The annual defense spending bill passed last week by the U.S. House of Representatives includes a couple of anti-gun measures.
The National Defense Authorization Act for Fiscal Year 2022, filed as H.R.4350 in the House, sailed through the closely divided body in a 316-113 vote with 135 Republicans supporting the bill. Besides hundreds of pages of defense spending, the NDAA includes language to allow so-called "red flag" gun seizures of privately-held guns from service members as well as an amendment that would dial back long pushed for export reform on firearms.
The seizure plan, added to the bill by U.S. Rep. Jackie Speier, a California Democrat with a long track record of supporting gun control, would allow a military court order to "restrain a person from possessing, receiving, or otherwise accessing a firearm." This could be issued on an ex parte basis, where the subject of the order is not present and only finds out about the order when the police knock on their door.
"In other words, military personnel could be forcibly disarmed of their lawfully-possessed firearms before having so much as an opportunity to contest the accusations against them and present evidence in their defense," noted the NRA on the proposal. "This would represent a clear denial of constitutional due process protections for those who have sworn an oath to protect and defend our country and the U.S. Constitution."
Such controversial orders have been adopted in 19 states and the District of Columbia, but extending it to a federal basis, even limited to military courts, would be a key victory for anti-gun groups.
In California, a state that adopted the "pre-crime" red flag law in 2016, the statute was at first rarely used, with just 85 cases in the first year. However, it has grown in popularity despite its low bar for protecting due process, with almost a whopping 1,300 such orders filed in 2020.
"I could not be more proud of this year’s effort and urge my colleagues in the Senate to quickly ratify and retain all provisions in the House-passed FY22 NDAA," said Speier.
Some in the GOP called foul on the move.
"I am outraged that House Democrats are once again trying to conceal unconstitutional red flag laws in the NDAA that could be used to unjustly deprive American service members of their Second Amendment rights,” said Rep. Greg Murphy, R-NC. "Our national defense bill is a key component of ensuring that our Armed Forces and their families have the resources they need, and it is reprehensible that Democrats are trying to use the NDAA to subvert our veterans’ right to possess a firearm."
Murphy contends, "both Republican and Democrat leadership have publicly assured Congress that this egregious language WILL be removed from the final version of the NDAA."
Lawmakers in the U.S. House also agreed to a move that would undo recent changes to the dense federal regulations on gun exports.
The move, an amendment to the NDAA, was agreed to in a Democrat-heavy 215 to 213 vote. Introduced by U.S. Rep. Norma Torres, D-CA, the proposal would cut away at President Trump's transfer of several weapons categories from export licensing controlled by the State Department to the more relaxed purview of the Commerce Department.
The three categories of the State Department’s United States Munitions List – those dealing with small arms including firearms, close assault weapons, combat shotguns, ammunition, and ordnance – transferred to the Commerce Control List, which, as previously reported, benefits domestic gun and ammo makers looking to sell more overseas.
"The State Department was also required to notify Congress every time it approved a license. Unfortunately, the Trump administration changed all of this," said Torres on the House floor." It moved the licensing of firearms export sales from the State Department to the Department of Commerce, and it changed the standard review process. They also ended the congressional notification process. The Department of Commerce is not currently required to notify Congress when they issue a munitions export license."
In a rebuttal to the argument from the California Democrat, U.S. Rep. Scott Perry, R-PA, pointed out that oversight of items clearly meant for military use are still under the purview of State Department control and still subject to Congressional notification requirements.
"Now, the Department of Commerce has been regulating exports of shotguns and specific types of ammunitions for decades and continues to do so today," said Perry. "For goodness' sake, even President Biden, who really doesn't have a clue about weapons, recommended that we all get a shotgun, didn't he? He said that."
Perry went on to point out that the House Foreign Affairs Committee, under the Export Control Reform Act, can already request any licenses or authorizations approved or denied by the Commerce Department.
"There isn't a problem," said Perry. "There is no basis for this amendment as it directly contradicts the spirit of this regulatory change. Shifting this regulatory function to Commerce does not and never has governed the illicit transfer of firearms."
Then, the Keystone State lawmaker went nuclear, saying, "If we wanted to get to the illicit transfer of firearms, and my colleagues on the other side were really serious about that, they would be interested to find out what ever happened with Fast and Furious," referencing the infamous ATF gun-walking program conducted during the Obama administration. "That was an illicit transfer of firearms."
The U.S. Senate still must complete work on that body's version of the NDAA, then the two chambers will have to address inconsistencies between the legislation to send to President Biden's desk.