What we have
discovered, through my friend, John Lott, who is an economist
and a statistician and an author, is that there is inherent
racism in the NICS background check system. Because it is
sloppy and they check only phonetically similar names, when you
go to purchase a gun you can be deprived of purchasing that
gun, and the appeals process can get messy to prove you are not
the same person that they think is the person who is
prohibited.
It turns out if you are a Black American or Hispanic, you
are far more likely to share a name phonetically with somebody
who is a prohibited person, who has been convicted of a crime,
that has a punishment of a year or more. In fact, you are
probably twice as likely, if you are Hispanic, to be falsely
denied the purchase of a handgun and three times as likely if
you are Black to be denied the purchase of a gun at a dealer.
This bill that is coming up in the House would just--and by
the way, it has passed unanimously in our Judiciary Committee.
Democrats and Republicans have both voted for it--simply
requires the Department of Justice (DOJ) to publish that data,
not of individuals but in the aggregate, of the denials by sex
and also by race or ethnicity.
Finally, the bill that I am most excited about is the
National Constitutional Carry Act, and Senator Lee has that
here in the Senate now, and some of you are sponsors of that. I
thank you.
Several years ago there was legislation advanced to force
reciprocity among the states for concealed carry permits. Now,
that made sense at the time because in most of the states you
needed a permit to carry a firearm. But 29 states now recognize
that the right to keep and bear arms should not require
permission from your government to bear those arms, and so they
have permit-less carry.
I have advanced a bill, the National Constitutional Carry
Act, that would extend that to all 50 states and the
territories. Now, you may ask, well, does that violate the
Tenth Amendment? Are you infringing on State rights? Thanks to
the McDonald case, in 2010, which came two years after the
Heller case--see, Heller was decided in D.C. so it did not
impinge on the states--but the McDonald case, versus Chicago,
incorporated the Second Amendment to the states, so the states
are constrained by the Second Amendment. So no, it does not
violate the Tenth Amendment to tell the states that you must
follow the right to keep and bear arms in the Second Amendment.
I would love to see some action on that here in the Senate.
With that I will return to my prepared remarks and close.
When we look to our Constitution, remember it is a document
by our people, for the purpose of constraining our government,
not the other way around. The Second Amendment is the ultimate
check on our government. Any attack on those core tenets,
whether it is the Second Amendment, the First Amendment, or the
Fourth Amendment, or any other provision of our Constitution,
is dangerous and wrong, and 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. The great object is that every man be
armed.''
Thank you very much for allowing me to testify today.
Chairman Paul. Congressman Massie, thank you for your
statement today. We appreciate your time. Thanks for coming to
be with us.
The next panel will now come forward and take your places.
[Pause.]
It is the practice of the Homeland Security and
Governmental Affairs Committee (HSGAC) to swear in witnesses.
Will each of you please stand and raise your right hand.
Do you swear that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Mr. Cuccinelli. I do.
Mr. Pratt. I do.
Mr. Brown. I do.
Mr. Vladeck. I do.
Chairman Paul. Thank you. Our first witness will be Ken
Cuccinelli. He currently serves as the Senior Fellow for
Homeland Security and Immigration for the Center for Renewing
America. He previously served in the Virginia Senate and as
Virginia's Attorney General from 2010 to 2014.
Mr. Cuccinelli, welcome to the Committee.
TESTIMONY OF HON. KEN CUCCINELLI,\1\ SENIOR FELLOW FOR HOMELAND
SECURITY AND IMMIGRATION, CENTER FOR RENEWING AMERICA
Mr. Cuccinelli. Chairman, Ranking Member, and Members of
the Committee, thank you for the opportunity to testify today
on the evolving landscape of Second Amendment rights.
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\1\ The prepared statement of Mr. Cuccinelli appears in the
Appendix on page 31.
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I will focus on recent developments in the Commonwealth of
Virginia, which provide a timely and instructive case study of
how rapidly state-level policy can reshape the practical
exercise of a constitutional right.
In 2026, Virginia's General Assembly passed a sweeping
package of firearm-related legislation. These measures, taken
together, represent the most significant shift in firearm
policy in Virginia's modern history. They illustrate not only
the breadth of regulatory approaches being pursued nationwide,
but also the constitutional tensions that are likely to define
Second Amendment and state-level equivalents jurisprudence in
the coming years.
Most notably, Virginia lawmakers approved legislation that
would prohibit the sale, manufacture, importation, and transfer
of many commonly owned semi-automatic firearms classified as
``assault firearms,'' along with magazines capable of holding
more than 15 rounds. While generally allowing current owners to
retain previously acquired firearms, it would effectively halt
the future legal acquisition of entire categories of arms that
are widely possessed for lawful purposes and makes it
impossible for current owners to transfer their firearms, with
exceptions for government officials, which I will touch on
later.
This type of prospective ban raises serious constitutional
questions under both the Federal and Virginia constitutions. In
its individual rights jurisprudence, the U.S. Supreme Court has
emphasized that the Second Amendment protects arms ``in common
use'' for lawful purposes such as self-defense. Policies that
prohibit future acquisition while allowing continued possession
create a legal paradox. They implicitly acknowledge the
widespread lawful ownership of these firearms, while
simultaneously restricting future citizens from exercising the
same right.
In addition to firearm-specific bans, Virginia is expanding
restrictions on where firearms may be carried beyond
historically recognized ``sensitive places,'' to potentially
encompass large portions of ordinary public life. This raises
important questions under the Supreme Court's framework
requiring firearm regulations to be consistent with the
Nation's historical tradition of regulation.
Virginia lawmakers have also pursued policies imposing
affirmative legal duties on firearm owners. Secure storage
legislation would require individuals to store firearms in a
manner that prevents access by others. While the goal of
preventing unauthorized access is widely shared, such mandates
must be carefully evaluated to ensure they do not unduly burden
the core right of self-defense within the home, long recognized
as a central component of the Second Amendment, as noted, for
example, in the Heller decision.
Further, the commonwealth is expanding its use of ``red
flag'' laws. These laws allow for the temporary removal of
firearms from individuals deemed to pose a risk. Although
courts have generally upheld the concept, expansions to these
laws, particularly those affecting evidentiary standards,
duration, or who may initiate proceedings, raise due process
concerns that deserve 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.
Finally, the commonwealth has moved toward allowing civil
liability actions against firearm manufacturers and
distributors. Their approach seeks to navigate around existing
Federal protections in an effort to destroy this industry
through litigation. Taken together, these measures demonstrate
a broader trend to transform firearm policy from a framework
focused primarily on prohibited persons and background checks
into one that increasingly regulates categories of arms,
locations of carry, methods of storage, and the broader
ecosystem of lawful commerce, all in an effort to cut into the
rights of law-abiding gun owners and potential gun owners, and
in many respects, to attempt to turn such citizens into law
breakers 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 devolution also
creates growing divergence among states, leading to patchwork
of laws that may complicate compliance for ordinary citizens. 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 law carried over to 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, and that is what is
intended for it to be used as, and I expect to see that next
year in my beloved commonwealth.
With that I appreciate your time and consideration, and
look forward to answering your questions.
Chairman Paul. Thank you.
Next up we have Erich Pratt, who is the Senior Vice
President for Gun Owners of America (GOA), where he has been
employed since 1990. Mr. Pratt, you are recognized for your
opening statement.
TESTIMONY OF ERICH PRATT,\1\ SENIOR VICE PRESIDENT, GUN OWNERS
OF AMERICA
Mr. Pratt. Thank you. Chairman Paul, Ranking Member,
Members of the Committee, my name is Erich Pratt, and I serve
as Senior Vice President of Gun Owners of America. I represent
more than two million Americans who believe the Second
Amendment is the amendment that protects all the others.
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\1\ The prepared statement of Mr. Pratt appears in the Appendix on
page 33.
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I appreciate the opportunity to discuss some of the threats
to our Second Amendment rights, and I want to begin with the
gun owner registry that the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) is compiling. In 2021, GOA
exposed that the Biden administration had accumulated 54
million gun owner records in a single year. Now, Representative
Michael Cloud and 51 colleagues demanded answers from the ATF,
and what they received was shocking. The ATF admitted to
amassing nearly 1 billion records of American gun owners, with
94 percent already in digital format.
This is gun owner registration, pure and simple. It is a
violation of Federal law, and it is the reason the Senate
should pass Senator Risch's bill, S. 119. His bill would
destroy this illegal, searchable gun registry, hopefully by
dropping the ATF computers containing this database into the
deepest part of the ocean. Basically, ATF needs to have their
own boating accident.
Because, look. A database like this invites abuse, and we
have already seen it happen. Biden's ATF tried to ban up to 40
million pistols with stabilizing braces, and these were
firearms that had been legal during the Obama administration.
But by a stroke of the pen, Biden's ATF turned millions of
Americans into felons overnight.
Thankfully, GOA took this to court, and we won protection
for our members. But 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. This is not a registry in
name only. That is 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. Canada is now threatening to use
its registry to do door-to-door confiscations.
But this is not just an other-world problem. It has already
happened here. In the 1960s, New York City (NYC) began
registering long guns with promises that they would never
confiscate them. Yet by 1991, they banned many of those guns,
and in 1992, a New York paper reported that, ``Police raided
the home of a Staten Island man who refused to comply.'' They
seized his firearms and noted that spot checks were planned for
other homes. That is the problem with maintaining records of
gun owners' names. We are always just one step away from gun
confiscation.
Now, turning to some other important Federal issues, let me
say this. The Trump administration has achieved many pro-gun
victories in several departments outside of the DOJ, and I
champion those in my written testimony and talk about them.
Sadly, the Department of Justice has continued to fight us
in court at almost every turn, including on Biden's pistol
brace ban, his engaged in the business rule, and the frame and
receiver rule, which registers every gun sold after 2002. The
fact that a Republican DOJ is still defending Biden-era gun
rules, in whole or in part, should tell us everything. 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 is not about hunting. It is not
about sport. It ultimately about preserving freedom. But right
now our rights are under attack, by databases, by bureaucrats,
and by government attorneys who too often would rather defend
unconstitutional laws than the Constitution itself.
By the way, just a word for 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, because gun owners, as you know, are very politically
active, and every time the DOJ attempts to moot our cases or
continues to enforce a Biden-era policy, gun owners become less
excited to vote.
Thank you, and I look forward to answering your questions.
Chairman Paul. Thank you. Our next witness is Dudley Brown,
who is the Chief Executive Officer (CEO) of the National
Association for Gun Rights, where he has grown the group from a
small grassroots organization to the Nation's second-largest
gun rights group. Mr. Brown, you are recognized for your
testimony.
TESTIMONY OF DUDLEY BROWN,\1\ PRESIDENT, NATIONAL ASSOCIATION
FOR GUN RIGHTS
Mr. Brown. Thank you, Mr. Chair, Ranking Member, and
Members of the Committee. My name is Dudley Brown. I live in
northern Colorado. I am the President of the National
Association for Gun Rights, and it has been my privilege to
represent gun owners for 33 years now.
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\1\ The prepared statement of Mr. Brown appears in the Appendix on
page 67.
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A few months ago a man was shot and killed at a protest in
Minnesota. Now, I am not here to litigate Alex Pretti's
actions, whether the shooting was legally justified, or to
endorse the politics of the protest he attended. I suspect he
and I would have agreed on very little. My concern is what the
current Administration said afterward.
In those 33 years representing gun owners in State
legislatures and the Federal Government, what is the main tool
I have relied on to preserve firearms freedoms? Easy. The First
Amendment.
Today, I find it prudent to speak on the intersection
between the First and Second Amendments, and the reason is
simple. We, as a Nation, have never seen these rights as wholly
separate. The First Amendment is how free people speak to
power. Americans have shown since the founding they will
tolerate being governed, but not tolerate being ruled.
That is the arrangement that makes this country different
from every other on Earth, and it is precisely why an attack on
the right to bear arms at a lawful public assembly is not a
Second Amendment problem alone. It is an attack on the entire
architecture of American liberty.
Before I go further, let me disavow the notion that this is
a partisan issue. Regardless of the drastic changes of party
control over the White House and the two legislative chambers,
the one constant is that all those in power must be reminded
that a civil right is in place to protect all the people,
regardless of their politics, their race, or their creed.
Consider what was actually said by officials from the
Administration in the wake of that shooting. The President of
the United States said, ``You can't have guns. You can't walk
in with guns.'' The Federal Bureau of Investigation (FBI)
Director remarked, ``You simply cannot bring a firearm to a
protest.'' The former Secretary of Homeland Security said, ``I
don't know of any peaceful protester that shows up with a gun
and ammunition rather than a sign.''
That last statement is the most revealing. Former Secretary
Noem was not citing law. She was 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 have recognized.
Just before the Second Amendment was ratified, 6 of the 13
colonies did not merely permit citizens to carry firearms to
public assemblies, they actually required it. The generation
that wrote ``the right of the people peaceably to assemble''
looked at an armed citizen in a crowd and did not see a threat
to the peace. They saw its guarantee.
The argument being made implicitly is that you may have a
Second Amendment right and a First Amendment right, but not
both at once. Choose one. If you choose wrong, do not be
surprised if Federal agents unceremoniously snatch one of
those, or both of those rights from you.
Several states today forbid the carry of firearms at public
demonstrations. Those laws deserve scrutiny not only on
constitutional but also on historical grounds. Their roots
trace directly to the Jim Crow laws. A law conceived to control
a 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.
Each party has the same capacity for authoritarianism as
the other side when it serves their short-term interests. I
will ask the members in this room directly: Is this the
precedent we intend to set, that officials can decide, after
the fact, that a citizen had no right to carry because the
Administration disliked his politics? That is not a legal
conclusion. That is a rationalization.
There is no textual, historical, or traditional basis for
the proposition that Americans must choose between their First
and Second Amendment rights. You do not forfeit one by
exercising the other. These rights are not in competition. They
are the same right expressed twice. An armed people is a people
whose assembly the government must take seriously. A disarmed
people protest at the government's pleasure.
The Second Amendment does not exist in isolation. It exists
to ensure that all the others remain meaningful. The Founders
understood that. The statements made by this Administration
suggest they do not understand it. The Members of this
Committee have the standing, the authority, and the obligation
to say so. 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.
Chairman Paul. Thank you. Senator Peters will introduce the
next guest.
Senator Peters. Thank you, Mr. Chair. Our next witness is
Professor Stephen Vladeck, the Agnes Williams Sesquicentennial
Professor of Federal Courts at the Georgetown University Law
Center. Professor Vladeck is a nationally renowned expert on
the Supreme Court, Federal courts, national security law, and
military justice. He is also a highly recognized appellate
advocate, having argued before the Supreme Court, Federal
civilian courts, and military courts.
Professor Vladeck is the recipient of numerous awards for
his legal scholarship, including the 2024 University of Texas
President's Research Impact Award and a selection by the Order
of Cloth to serve as its Distinguished Visiting Professor for
2025.
Professor, thank you for taking the time to be here today.
TESTIMONY OF STEPHEN I. VLADECK,\1\ AGNES WILLIAMS
SESQUICENTENNIAL PROFESSOR OF FEDERAL COURTS, GEORGETOWN LAW
Mr. Vladeck. Thank you very much, Ranking Member Peters,
Chairman Paul, distinguished Members of the Committee. Thank
you for the invitation to testify today.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Vladeck appears in the Appendix
on page 70.
---------------------------------------------------------------------------
Of all of the conversations that we can and should be
having about the U.S. Constitution, this Committee's focus on
the Second Amendment strikes me as singularly misplaced. Every
day we see headlines documenting other unconstitutional
behaviors by this Administration, from arrogating Congress'
appropriations power to claiming the authority, to entering
private homes without judicial warrants, to suppressing and
chilling 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 even a scintilla of congressional authorization, which
led one commentator to post on social media that, ``It's a good
thing Congress isn't alive to see this.''
Indeed, all of this unconstitutional behavior has come not
in the face of a hostile Congress but without any attempt to
even obtain statutory authorization, even though the
President's party also controls both legislative chambers,
including this Committee.
Instead of making the case for why Congress should loosen
or repeal the various mandates that the Executive Branch is
regularly violating or should authorize the unilateral conduct
in which the Executive Branch is regularly engaging, this
Administration is effectively thumbing its nose at our elected
representatives, that is, at you. In response, this Committee
chose to hold this hearing.
It seems to me, Mr. Chairman, that it would be far more
useful for this Committee to discuss the structural problems
that have been highlighted by this Administration's disdain for
the Constitution, and two, in particular, stand out.
First, there is a large swath of unconstitutional behavior
by the Federal Government that has proven to be effectively
insulated from meaningful judicial review. On the individual
rights side, a combination of rulings by the Supreme Court and
legislation from Congress has all but foreclosed damages suits
by Americans whose constitutional rights have been violated.
That lacuna comes at the particular expense of First and Fourth
Amendment claims, since unlike the Second Amendment claims,
about which we have heard so much already this morning,
violations of those provisions are typically fleeting.
On the separation of powers side, the Supreme Court has
likewise made it effectively impossible for litigants to
challenge the President's arrogation of Congress' two most
important powers, its power of the purse and its control of the
war power.
Second, the political constraints that have historically
served to rein in systemic, unconstitutional behavior by the
Executive Branch have also completely broken down. Examples
abound, but an especially revealing one is a statement by House
Appropriations Committee Chairman Tom Cole, who suggested last
year that it was perfectly fine for the President to ignore
congressional appropriations because, in his words, not mine,
an 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 will not be spent.
Both of these problems could be fixed quickly and easily by
a Congress that cared more about the separation of powers than
the separation of parties. For instance, 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, and beyond new legislation, Congress, including
this Committee, has numerous means to impose such
accountability directly, through its oversight function, its
ability to exact concessions out of the Executive Branch in
exchange for everything from appropriations to appointments,
and, if necessary, its impeachment power.
Finally, to whatever extent Members of this Committee may
tell themselves that they can just reclaim these abandoned
powers the next time a Democrat is President, history and
common sense are both to the contrary. The more time passes,
the harder these powers will be to claw back. In the interim,
the Executive's lawlessness and Congress' abdication of
responsibility have 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.
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 is sitting
idly by while that happens, why and how that attitude is
destructive of our Nation's most fundamental ideals, and why
and how a Congress that actually took its constitutional
responsibility seriously should and would respond.
As for the nominal topic of today's hearing, it seems to me
that at this moment in our history, devoting resources to the
Second Amendment is burying all of our heads in the sand. Even
if we cannot agree on much, I hope we can all at least agree
that it should not be the case that the only way to hold the
Federal Government accountable is to elect a new one.
Thank you for inviting me to testify today, and I look
forward to your questions.
Chairman Paul. Thank you. We will now proceed to a round of
questions, and I will start things off. I have been to, I don't
know, thousands of rallies. I have probably been the speaker at
thousands of rallies. I have attended hundreds and hundreds of
rallies. At every rally I go to someone is armed, and the
people that are with me are armed. My driver is armed, and we
do it for self-defense.
I was also at the ballfield when 160 shots were fired at me
and others, so I know what violence is like, and I know how
important it is to have people there. We had Capitol Hill
Police there that day, and they and the Alexandria police saved
many lives. Steve Scalise almost died, and another young man
was shot under the arm. The bullet traveled around his rib cage
and came out the front of his chest, and did not get inside his
rib cage, and he survived.
But, I think if we pass laws like we are talking about in
Virginia, where maybe it is OK for me to get protection but not
for you because you are a private citizen, I just cannot
imagine the hypocrisy of something like that.
We have very prominent people in our society, some of the
richest people in our society, who all the time lobby for gun
control, and they want less guns out there. Yet they will have
a phalanx of eight to ten people with them, all armed, because
they can afford that, and most of us cannot.
I was wondering, Mr. Cuccinelli, if you would comment on
the law and the distinctions that they are talking about
between that the government could have security but a private
CEO or a private person or even a bail bondsman, not a rich
person but somebody who does a risky business of repossessing
cars, that somehow it would be illegal for them to have a gun.
I cannot imagine a government official, yes, and then the bail
bondsman or the repossessor of cars, no?
Mr. Cuccinelli. I will take the kind of highest profile.
The law they are passing, the so-called Assault Weapons Ban,
exempts government officials and employees, thereby
acknowledging the utility of the guns in question, which gets
to the Supreme Court's judge of historical utility of a
particular weapon. The law itself acknowledges that, and yet
denies it to ordinary citizens, but allows their own employees
to carry.
To examples closer along the lines of what you described,
there have been several amendments. The way Virginia's process
worked, the General Assembly is now out of session. The
Governor can propose amendments back to the General Assembly,
and Governor Spanberger has done that this week. The General
Assembly will be back next week to either accept or reject
those amendments and then vote on the original bill if they
reject the amendments.
Several of those bills restrict exactly the kind of
carrying rights and location that you are describing. In
Heller, Justice Scalia spoke about sensitive places, and
allowed room for regulation, meaning the banning of guns, in,
for instance, school buildings was an example that he used.
But what the Virginia General Assembly is now proposing
goes far beyond that. If you are a person whose business or
whose safety involves being armed, or you would choose to
protect yourself that way, you are now going, in Virginia, to
be restricted, depending on how litigation ends up. I am sure
all of this will be litigated. I hope to participate in that.
But those restrictions are now very real.
Again, to my opening comment about the practical ability to
utilize and exercise your right to self-protection, as we all
know here, this is not granted by government. James Madison did
not 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.
Unfortunately, that is the direction that 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, Patrick Henry, and James Madison. I know they have
driven by their houses while they have been driving around
Virginia, since we have that history there. Nonetheless, it is
being ignored and now abused, and it is going to,
unfortunately, have to be fought out in the courts to protect
it.
Chairman Paul. Senator Peters.
Senator Peters. Thank you, Mr. Chairman. The Constitution
guarantees each of us certain liberties, including the freedom
to speak our minds, 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, however, would be at risk if any one branch of
government was allowed to go unchecked. They did not trust
anybody in government, figured you had to make sure there were
checks and balances.
Ronald Reagan, I think, explained the importance of this
system of checks and balances very well, and I will just quote
Ronald Reagan. ``The genius of our constitutional system is its
recognition that no one branch of government alone could be
relied on to preserve our freedoms. The great safeguard of our
liberty is the totality of the constitutional system, with no
one part getting the upper hand.''
Professor Vladeck, as you noted in your testimony,
President Trump has gone to war with Iran without congressional
approval, as required in the Constitution, usurped Congress'
appropriations powers under Article I, powers are being
usurped, and turned Federal agencies against American citizens,
all while, unfortunately, most of my Republican colleagues have
either cheered him on or they just kind of look the other way.
My question for you, sir, is, is Congress currently
functioning as a co-equal branch of government, as outlined in
the Constitution, and if not, what is the danger that we are
facing right now? What should the American people be concerned
about?
Mr. Vladeck. The short answer, of course, is no, and I
think the danger is both a short-term danger, Senator, and a
long-term danger. Just briefly, the short-term danger is that
without Congress, without the President having to look over his
shoulder, there is nothing to stop him from engaging in ever-
more aggressive usurpation of appropriations, spending money he
does not have, not spending money he is supposed to, violating
individual rights in a context in which there is no way to
challenge that in court, and going on ever-more misguided,
misbegotten military operations, all to the detriment of our
national security, of our economy, of our rights.
Senator, in the long term, this destabilizes the ability of
Congress to ever exercise those powers again. We have a Supreme
Court that has interpreted the separation of powers, by
reference to what Justice Frankfurter called ``historical
gloss.'' If the gloss of the 2020s is that the President can do
whatever he wants as long as a majority of Congress is not
going to stop him, that is a gloss that can be deployed by
future Presidents, Senator, with whom you and I might agree
more to do plenty of things that I think would be deeply
problematic for our rule-of-law society.
Senator Peters. You mentioned the courts as a possible
check. Obviously, Congress is a major check, and I would argue
that our Founders always thought Congress was the preeminent of
the three branches. We are Article I. But the courts are
important, and unfortunately we have seen this Administration,
based on recent actions, believes that they are above the law,
including court decisions. Time and time again, judges have
found that the Administration has violated court orders.
One Federal judge found that the Department of Homeland
Security (DHS) had, ``utterly disregarded the court's earlier
order,'' and, ``made no attempt to offer any justification for
their blatant lack of effort to comply, thumbing their nose at
the court.'' Another found that U.S. Immigration and Customs
Enforcement's (ICE) refused to provide information ordered by
the court. Another case found that DOJ, ``elected to simply
ignore valid court orders.''
I want to be clear. These are not liberal activist judges,
as President Trump and some of my colleagues would claim. All
of these quotes come from judges that were appointed by Donald
Trump. These are judges he appointed, who saw how outrageous it
was for them to ignore these orders.
What does it mean for Americans if there is not a
consistent adherence to the rule of law and some laws just
simply do not get followed?
Mr. Vladeck. Yes, I mean, John Adams, at the founding,
said, ``Ours is a government of laws, not of men.'' A world in
which the Executive Branch does not abide by court orders and
faces no repercussions in Congress for violating court orders
is a world in which that is not true, and it is a world in
which the President can do what he wants.
Senator, too many people may not care about those cases
because those are immigration detention cases. But if the
government puts one of us in immigration detention and says,
``You are not a U.S. citizen,'' even if it is a mistake, the
only way to get out is a government that is going to comply
with an adverse court order. That is the problem. That is the
slippery slope. It is very slippery, and it is one that we are
falling down way too quickly.
Senator Peters. Thank you. The Fourth Amendment protects us
from unjustified invasions of privacy by the government.
However, this Administration has basically disregarded decades-
old privacy protections, to combine and share Americans' most
sensitive tax, health, and Social Security data. It is tracking
Americans' location using data brokers. It is monitoring their
social media activity, and potentially even using spyware to
break into the phones of Americans. I am very concerned about
these activities.
My question for you, sir, or Professor Vladeck, is at the
time when so many people chose to share all kinds of details
online, why should we be concerned about information the
government is collecting right now, and how might they use
these tools against us?
Mr. Vladeck. I think the concern, Senator, has been driven
home by what we have seen this Administration do, which is
retaliating against people because of, for example, what is in
their social media profiles, denying visas to non-citizens who
have done nothing wrong other than perhaps express sympathy for
Palestinians. That is not supposed to be how the government
uses our data, and there is a rich tradition, Senator, as you
well know, of this Congress actually stepping in to protect
Americans' privacy rights, even before the courts have had a
chance to do so. The Wiretap Act was a response to the Supreme
Court's refusal to apply the Fourth Amendment to wiretaps. That
is the kinds of conversations we should be having, about what
is happening in our government right not, not the possibility
that some State laws might be subject to challenge in court,
where those challenges are deeply available.
Senator Peters. Thank you.
Chairman Paul. Senator Johnson.
OPENING STATEMENT OF SENATOR JOHNSON
Senator Johnson. Thank you, Mr. Chairman. I appreciate you
calling this hearing. It is, I think, a very interesting one.
It is an important debate. I always like hearings that kind of
stay focused on the actual title of the hearing, which is ``The
Second Amendment.'' You want to go into other areas, that is
fine.
Mr. Pratt, you seem to not be particularly happy with this
Administration's reaction to some of these things. The same
with Mr. Brown. I am not disagreeing with you at all. Mr.
Pratt, you said that Congress has to act. The problem is we
have those of us who support the Second Amendment, the
opposition party basically wants to disarm Americans. I mean,
they say they won't but that is the direction, I think, is
pretty obvious in terms of all these guns laws and stuff.
I would just ask, for the record, I would like you to list
the things that the Executive Branch can do to undo some of the
harm, some of the violations, I would say, of our
constitutional right to keep and bear arms, and particularly
that confiscation list, which I think is pretty much what it is
going to be. I mean, why can't they just deep-six that? Is that
something this Administration could do, and should we be
putting a lot of pressure on President Trump and members of his
Administration to do just that?
Mr. Pratt. Thank you for the question, Senator Johnson. 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, because under Biden they made those records permanent.
Senator Johnson. We will go through the Administrative
Procedures Act (APA) and that will happen.
Mr. Pratt. I am sorry?
Senator Johnson. They will go through the Administrative
Procedures Act, and you believe that will happen.
Mr. Pratt. Yes.
Senator Johnson. OK.
Mr. Pratt. We are urging them, a ``shall not be infringed''
view would mean the ATF retains those 4473s for zero years, not
10, not 20, 30, or indefinitely, but zero.
Senator Johnson. Limited time. Mr. Cuccinelli, I think you
are a pretty observant follower of the Supreme Court. A lot of
President Trump's actions have been challenging in court.
Correct?
Mr. Cuccinelli. Yes.
Senator Johnson. The minority witness has pointed those
out. But President Trump has actually got a pretty good record
before the Supreme Court. Correct? Have you been keeping track
of that?
Mr. Cuccinelli. He does have a pretty good record before
the Supreme Court. He has a better record before the Supreme
Court than many of the lower courts. When you look at
injunctions, for example, over 90 percent of them came in five
districts. That is probably not a coincidence.
Senator Johnson. There has been a little venue shopping.
Mr. Cuccinelli. There has been significant venue shopping.
Senator Johnson. OK. Professor Vladeck, I assume that you
are not a Trump supporter. It does not sound like you are
particularly enamored with this Administration.
Mr. Vladeck. I am not enamored with any administration,
Senator, that does not commit to following the Constitution.
Senator Johnson. Right. You talked a lot about war powers.
Has any President since the War Powers Act been passed,
accepted that as a constitutional constrained on that
President?
Has any President not acknowledged, admitted that this is a
constitutional act?
Mr. Vladeck. I think we have seen Presidents follow it,
including President Carter.
Senator Johnson. Again, I am asking has any President
acknowledge this is constitutional? Has any Supreme Court ruled
on the constitutionality of the War Powers Act?
Mr. Vladeck. No, because as I suggested in my testimony the
Supreme Court has made it hard to challenge it.
Senator Johnson. Did President Obama ever get a
congressional authorization in his military action against
Libya?
Mr. Vladeck. No, he did not.
Senator Johnson. OK. Did President Clinton ever get
congressional authorization in his military action in Kosovo?
Mr. Vladeck. I think that one is a tougher question because
it depends upon how you interpret the North Atlantic Treaty
Organization (NATO) treaty and some of the authorities under
that.
Senator Johnson. He did not get authorization. Congress did
not declare war. Congress has not passed----
Mr. Vladeck. I agree. Senator, I have been critical of the
War Powers----
Senator Johnson. So you have blinders----
Mr. Vladeck [continuing]. By Presidents of both parties.
Senator Johnson. You have blinders on.
Mr. Vladeck. No. I think Presidents of both----
Senator Johnson. You have blinders on. Let me ask another
question. I thought it was very interesting in Representative
Massie's testimony the regime after regime after regime that he
ticked off, that the first action these totalitarians, these
tyrants, enacted was gun control, OK. I thought it was
interesting because he was leading right up to, but he did not
mention, the ayatollahs.
Professor Vladack, you are part of academia, who I just
think--I am not sure about Georgetown Law, but, it was shocking
how many protests in favor of Hamas occurred on college
campuses. That is because we have leftist professors poisoning
the minds of our young people. But I hope our young people are
watching. I am assuming, you do not support the ayatollahs in
Iran, do you? Do you think they are anything less than a
brutal, tyrannical threat and menace to world peace?
Mr. Vladeck. No, but I also do not think that is the
standard for when Presidents have the constitutional authority
to send Americans men and women into harm's way.
Senator Johnson. Do you think it would be a good thing if
the ayatollahs were on the dustbin of history, that they no
longer represented a threat and a menace to world peace? Do you
think that would be a good thing?
Mr. Vladeck. What I think and what this government has----
Senator Johnson. You cannot even answer that question?
Mr. Vladeck. Senator, I do not know why what I think is
relevant. Yes, I do, but I also think that you should be more
interested in what the Constitution provides for.
Senator Johnson. The point I want to make is they were a
menace. They are an existential threat. I mean, they get a
nuclear weapon, they have got missile technology.
Mr. Vladeck. So the law does not matter?
Senator Johnson. Park a barge off the United States, lob a
missile up, hit off, explode a nuclear weapon, wipe out our
electrical grid. That is an existential threat. We had to act
before we could not act. But the hope was in acting, the hope
is still there, that if we weaken the regime the Iranian people
can take control, regain their freedom. Why can't they? Because
they have been disarmed. Getting right back to the purpose of
this hearing, because the Iranian people have been disarmed by
the brutal, tyrannical regime within Iran. When are we going to
finally learn that lesson?
Thank you, Mr. Chairman.
Chairman Paul. Thank you, and we will do another round if
anybody has any other questions. I will start us off on that.
I opened by talking about that I have been to a lot of
rallies with guns. I have never seen anybody commit violence.
That is not why I support the right to have a gun at a rally.
The right is separate of whether the practicalities are
supportive of it. It is something that precedes government. It
is a natural right, the right of self-defense.
But I would be interested, Mr. Brown, if you know of any
statistics looking at legal gun owners and whether they commit
crimes, how frequently, compared to the criminal population, et
cetera.
Mr. Brown. Yes, thank you, Senator. The estimates are right
now that there are somewhere around 22 million concealed
handgun permits issued to Americans. There are, however, now,
as you mentioned, 29 states that allow permit-less carry. The
estimates are roughly that 16 million people carry on a regular
basis in America, and that they commit crimes at one-third the
rate of other Americans, people who do not carry. Of course,
those are broad, general estimates.
But we know in states with permits that those people are
arrested at a much lower rate, not just for gun crimes like,
for instance, carrying in a, ``illegal'' place or a sitting
duck zone, as Congressman Massie called them, but they are
also, on a regular basis, not arrested for other means, like
assault. I think we can surmise the reason.
I know, for me, I carry virtually every waking money that I
can. It is because there an added level of seriousness when you
do carry a firearm, and a responsibility. And so, yes, I think
you just avoid problems wherever you can.
Chairman Paul. Same question, Mr. Pratt.
Mr. Pratt. Yes, the statistics show that concealed carry
permit holders, for example, commit crimes at a lower rate than
the police do. Interestingly enough, you have more private
citizens who stop--over 50 percent of mass shootings in non-
gun-free zones are stopped by law-abiding citizens. That is
actually a greater percentage than police. That is because if
you are in danger and you are in a gun-free zone, the police
are minutes away, but if you are able to protect yourself, you
are able to immediately respond.
Chairman Paul. Yes, and I think that is the thing about
people who do not own guns and fear the sight of a gun, and the
gun scares them, is that people who own and carry guns are some
of the most responsible people, as far as safety, as far as
everything else. They do not brandish their weapon. They are
carrying a weapon for self-defense, and it does work.
On the idea of separation of powers, some of the discussion
is the implication that this is a one-sided thing, that somehow
this is Republicans are terrible, Trump is terrible, but maybe
Democrats were somehow good. I would say both parties have been
abysmal at this, and frankly, the court has not be very good
either.
One of your colleagues, Randy Barnett, goes back to
Lochner, and I am with him on that. I am a libertarian that
thinks Lochner was correctly decided. But it has been opposed
by most on the left, and many on the right, frankly, for the
last 100 years. The problem is in Lochner the Court did decide
that they were going to make assertive decisions based on
constitutionality. They basically decided in Lochner that the
right to contract is a right, and that states cannot infringe
upon the right to contract. That was a great direction, which
has been reversed by 100 years.
But for a 100 years now or more, the Court really has shown
deference. I will not mention the Justice, but I recently met
one in a casual situation, and the discussion was concerning no
longer giving deference to the administration overturning
Chevron, which I am in favor of. But the question I had to the
Justice was, ``Well, you seem pretty deferential. Why wasn't
there a discussion of the First Amendment in the TikTok case,
or why was it sloughed over for national security?''
The point that was made by the Justice was that, oh well,
we still give deference to Congress. When we have had questions
of separation of powers, for example, some pretty explicit
things. Taxes have to originate in the House. The Tax Reform
Act of 1986 (TRA) was a bill, back in 1986. Congressmen took it
there, and the Court basically will do stuff, like, you do not
have standing, and so they never really decided on it.
Recently we had a really big case on tariffs. I agree with
the Court's decision on the tariffs. But they also made the
decision, I think based on Ashwander, that, oh, we are not
really going to decide on the Constitution. Heaven forbid we
make a constitutional decision. We are going to decide it on
the statute.
I think there is some blame over there, and there is
certainly a lot of blame in Congress, but really the blame is
absolutely bipartisan and people tend to switch their
positions. People who were once are now very critical of the
war power under President Trump, which I have been. Many of
them were very quiet when President Obama was bombing Libya,
and that was the point I think Senator Johnson was making, is
that the consistency on this position has been very partisan.
I will just finish with, let's start out with the Court,
with Lochner. Decided correctly? Is that part of the problem?
Not decided correctly? Then with Ashwander, should Ashwander be
binding us and keeping the Court from making constitutional
judgment on what they call political questions?
Mr. Vladeck. Mr. Chairman, I agree with, I think, a lot
more of what you said than you might expect. I have been a
consistent critic of abuse of the war powers by Presidents of
both parties, and would have loved the chance to actually
explain that to Senator Johnson.
I think the point, though, that you are making, Mr.
Chairman, is that the deference the Court is showing assumes a
Congress that is exercising its ordinary oversight and
accountability powers. I am not here to blame one party or the
other, Mr. Chairman. My point is just that at this particular
moment in American history we are seeing, in technicolor, just
how significant the cost of that abdication, whenever it
started and whoever is to blame are for the rights of all
Americans.
Chairman Paul. Here is my question. I think you are right.
Congress is abdicating their duty. What about the Court then?
Congress is not doing their duty. Does the Court have a duty,
and they skate political questions, and they try to decide
things on non-constitutional, which gets back to Lochner. In
Lochner they had a more certain idea that if a State is acting
unconstitutionally, if they are bridging the right to contract,
we will overturn the State law. Then they got away from that.
Really it is the question of Lochner being correctly
decided or not correctly decided, and if the Court, if you want
them to act in separation of powers issues like this, then is
Ashwander, should it be binding as far as trying to go to the
least common denominator instead of deciding based on the
Constitution?
Mr. Vladeck. Mr. Chairman, I think the Ashwander question
is a nuanced one and really depends on exactly what Congress
has done and said. A statute, Mr. Chairman, that was ambiguous,
you and I might both think better to avoid the question. But
where I think Congress has clearly tried to rein in the
President, and has clearly tried to push back, the Court should
be deciding on the question.
If I may, just very briefly, I think we are seeing some of
the same problems in that direction that we are talking about
with regard to the relationship between Congress and the
Executive Branch, which is Congress also used to be much more
active in regulating the courts, and the Supreme Court in
particular. I think over the last generation we have seen that
fall away, as well.
Chairman Paul. Senator Peters.
Senator Peters. Thank you, Mr. Chairman. I agree. The
Chairman and I agree. This has been an issue with both parties
over time. In my opening comments I was very clear that we have
seen Congress give powers to the Executive on a continuous
basis. I think we could argue whether or not it is accelerating
or not, which was part of your point, Professor.
But to that point, with war powers, I know, Mr. Chairman, I
would actually like to hear your answer to the question our
colleague asked about war powers. We are actually interested in
learning about that, not just giving a speech.
Mr. Vladeck. Yes. I think that the point I was trying to
make to Senator Johnson is that I think Presidents of both
parties have abused the war powers, and I do not think it is a
particularly Democratic or Republican or conservative or
liberal phenomenon. Presidents are going to use the powers they
have, Senator.
I think part of the problem is that we have seen perhaps
more aggressive pushback when the President was a Democrat,
perhaps because those were periods when you had some cross-
party control. We have seen more aggressive pushback when a
different party has controlled one or both chambers of Congress
than when it has been the same party, and that has been true in
both directions.
It seems to me the result should not be to say, so-and-so
is a hypocrite, but rather to say, well then, let's fix the
problem, period, as opposed to let's fix the problem when
someone else is in charge.
Senator Peters. Yes. I think that is right, and the checks
and balances works. Sometimes when you do not have one control,
one party in all control, based on the partisanship that we are
seeing in the country right now, unfortunately.
Professor, you also stated in your testimony that the Trump
administration has taken sweeping actions to undermine the
First Amendment. The Chairman of the Federal Communications
Commission (FCC) threated the American Broadcasting Company
(ABC) for airing a comedian who criticized the Administration.
This Administration has also revoked the press credentials of
journalists whose coverage it basically did not like. It
targeted law firms, universities, and former 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.
Could you talk about Congress' role in addressing the scale
of the Trump administration's systemic violations, particularly
of the First Amendment right now?
Mr. Vladeck. Yes. It seems like there are a couple of
different things that Congress could do and that prior
Congresses have done. I think the first is more robust
oversight, using, for example, nominations hearings, using
oversight hearings, using budget hearings as opportunities to
ask the Administration what exactly it is doing and why. I
think there are ways in which Congress could 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 Administration refusing to retaliate.
But also, Senator, I think Congress could make it easier
for those who are having their speech chilled in these contexts
to sue directly, because I do not think it is possible, even
for a well-meaning Congress, to actually enforce every single
flash point between the government and its citizens. That is
why I think the absence of a meaningful remedy, even for
ephemeral constitutional violations, is something that has been
exposed over and over again as a structural flaw of our current
moment.
Senator Peters. Professor, you also noted in your testimony
the Constitution grants Congress, not the President, the power
to decide how the government spends taxpayer money. This power
of the purse allows us to basically serve as a check on abuses
by the Executive Branch.
After two American citizens were shot and killed by DHS
officers as a result of the Administration's tactics, many of
us tried to use the Congress' spending power to ensure reform
as well as accountability. But when the President decides to
ignore Congress and claims the spending power for himself, not
Congress, it leaves Congress basically with no leverage and the
American people with basically no accountability.
My question for you, sir, is are you aware of other
instances in history where the President has violated Congress'
power to appropriate funds and Congress basically did
absolutely nothing? What are the consequences when the
Administration ignores Congress' appropriations power, as
granted in Article I of the Constitution?
Mr. Vladeck. Senator, I am not aware of another example
where we saw this degree of appropriations misbehavior by the
Executive Branch and no congressional reaction. I think, as you
know, the Impoundment Control Act (ICA) itself was Congress'
response to not comparable but at least loosely analogous
behavior by the Nixon administration, and Congress responded
by, I think quite powerfully, reclaiming its power, and indeed,
authorizing, Senator, some of the behavior President Nixon had
engaged in, while prohibiting the rest of it.
It seems to me that is the point I would have liked to have
made to Senator Johnson, which is you can think the President
having this power is a good thing or not. The point is that
Congress has to provide it. It seems like what is missing from
this conversation is the idea that if we like what the
President is doing we should not worry about the separation of
powers.
Just to quote the Supreme Court for a second, it would be
ironic if in the name of national defense we would sanction the
subversion of one of our civil liberties that makes defense of
the Nation worthwhile.
Senator Peters. Thank you.
Chairman Paul. Senator Hawley.
OPENING STATEMENT OF SENATOR HAWLEY
Senator Hawley. Thank you very much, Mr. Chairman and
thanks to all of the witnesses for being here.
Mr. Pratt, if I could just start with you, I want to ask
you about something that I think deserves some answers. In
fact, I have waited years for a substantive response on this.
Back in 2021, I sent a letter to then President Biden's ATF
asking about Rule 2021R-05, which is the rule that requires gun
dealers to keep records on buyers permanently. They never gave
me an answer.
Thankfully, we now have a new administration, but it is
often the case that old rules live on in sort of zombie-like
lifestyle through bureaucratic inertia. Do you know, Mr. Pratt,
how many Biden-era ATF rules are still either on the books or
continue to be enforced, that we ought to be concerned about?
Mr. Pratt. Thank you for the question. Unfortunately, there
are several. With the one you just mentioned, the DOJ, even as
of last week, was saying they intend to enforce the Biden rule.
The same with the engaged in business rule. Same with the
pistol brace rule. We are fighting every single one of those.
I am so glad you took an interest in the registry, because
GOA actually the Freedom of Information Act (FOIA'd) the ATF
manual, and you can search the make, model, and serial number
of, let's say, every firearm made by Smith and Wesson. You
could then use that as a confiscation list to know which ones
were the pistols with stabilizing braces.
When ATF Director Steven Dettelbach testified before the
Congress he told the Senate Judiciary Committee that they
actually pay extra money to remove the search function on the
names, and that was supposed to be our big defense against a
confiscation list, our big defense against tyranny. They are
paying extra money. What if they stop paying the extra money,
or what if they open up that Adobe document in some other type
of document? They would still be able to search by name.
The only answer that we really have is to delete the
registry.
Senator Hawley. Speaking of registries, my understanding is
that sitting right now in a warehouse in West Virginia, and you
described this in your testimony, is roughly 1 billion gun
owner records, 94 percent of them that are already in digital
format.
Mr. Pratt. Yes.
Senator Hawley. Now, Federal law is supposed to prohibit a
national gun registry, but I am wondering, what would you call
that?
Mr. Pratt. We call that a registry.
Senator Hawley. It looks like it to me too. I mean, let's
just walk through this. If a future administration that is
hostile to Second Amendment rights in this country were to get
its hands on those records, 1 billion gun owners' names, other
information contained there, what do you think it might be able
to do with them?
Mr. Pratt. That is absolutely the problem, is with any gun
ban that is passed they are able to search the makes and models
of those guns, and if they stop paying for the names attached
to them they know exactly who is not in compliance with the
law, which, again, is something that already happened in New
York City when they registered guns in the 1960s, passed a ban
in the 1990s, and then they did spot checks on people that they
believed were not complying with the law.
Senator Hawley. In 1967, correct, New York required
registration of rifles, I think it was.
Mr. Pratt. That is right.
Senator Hawley. Shotguns, as well. Promised then that, oh,
it would not be used for confiscation. But then, in fact, they
were confiscated. I think they went door-to-door back in the
late 1960s.
Mr. Pratt. Mayor David Dinkens signed the ban, and that is
exactly what they did.
Senator Hawley. Then, in 1991, New York City also banned
another class of weapons, and officials used, as I understand
it, an existing database to do the same thing, to force
confiscation. There is also, I suppose, the example of our
Australian friends. In 1996, I think it was, Australia passed
the National Firearms Agreement (NFA), they called it, which,
as I understand it, restricted gun ownership and mandated the
creation of a firearm registry. Then, lo and behold, they went
and used that to enforce mandatory buybacks.
I seem to recall more than one Democratic candidate for
President talking about mandatory buybacks. I mean, this is not
a far-fetched conspiracy theory. This is something that has
happened in our country. It has happened in our ally nations.
You have members of the opposition party who are saying it is a
great model. I mean, we should be concerned about this,
shouldn't we?
Mr. Pratt. We should be concerned about it, and that is why
that registry cannot continue to exist, Senator.
Senator Hawley. What is the thing that we have to do? What
is the most urgent action we need to take, Mr. Pratt, to make
sure this registry (a) is not abused, and (b) is eliminated so
that it cannot be used for nefarious purposes, namely the
violation of the constitutional rights in the future?
Mr. Pratt. The No Registry Rights Act by Cloud in the House
and Risch in the Senate would delete that registry. If Congress
would take that up and send it to the President, that would be
fantastic.
Senator Hawley. I hope we will do that post haste. Thank
you very much for your testimony. Thank you, Mr. Chairman.
Chairman Paul. I think this is a good discussion, and
furthering on this I would just like to add that we have been
requesting information also from the ATF for quite a while. We
sent a letter\1\ in April of last year, requesting some of the
same information that you FOIA'd, and we have gotten no
response and no documents, and we have followed up.
---------------------------------------------------------------------------
\1\ The letter referenced by Senator Paul appears in the Appendix
on page 80.
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We are going to pursue, through the Committee, the process
of subpoenaing that information. It will be in consultation
with the minority. But if you have an interest in that, if you
will work with our office, if there is specific information you
want to add to that subpoena. It is a friendly administration,
but the ATF still is not giving us anything in a year. That is
just too long, and we should figure out more about it.
In our letter we refer to some of the FOIA'd things, and
apparently 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, through this. It sounds like no
due process or courts or anybody involved with this. The fact
that they will not tell Congress what they are doing, I think
our patience should wear thin, and I think we should really
find out what is going on over there. Because sometimes even
when an administration changes, people at the top change, but
somebody who is in charge of this program may be the exact same
people that were doing it in the previous administration. But
we are going to try to get to the bottom of that.
I do not have any further questions. We have gone a couple
of rounds. Do you have anything you would like to say? I think
we are going to wrap it up.
Mr. Cuccinelli. Mr. Chairman?
Chairman Paul. Yes.
Mr. Cuccinelli. Can I just comment on that briefly?
Chairman Paul. Yes.
Mr. Cuccinelli. Senator Peters earlier, he did not use the
phrase ``third-party doctrine,'' but he described examples of
what is the third-party doctrine. The third-party doctrine was
established by the Supreme Court in the 1970s in a bank case
and a phone case, back when we made a phone call and wires
actually connected, that connected you to me. You could put a
trap on it, and you could see everybody I dialed.
The theory of the third-party doctrine is that if I dial my
phone, I know that I am giving the phone company that
information, and therefore, giving up all constitutional rights
to privacy----
Chairman Paul. A terrible theory.
Mr. Cuccinelli [continuing]. Regardless of whether I have a
contract with that phone company to keep those records private,
on the old, pre-privacy theory of Fourth Amendment rights,
which was based on, oh, the Constitution, and trespass theory,
et cetera. Contract would fit in there. Same with my bank
records. When I use a bank, and we all do, they fall under the
same rules.
You just commented, Mr. Chairman, about no warrants, no
judicial, no due process. That is exactly right. Because all of
our government agencies can just go ask the bank for your
records. Now, then it is up to the bank whether they turn them
over, or even let you know about it.
Chairman Paul. Right. This is a huge issue----
Mr. Cuccinelli. Until that is legislated----
Chairman Paul [continuing]. A huge issue, and then 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, in
Carpenter--it was either Carpenter or the other case before
that--they make the decision that your geolocation is actually
among. It is all the data that the Court does not care about,
and they say you have no privacy interest and no personal
interest in. You do have it in your location.
Mr. Vladeck. That was Jones, Mr. Chairman.
Chairman Paul. Excuse me?
Mr. Vladeck. The Jones case, Mr. Chairman.
Chairman Paul. Jones case. So there are two, but it was the
Jones case.
I really think, absolutely, and I do not know if any of the
Senators--you were not on that list, were you? You were on the
list? But I think it needs to be pursued based on that case,
because they did look at geolocation. They are looking at where
you were on January 6th. Of course, the phone companies did not
defend anyone. One phone company defended one Senator, and the
other one did not defend anybody.
But I think you have a real case on this. The question is
whether or not this is a violation of the government or whether
the phone companies have an obligation to protect geolocation.
You could sue the phone companies, but can you sue the
government over it too?
Mr. Cuccinelli. You are going to run into sovereign
immunity, and with the third-party doctrine established by the
Supreme Court you will not be able to successfully sue the
government, absent trying to go all the way to the Supreme
Court, to getting the third-party doctrine overturned.
Chairman Paul. But even though they have allowed now that
geolocation is not protected by the third-party doctrine.
Mr. Vladeck. Mr. Chairman, there was the bill that Congress
passed last year, that I believe--Senator Hawley can correct
me, but I believe authorized at least some Members, perhaps
Senators, to sue over at least some of the phone records
questions.
But I do think the larger point, Mr. Chairman, is that
whether we are particularly concerned with the phone records of
Senators or Americans who do not hold elected office, the
problem is the same, which is that there are woefully
insufficient remedies for any government violation of our
Fourth Amendment rights.
Chairman Paul. Oh, I agree completely. I think Smith and
the other decisions were all incorrectly decided. It took 60
years to go from Olmstead and saying you could wiretap
anybody's phone, all the way to Katz. You had a long period of
time until the Court finally started getting it right, but they
still are not completely getting it right, and Carpenter and
Jones are a step in the right direction.
But I actually think Jones is on point here, and I do think
that you can win a case. My suggestion is that you get--oh, you
are a lawyer. I do not know. I think there still is an opening,
the third-party doctrine does not, because geolocation, they
say, is something that is not just that anymore. You have a
personal interest in geolocation.
Mr. Cuccinelli. They ratcheted or created exceptions, is
how I would characterize it, to the third-party doctrine with
respect to that level of nuance, which, of course, they did not
foresee in the 1970s. But the 1970s technology was not foreseen
by the Founders. I would suggest that it would be better, and
it does not strike me as particularly difficult, to get
bipartisan support to introduce this kind of protection,
particularly given what has happened around here recently.
Chairman Paul. We have that legislation, and I will
introduce it again. Thank you. Mr. Vladeck, did you have
another comment on this?
Mr. Vladeck. No. Mr. Chairman.
Thanks, everybody. I think we actually covered more than
just the Second Amendment. We did the Second Amendment, we got
some of the Fourth Amendment, we talked about First Amendment,
the separation of powers. I think it was a good hearing.
Thanks, everybody.
[Whereupon, at 11:24 a.m., the hearing was adjourned.]
A P P E N D I X
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