Rand Paul Leads Senate Homeland Security Committee Hearing On The Second Amendment

[0:03] As we reflect on the 250th anniversary of our nation, some of our most cherished rights stand [0:09] at the crossroads. Modern prosperity and technology provide us with the means to enjoy and exercise [0:15] our God-given rights to a greater extent than ever before. Yet as the means and interest of [0:21] Americans in exercising those rights have increased, so has the desire and tools for tyrants, [0:27] both inside and outside of government, to tighten control over who, where, and how these rights [0:32] are exercised. We have discussed at great length the grave attempts by our government to censor [0:38] unfavored, unpopular, and inconvenient speech, no matter how true during the pandemic and beyond. [0:45] We've also examined the threats to privacy and collection of data about all aspects of our lives [0:50] by a myriad of government agencies. Today we examine the growing threats by our government to restrict [0:57] the right to keep and bear arms guaranteed by the Second Amendment. In the wake of a federal officer [1:03] shooting and killing a protester who was legally carrying a holstered firearm, a succession of [1:09] federal officials rushed to declare that citizens cannot exercise their First and Second Amendment [1:15] rights at the same time. Administration officials stated you cannot bring a firearm loaded with [1:22] multiple magazines to any sort of protest that you want. It's that simple. Another administration [1:29] official said, if you approach law enforcement with a gun, there's a high likelihood they will be legally [1:35] justified in shooting you. Don't do it. These statements were alarming and are part of the reason [1:41] we're here today. Government employees take an oath to support and defend the entire Constitution of the [1:47] United States, not just the parts which are convenient, depending on the political news of the day. [1:52] It is not their job to decide when and which of your rights count on any given day. Just as our [1:59] constitutional rights are nonpartisan and belong to all Americans across the political spectrum, [2:03] these liberties are also non-negotiable. These freedoms are not independent of each other, [2:10] but are undeniably bolstered by one another. They ensure that not only that Americans have rights, [2:16] but that they can defend and speak about those rights without fear of government overreach. [2:22] Unlike free speech, free exercise, and privacy, the right to keep and bear arms has been strengthened [2:28] recently by the courts, and restrictions on that right are being overturned. In 2008, [2:34] the Supreme Court upheld the Heller case, an individual's right to possess firearms in the home. [2:39] Two years later, the court ruled in McDonald's case that the right to bear arms is applicable [2:44] to laws enacted at the state and local levels. And in 2022, the court again ruled on the side of [2:50] Liberty in the Bruin case, stating that the Second Amendment protects an individual's right to carry a [2:56] handgun for self-defense outside the home. Even though the Supreme Court has made these rulings, [3:01] politicians have not given up. Their attempts to usurp our constitutional right to keep and bear arms [3:07] continues. In recent months, we have seen in Virginia, the state where we won our independence from the [3:13] tyrannical British crown, forced through the General Assembly countless pieces of misguided legislation [3:19] intending to disarm lawful gun owners. In fact, just days ago, bills sent to the governor from the state [3:26] legislature aimed to prohibit the carrying of a loaded firearm in public across the Commonwealth. [3:32] Another bill poised to become law makes it a class one misdemeanor for any person who imports, [3:38] sells, manufacturers, purchases, or transfers an assault firearm, all while creating an exemption for [3:46] any government officer. As we saw during the pandemic, the government's mantra continues to be [3:53] rules for thee, but not for me. Unfortunately, the case of Virginia is not unique. Many other states, [4:00] including Colorado, Rhode Island, California, pass similarly egregious legislation. While most of these [4:06] laws will undoubtedly be challenged through the courts, this should be a wake-up call for every [4:11] state across the nation. It's important to look at these and other specific instances of [4:17] infringements on the right to keep and bear arms. We must be watchful to any and all violations and act [4:24] accordingly. But what we really should do is aspire to in this 250th year of our nation is a government [4:32] that stops asking how much restriction on our liberties it can get away with and instead asks [4:38] how it can protect and promote all of our rights, including our right to keep and bear arms. [4:45] The ranking member is recognized for his opening statement. [4:49] Well, thank you. Thank you, Mr. Chairman. And Mr. Chairman, I certainly appreciate you convening this [4:54] committee for the discussion here today. But given President Trump's unconstitutional and unauthorized [5:01] decision to go to war with Iran, his abuse of power to enrich himself and punish his political enemies [5:09] and his decision to usurp congressional powers, including the appropriations of funds, I'm troubled by [5:17] the topic that we've chosen. So while I agree that the Constitution gives Americans the right to bear arms, [5:24] the Second Amendment is one of many such liberties that are guaranteed by the U.S. Constitution. [5:29] And while there are maybe some discreet examples where the right has been tested, [5:35] the Second Amendment is simply not under the same threat as so many of our other constitutional rights [5:41] today. The Trump administration's violations of Americans' First, Fourth, and Fifth Amendment rights [5:48] and the administration's flouting of Congress's constitutional authorities are basically creating a [5:54] crisis for the rule of law in our country. Meanwhile, Republicans in control of Congress have [6:01] become mere cheerleaders of the executive while they allow the constitutional powers that [6:07] Congress has to be undermined. That's something that has sent a top oversight body. I believe [6:13] this committee should examine on a larger scale and hope that you would consider that, Mr. Chairman. [6:17] So today, I want to expand the discussion to address these other issues and what Congress must do to [6:24] not only reclaim our own authorities as the co-equal branch of government, but also how we can restore [6:30] the checks and balances that our Constitution created to ensure that no single branch of government [6:36] can fringe on the constitutional rights and protections that are the very core of our democracy. [6:42] The Trump administration has pushed the bounds of executive authority further than any other [6:48] president. And our Republican-led Congress has failed to push back, instead ceding its [6:54] constitutional delegated responsibilities almost entirely to the president. Those in control have [7:00] laid down and allowed loyalty to party to override duty and even self-interest when preserving a [7:07] meaningful check on the president. Now, there's no question that past administrations of both parties [7:13] have tested these boundaries of their authorities. And Congress, as led by both parties, have basically [7:19] been responsible for delegating away these authorities over many years. But today, today we have an [7:26] administration that has refused to follow the laws passed by Congress, abused emergency powers for [7:33] political purposes, imposed chaotic tariffs that have raised prices on everyday goods for American [7:39] families, bypassed Congress to wage unjustified military interventions, and is now trying to [7:46] completely circumvent Congress's power of the purse by refusing to pass bipartisan [7:52] appropriation laws to fund key functions of government. And in return, we have a Republican [7:58] majority that has almost entirely capitulated to the president's whims. On top of that, this [8:04] administration has repeatedly violated the First Amendment rights of Americans by retaliating [8:09] against and even going so far as to arrest individuals who exercise their rights to free speech, [8:15] assembly, religion, petitioning the government, and the press. This administration has violated [8:22] Americans' Fourth Amendment rights by allowing immigration enforcement officers to enter and search [8:27] people's homes without a judicial warrant. And it has violated America's right to due process under the Fifth [8:34] Amendment, detaining and removing individuals to countries they have no connection to and without any [8:39] opportunity to petition for redress from the government in the courts. Last year, I released a report [8:45] detailing these constitutional violations and the overreach from the executive branch. And in that [8:51] report, I laid out how the checks and balances designed in our Constitution are absolutely vital to [8:57] protecting Americans' freedoms. And I warned how President Trump's unprecedented actions to [9:03] usurp Congress' Article I powers, disregard the limitations of the executive in Article II, and defy the [9:11] Judiciary's Article III lawful court orders have undermined our democratic principles and left us with a [9:17] president who now is completely unaccountable. The Constitution provides Congress with the means necessary to [9:23] check an administration that is eroding the very principles and the institutions that have always made this [9:29] country great. But that is only possible if Congress, especially the party in power, currently the Republican [9:36] majority, stands up and takes action. And I know many of my colleagues on the other side of the aisle are eager to [9:43] discuss their views on perceived attacks on the Second Amendment. But I urge all of you to join me in broadening this [9:49] discussion and finding the courage to take action that will protect our laws and our most fundamental rights [9:55] efforts to take action that will protect our laws and our laws and our laws and our laws and our laws. [10:11] Before it's too late. Thank you, Mr. Chairman. Our first witness will be [10:14] Representative Thomas Massey. Thomas Massey represents Kentucky's fourth [10:18] congressional district. He serves as the chairman of the House Second Amendment Caucus and sits on the [10:23] Judiciary Subcommittee on the Constitution and Limited Government. Congressman Massey, you are recognized for your opening [10:25] statement. Thank you, Chairman Paul and Ranking Member Peters for allowing me to speak to the upper [10:30] chamber here today. I'm very passionate about this issue of the right to keep and bear arms. I got my [10:38] first firearm when I was 12 years old from my father and with that I learned the responsibility and the [10:43] rights that come with owning a firearm. I formed the Second Amendment Caucus about a decade ago and have been [10:53] using that venue to bring in people like Alan Gera, the lawyer who was responsible for arguing the Heller [10:59] case and also the McDonald case and he won both of those cases in the Supreme Court. In fact, we've had Dick [11:05] Heller in our caucus and we've had some of those brave men who have stopped mass public shootings and [11:12] it's been a great venue for teaching myself and others more about the Second Amendment. In keeping with the [11:20] committee's request, I've prepared a speech but I'll only deliver part of that and then with your [11:25] indulgence, I'd like to talk about some legislation that I think is important that's sitting in the [11:30] House. The simple and direct language of our Constitution is clear. The right of the people to [11:36] keep and bear arms shall not be infringed. There are no qualifiers on who may keep arms, what types of arms [11:42] they may keep or for what purposes and it certainly doesn't say that the right to bear arms is about [11:48] trivial matters like deer hunting or skeet shooting. The Second Amendment exists for one clear reason, [11:54] defense. For the defense of one's home, one's family and one's community. For the defense of liberty and [12:01] safety, not only from a lone assailant but from the whole of tyrannical government. That is why we [12:07] have the Second Amendment. Our founders understood the greatest risk to liberty are not always found [12:12] outside a nation's borders, even though we go looking for fights abroad sometimes too frequently. [12:18] But oftentimes from within, when a corrupt and dangerous few grow too ambitious and attempt to [12:24] subjugate the masses. And when such tyranny arises, snakes prefer the path of least resistance. They [12:32] prefer a population that is vulnerable. And as George Mason reminded us in 1788, to disarm the people [12:39] is the best and most effectual way to enslave them. History's riddled with oppressive states that stripped [12:45] and abused their own people to keep riches for the assaulting cabal. And in every instance before those [12:52] snakes bit, they first took away the guns. Whether it was Hitler, Stalin, Mao, Castro, or Chavez. Gun [12:59] confiscations and restrictions came first. Then the infringement of all the other liberties. And in many [13:05] cases, millions were killed by their own governments. It's not by the grace that America has averted [13:13] similar atrocities. It's because of our constitution's design. As Madison wrote in Federalist 46, [13:19] the advantage of being armed with the Americans possessed over the people of almost every other [13:27] nation forms a barrier against the enterprises of ambition, a barrier against tyranny and oppression [13:33] by a ruling class. To this point, I think it's incumbent upon us to advance legislation that will protect [13:41] the second amendment here. We've sworn an oath to the constitution to protect it from enemies from [13:48] within and abroad. Four pieces of legislation that I've sponsored in the house that I want to talk [13:54] about today. One is to repeal the gun-free school zone act. Ninety-four percent of mass public shootings [14:02] happen in gun-free zones. And so we shouldn't be advertising as the default that our children are [14:09] sitting ducks that are unprotected. In the states and school zones where they have allowed the carrying [14:16] of firearms, there have been no such catastrophes. The other bill that's easy to explain is a bill to [14:23] allow 18 to 21-year-olds to buy handguns from a federal federally licensed dealer. I think it's somewhat [14:30] ridiculous that you can be conscripted to serve your country in a war. You can be 18, 19, or 20 and forced [14:37] into service to fight for your country, but you can't defend your own family with a handgun that you bought [14:44] at a licensed dealer. So we should repeal this federal restriction. A piece of legislation that's coming [14:51] up in the house next month, which I think is very important, is to report some of the data that we collect [14:57] in the NICS database. When you go to buy a gun, you fill out a form 4473. It's that gold form. And they collect data [15:05] on there that they never report. And what we've discovered through my friend John Lott, who's an [15:10] economist and a statistician and an author, is that there's inherent racism in the NICS background [15:16] check system. Because it's sloppy and they check only phonetically similar names, when you go to [15:22] purchase a gun, you can be deprived of purchasing that gun. And the appeals process can get messy to prove [15:28] you're not the same person that they think is the person who's prohibited. It turns out, if you're [15:34] a black American or Hispanic, you're far more likely to share a name phonetically with somebody [15:41] who's a prohibited person who's been convicted of a crime of a year that has a punishment of a year [15:47] or more. In fact, you're probably twice as likely, if you're Hispanic, to be falsely denied the purchase of [15:53] a handgun and three times as likely, if you're black, to be denied the purchase of a gun at a dealership, [15:59] at a dealer. So this bill that's coming up in the House would just, and by the way, it's passed [16:06] with unanimously in our Judiciary Committee. Democrats and Republicans have both voted for it. [16:11] Simply requires the DOJ to publish that data, not of individuals, but in the aggregate of the denials [16:18] by sex and also by race or ethnicity. Finally, the bill that I'm most excited about is the National [16:25] Constitutional Carry Act. And Senator Lee has that here in the Senate now, and some of you are sponsors [16:33] of that. I thank you. Several years ago, there was legislation advanced to force reciprocity among the [16:41] states for concealed carry permits. Now, that made sense at the time, because in most of the states, [16:46] you needed a permit to carry a firearm. But 29 states now recognize that the right to keep and bear arms [16:54] should not require permission from your government to bear those arms. And so they have permit permitless [17:00] carry. I've advanced a bill, the National Constitutional Carry Act, that would extend that to all 50 states [17:06] and the territories. Now, you may ask, well, does that violate the 10th Amendment? Are you infringing on state [17:13] rights? Well, thanks to the McDonald case in 2010, which came two years after the Heller case. See, [17:20] Heller was decided in D.C., so it didn't impinge on the states. But the McDonald case versus Chicago [17:28] incorporated the Second Amendment to the states. So the states are constrained by the Second Amendment. [17:33] So, no, it does not violate the 10th Amendment to tell the states that you must follow the right to [17:39] keep and bear arms in the Second Amendment. So I'd love to see some action on that here in the Senate. [17:46] With that, I'll return to my prepared remarks and close. When we look to our Constitution, [17:53] remember, it's a document by our people for the purpose of constraining our government, [17:59] not the other way around. The Second Amendment is the ultimate check on our government. Any attack on [18:05] those core tenants, whether it's the Second Amendment, the First Amendment, or the Fourth [18:09] Amendment, or any other provision of our Constitution is dangerous and wrong. And one does not need to [18:15] look too far back in history to find examples of why. And I'll close with these words from Patrick [18:22] Henry. Guard with jealous attention to public liberty. Suspect everyone who approaches the jewel. [18:29] The great object is that every man be armed. Thank you very much for allowing me to testify today. [18:37] Congressman Massey, thank you for your statement today. We appreciate your time. [18:40] Thanks for coming to be with us. The next panel will now come forward and take your places. [18:48] It is the practice of this committee to swear in witnesses. Will each of you please stand and raise your [19:15] right hand. Do you swear that the testimony you will give before this committee will be the whole truth, [19:22] will be the truth, the whole truth, and nothing but the truth. So help you God. Thank you. [19:27] Thank you. Our first witness will be Ken Cuccinelli, currently serves as the senior fellow for [19:39] Homeland Security and Immigration for the Center for Renewing America. He previously served in the [19:45] Virginia Senate and as Virginia's Attorney General from 2010 to 2014. Mr. Cuccinelli, welcome to the committee. [19:52] And members of the committee, thank you for the opportunity to testify today [19:59] on the evolving landscape of Second Amendment rights. I'll focus on recent developments in the [20:04] Commonwealth of Virginia, which provide a timely and instructive case study of how rapidly state [20:10] level policy can reshape the practical exercise of a constitutional right. In 2026, Virginia's General [20:18] Assembly passed a sweeping package of firearm related legislation. These measures taken together [20:24] represent the most significant shift in firearm policy in Virginia's modern history. They illustrate not [20:29] not only the breadth of regulatory approaches being pursued nationwide, but also the constitutional [20:35] tensions likely to define Second Amendment and state level equivalence jurisprudence in the coming [20:42] years. Most notably, Virginia lawmakers approved legislation that would prohibit the sale, manufacture, [20:48] importation, and transfer of many commonly owned semi-automatic firearms classified as assault firearms, [20:55] along with magazines capable of holding more than 15 rounds. While generally allowing current owners to [21:01] retain previously acquired firearms, it would effectively halt the future legal acquisition of entire [21:08] categories of arms that are widely possessed for lawful purposes and makes it impossible for current owners to [21:14] transfer their firearms, with exceptions for government officials, which I'll touch on later. This type of [21:22] perspective ban raises serious constitutional questions under both federal and Virginia [21:27] constitutions. In its individual rights jurisprudence, the U.S. Supreme Court has emphasized that the [21:33] Second Amendment protects arms in common use for lawful purposes such as self-defense. Policies that [21:41] prohibit future acquisition while allowing continued possession create a legal paradox. They implicitly [21:48] acknowledge the widespread lawful ownership of these firearms while simultaneously restricting future [21:55] citizens from exercising the same right. In addition to firearms-specific bans, Virginia's expanding [22:01] restrictions on where firearms may be carried beyond historically recognized sensitive places to [22:08] potentially encompass large portions of ordinary public life. This raises important questions under the [22:15] Supreme Court's framework requiring firearm regulations to be consistent with the nation's historical [22:21] tradition of regulation. Virginia lawmakers have also pursued policies imposing affirmative legal duties on [22:28] firearm owners. Secure storage legislation would require individuals to store firearms in a manner [22:35] that prevents access by others. And while the goal of preventing unauthorized access is widely shared, [22:41] such mandates must be carefully evaluated to ensure they do not unduly burden the core right of self-defense within the [22:48] home, long recognized as a central component of the Second Amendment, as noted, for example, in the Heller [22:55] decision. Further, the Commonwealth is expanding its use of red flag laws. These laws allow for temporary removal of [23:04] firearms from individuals deemed to pose a risk. Although courts have generally upheld the concept, expansion [23:12] regulations to these laws, particularly those affecting evidentiary standards, duration, or who may initiate [23:19] proceedings, raise due process concerns that deserve careful scrutiny. I fully expect to see the 2026 [23:28] expansions of these laws weaponized to punish gun owners for political purposes completely unrelated to gun safety. [23:37] Finally, the Commonwealth has moved toward allowing civil liability actions against firearm manufacturers and [23:43] distributors. Their approach seeks to navigate around existing federal protections in an effort to destroy this [23:51] industry through litigation. Taken together, these measures demonstrate a broader trend to transform firearm [23:59] policy from a framework focused primarily on prohibited persons and background checks into one that [24:05] increasingly regulates categories of arms, locations of carry, methods of storage, and the broader ecosystem of [24:13] lawful commerce, all in an effort to cut into the right of law-abiding gun owners and potential gun owners, [24:21] and in many respects to attempt to turn such citizens into lawbreakers of bureaucratic restrictions in order to [24:28] take their guns away or deter them from buying guns in the first place. In addition to obvious litigation, this [24:35] devolution also creates growing divergence among states leading to patchwork of laws that may complicate [24:42] compliance for ordinary citizens. And I would respectfully suggest that that is part of the point. [24:50] It is one way of attacking Second Amendment rights, as I noted, as a practical matter. One law carried over to [24:58] next year in the Virginia General Assembly is a double-digit tax rate on gun and ammunition purchases. [25:06] And 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 [25:15] it to be used as. And I expect to see that next year in my beloved Commonwealth. With that, I appreciate your time and [25:23] consideration and look forward to answering your questions. Thank you. Next up, we have Eric Pratt, who is the senior vice president for gun owners of America, where he has been employed since 1990. [25:35] Mr. Pratt, you are recognized for your opening statement. Thank you. Chairman Paul, ranking member, members of the committee, my name is Eric Pratt. I serve as senior vice president of gun owners of America and I represent more than two million Americans who believe the Second Amendment [25:53] is the amendment that protects all the others. 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 [26:03] that the 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. [26:22] And what they received was shocking. The ATF admitted to amassing nearly one billion records of American gun owners with 94 percent already in digital format. This is gun owner registration, pure and simple. It's a violation of federal law. And it's the reason the Senate should pass Senator Risch's bill, S. [26:45] 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. [27:02] Because, look, a database like this invites abuse, and we've already seen it happen. [27:10] Biden's ATF tried to ban up to 40 million pistols with stabilizing braces, [27:14] and these were firearms that had been legal during the Obama administration. [27:19] But by a stroke of the pen, Biden's ATF turned millions of Americans into felons overnight. [27:26] Thankfully, GOA took this to court, and we want protection for our members. [27:29] But had this rule remained in place, the ATF would have known where every single one of those firearms were [27:37] because of the 4473 forms on file. [27:41] And, look, this is not a registry in name only. [27:45] That is a confiscation list waiting to be used. [27:49] And history tells us where this leads. [27:51] The governments of Australia and Venezuela have carried out large-scale gun confiscations in recent years. [27:58] Canada is now threatening to use its registry to do door-to-door confiscations. [28:04] But this is not just an other-world problem. [28:08] It's already happened here. [28:10] In the 1960s, New York City began registering long guns with promises that they would never confiscate them. [28:18] Yet by 1991, they banned many of those guns. [28:21] And in 1992, a New York paper reported that police raided the home of a Staten Island man who refused to comply. [28:29] They seized his firearms and noted that spot checks were planned for other homes. [28:35] That's the problem with maintaining records of gun owners' names. [28:39] We're always just one step away from gun confiscation. [28:45] Now, turning to some other important federal issues, let me say this. [28:49] The Trump administration has achieved many pro-gun victories in several departments outside of the DOJ. [28:58] And I champion those in my written testimony and talk about them. [29:01] Sadly, the Department of Justice has continued to fight us in court at almost every turn, including on Biden's pistol brace ban, [29:12] his engaged in the business rule, and the frame and receiver rule, which registers every gun sold after 2002. [29:19] The fact that Republicans, a Republican DOJ, is still defending Biden-era gun rules, in whole or in part, should tell us everything. [29:31] That's why Congress must repeal every federal infringement and finish the job by defunding, dismantling, and abolishing the ATF. [29:42] After all, the Second Amendment is not about hunting. [29:46] It's not about sport. [29:47] It's ultimately about preserving freedom. [29:50] But right now, our rights are under attack by databases, by bureaucrats, and by government attorneys [29:57] who too often would rather defend unconstitutional laws than the Constitution itself. [30:04] And by the way, just a word for the wise for Republicans on the committee and in the rest of the Congress. [30:10] These problems need to be fixed immediately if you hope to win the gun vote [30:15] in the next, in the midterms. [30:18] Because gun owners, as you know, are very politically active. [30:22] And every time the DOJ attempts to moot our cases, [30:25] or continues to enforce a Biden-era policy, [30:30] gun owners become less excited to vote. [30:33] Thank you, and I look forward to answering your questions. [30:35] Thank you. [30:37] Our next witness is Dudley Brown, who is the CEO of the National Association for Gun Rights, [30:43] where he has grown the group from a small grassroots organization [30:46] to the nation's second largest gun rights group. [30:49] Mr. Brown, you are recognized for your testimony. [30:53] Thank you, Mr. Chairman, ranking member, members of the committee. [30:56] My name is Dudley Brown. [30:58] I live in northern Colorado. [30:59] I'm the president of the National Association for Gun Rights, [31:02] and it's been my privilege to represent gun owners for 33 years now. [31:06] But a few months ago, a man was shot and killed at a protest in Minnesota. [31:11] Now, I'm not here to litigate Alex Peretti's actions, [31:15] whether the shooting was legally justified, [31:17] or to endorse the politics of the protest he attended. [31:21] I suspect he and I would have agreed on very little. [31:24] My concern is what the current administration said afterward. [31:29] In those 33 years representing gun owners in state legislatures and the federal government, [31:34] what is the main tool I've relied on to preserve firearms freedoms? [31:39] Easy, First Amendment. [31:42] Today, I find it prudent to speak on that intersection [31:44] between the First and Second Amendments. [31:46] And the reason is simple. [31:47] We as a nation have never seen these rights as wholly separate. [31:51] The First Amendment is how free people speak to power. [31:55] Americans have shown since the founding, [31:58] they will tolerate being governed, but not tolerate being ruled. [32:03] That is the arrangement that makes this country different from every other on earth. [32:08] And it's precisely why an attack on the right to bear arms [32:11] at a lawful public assembly is not a Second Amendment problem alone. [32:15] It is an attack on the entire architecture of American liberty. [32:21] Now, before I go further, let me disavow the notion that this is a bipartisan issue. [32:26] Regardless of the drastic changes of party control [32:29] of the White House or the two legislative chambers, [32:31] the one constant is that all those in power must be reminded [32:36] that a civil right is in place to protect all the people, [32:39] regardless of their politics, their race, or their creed. [32:43] I mean, consider what was actually said by officials from the administration [32:47] in the wake of that shooting. [32:49] The president of the United States said, [32:52] you can't have guns. [32:54] You can't walk in with guns. [32:57] The FBI director remarked, [33:00] you simply cannot bring a firearm to a protest. [33:04] And the former secretary of Homeland Security said, [33:06] quotes, [33:07] I don't know of any peaceful protester that shows up [33:10] with a gun and ammunition rather than a sign. [33:14] Now, that last statement is most revealing. [33:18] Former Secretary Noem was not citing law. [33:20] She was kind of declaring a worldview [33:22] that carrying a firearm is inherently incompatible [33:26] with peaceful assembly. [33:28] I think it's a worldview the founders would not have recognized. [33:31] Just before the Second Amendment was ratified, [33:34] six of 13 colonies did not merely permit citizens [33:38] to carry firearms to public assemblies. [33:41] They actually required it. [33:42] The generation that wrote, [33:45] the right of the people peaceably to assemble [33:48] looked at an armed citizen in a crowd [33:50] and did not see a threat to the peace. [33:52] They saw its guarantee. [33:55] The argument being made implicitly [33:57] is that you may have a Second Amendment right [34:00] and a First Amendment right, [34:02] but not both at once. [34:04] Choose one. [34:05] If you choose wrong, [34:06] don't be surprised if federal agents [34:08] unceremoniously snatch one of those [34:10] or both of those rights from you. [34:12] Now, several states today [34:14] forbid the carry of firearms [34:16] at public demonstrations. [34:18] Those laws deserve scrutiny [34:20] not only on a constitutional [34:21] but also on a historical grounds. [34:24] Their roots trace directly to Jim Crow laws. [34:28] A law conceived to control people [34:30] does not become legitimate [34:31] simply because time has passed [34:34] and the target has changed. [34:36] The states that enacted these laws [34:38] were not concerned with public peace [34:40] but with public control. [34:43] Each party has the same capacity [34:45] for authoritarianism [34:47] as the other side [34:48] when it serves the short-term interest. [34:51] So I will ask the members of this room directly, [34:53] is this the precedent we intend to set? [34:56] That officials can decide after the fact [34:58] that a citizen had no right to carry [35:01] because the administration disliked his politics? [35:03] That is not a legal conclusion. [35:07] That's a rationalization. [35:09] There is no textual, historical, [35:11] or traditional basis for the proposition [35:13] that Americans must choose [35:14] between their First and Second Amendment rights. [35:16] You do not forfeit one by exercising the other. [35:19] These rights are not in competition. [35:21] They are the same right expressed twice. [35:24] An armed people is a people [35:26] whose assembly the government must take seriously. [35:29] A disarmed people protest at the government's pleasure. [35:31] The Second Amendment does not exist in isolation. [35:35] It exists to ensure all the others remain meaningful. [35:38] The founders understood that. [35:40] The statements made by this administration [35:42] suggest they do not understand it. [35:45] The members of this committee have the standing, [35:47] the authority, and the obligation to say so. [35:49] I hope they will find the courage to use it. [35:52] So on behalf of the millions of members [35:54] of my organization who take this matter very seriously, [35:57] let me thank you for your time. [36:03] Thank you. [36:03] Senator Peters will introduce the next guest. [36:05] Thank you, Mr. Chairman. [36:06] Our next witness is Professor Stephen Vladeck, [36:10] the Agnes William Sesquicentennial Professor [36:13] of Federal Courts at the Georgetown University Law Center. [36:17] Professor Vladeck is a nationally renowned expert [36:20] on the Supreme Court, Federal Courts, [36:22] National Security Law, and Military Justice. [36:25] He is also a highly recognized appellate advocate, [36:27] having argued before the Supreme Court, [36:29] Federal Civilian Courts, and Military Courts. [36:33] Professor Vladeck is the recipient of numerous awards [36:35] for his legal scholarship, [36:37] including the 2024 University of Texas President's [36:41] Research Impact Award, [36:42] and a selection by the order of Coff [36:44] to serve as its distinguished visiting professor [36:46] for 2025. [36:48] Professor, thank you for taking the time to be here today. [36:51] Thank you very much, ranking member Peters, [36:52] Chairman Paul, distinguished members of the committee, [36:54] thank you for the invitation to testify today. [36:57] Of all the conversations that we can [36:58] and should be having about the U.S. Constitution, [37:01] this committee's focus on the Second Amendment [37:03] strikes me as singularly misplaced. [37:06] Every day, we see headlines documenting [37:07] other unconstitutional behaviors by this administration, [37:11] from arrogating Congress's appropriations power, [37:14] to claiming the authority to enter private homes [37:16] without judicial warrants, [37:17] to suppressing and chilling the constitutionally protected speech [37:20] of law firms, universities, and political critics, [37:23] to blowing up suspected drug boats, [37:26] invading Venezuela, [37:27] and going to war against Iran [37:29] without even a scintilla of congressional authorization, [37:32] which led one commentator to post on social media [37:34] that, quote, [37:35] it's a good thing Congress isn't alive to see this, unquote. [37:39] Indeed, all of this unconstitutional behavior [37:41] is coming not in the face of a hostile Congress, [37:43] but without any attempt to even obtain statutory authorization, [37:48] even though the president's party [37:49] also controls both legislative chambers, [37:52] including this committee. [37:54] Instead of making the case [37:55] for why Congress should loosen or repeal [37:57] the various mandates [37:58] that the executive branch is regularly violating, [38:01] or should authorize the unilateral conduct [38:03] in which the executive branch is regularly engaging, [38:07] this administration is effectively thumbing its nose [38:10] at our elected representatives, [38:12] that is, at you. [38:13] And in response, [38:15] this committee chose to hold this hearing. [38:17] It seems to me, Mr. Chairman, [38:18] that it would be far more useful for this committee [38:20] to discuss the structural problems [38:22] that have been highlighted [38:24] by this administration's disdain for the Constitution, [38:26] and two in particular stand out. [38:29] First, there's a large swath [38:30] of unconstitutional behavior [38:32] by the federal government [38:33] that has proven to be effectively insulated [38:35] from meaningful judicial review. [38:37] On the individual right side, [38:39] a combination of rulings by the Supreme Court [38:42] and legislation from Congress [38:43] has all but foreclosed damages suits [38:46] by Americans whose constitutional rights [38:49] have been violated. [38:50] That lacuna comes at the particular expense [38:52] of First and Fourth Amendment claims, [38:55] since unlike the Second Amendment claims, [38:57] about which we've heard so much already this morning, [38:59] violations of those provisions [39:01] are typically fleeting. [39:02] And on the separation of power side, [39:04] the Supreme Court has likewise [39:05] made it effectively impossible [39:07] for litigants to challenge [39:09] the president's arrogation [39:10] of Congress's two most important powers, [39:14] its power of the purse [39:15] and its control of the war power. [39:17] Second, the political constraints [39:18] that have historically served [39:20] to rein in systemic unconstitutional behavior [39:22] by the executive branch [39:24] have also completely broken down. [39:26] Examples abound, [39:27] but an especially revealing one [39:29] is a statement by House Appropriations Committee Chairman [39:31] Tom Cole, [39:32] who suggested last year [39:34] that it was perfectly fine [39:35] for the president [39:36] to ignore congressional appropriations [39:38] because, in his words, not mine, [39:41] an appropriation, quote, [39:42] is not a law, unquote. [39:44] In fact, the Constitution requires [39:46] that appropriations be by law [39:49] entirely so that this branch [39:51] and not the president [39:52] will decide how the people's money [39:54] will and won't be spent. [39:56] Both of these problems [39:57] could be fixed quickly and easily [39:59] by a Congress that cared more [40:01] about the separation of powers [40:02] than the separation of parties. [40:04] For instance, [40:05] it would take a one-sentence statute [40:07] to ensure that everyone [40:08] whose constitutional rights [40:10] are violated by the federal government [40:11] can have their day in court. [40:13] And beyond new legislation, [40:14] Congress, including this committee, [40:16] has numerous means [40:17] to impose such accountability directly [40:19] through its oversight function, [40:21] its ability to exact concessions [40:23] out of the executive branch [40:25] in exchange for everything [40:26] from appropriations to appointments, [40:28] and, if necessary, [40:30] its impeachment power. [40:32] Finally, to whatever extent [40:34] members of this committee [40:35] may tell themselves [40:36] that they can just reclaim [40:37] these abandoned powers [40:38] the next time a Democrat [40:39] is president, [40:40] history and common sense [40:42] are both to the contrary. [40:44] The more time passes, [40:45] the harder these powers [40:46] will be to claw back. [40:48] In the interim, [40:49] the executive's lawlessness [40:50] and Congress's abdication [40:52] of responsibility [40:53] have combined [40:54] not just to produce [40:55] an unprecedented breakdown [40:57] in the separation of powers, [40:58] but a growing [40:59] and seemingly unending array [41:02] of deleterious impacts [41:03] on both everyday people [41:05] and at the risk of bringing [41:07] some of this back [41:08] to this committee's jurisdiction, [41:09] the long-term security [41:10] of our homeland. [41:12] If we're going to talk [41:12] about the Constitution, [41:14] we should talk about [41:14] why and how it is being [41:16] so systemically violated [41:17] by the current administration, [41:19] why and how Congress [41:20] is sitting idly by [41:21] while that happens, [41:23] why and how that attitude [41:24] is destructive [41:25] of our nation's [41:26] most fundamental ideals, [41:27] and why and how a Congress [41:28] that actually took [41:29] its constitutional responsibility [41:31] seriously should [41:32] and would respond. [41:33] As for the nominal topic [41:34] of today's hearing, [41:35] it seems to me that [41:36] at this moment in our history, [41:38] devoting resources [41:39] to the Second Amendment [41:39] is burying all of our heads [41:41] in the sand. [41:42] Even if we can't agree on much, [41:44] I hope we can all at least agree [41:45] that it shouldn't be the case [41:47] that the only way [41:48] to hold the federal government [41:49] accountable is to elect a new one. [41:52] Thank you for inviting me [41:52] to testify today, [41:53] and I look forward [41:54] to your questions. [41:57] Thank you. [41:58] We'll now proceed [41:59] to a round of questions, [42:01] and I'll start things off. [42:05] You know, I've been to, [42:06] I don't know, [42:07] thousands of rallies. [42:08] I've probably been the speaker [42:09] at thousands of rallies. [42:10] I've attended hundreds [42:11] and hundreds of rallies, [42:12] and every rally I go to, [42:14] someone is armed. [42:15] The people that are with me [42:16] are armed. [42:17] You know, my driver is armed. [42:19] And we do it for self-defense. [42:22] And I was also at the ball field [42:24] when 160 shots were fired [42:26] at me and others. [42:29] So I know what violence is like, [42:30] and I know how important [42:31] it is to have people there. [42:33] We had Capitol Hill police [42:34] there that day, [42:36] and they and the Alexandria police [42:39] saved many lives, you know. [42:41] Steve Scalise almost died. [42:42] Another young man was shot [42:44] under the arm, [42:45] bullet traveled around his ribcage, [42:46] came out the front of his chest, [42:48] and didn't get inside his ribcage, [42:50] and he survived. [42:51] But, you know, [42:52] I think that if we pass laws [42:54] like we're talking about in Virginia, [42:56] where maybe it's okay for me [42:59] to get protection, [43:00] but not for you [43:00] because you're a private citizen, [43:02] I just can't imagine, you know, [43:03] the hypocrisy of something like that. [43:05] We have very prominent people [43:07] in our society, [43:08] some of the richest people [43:09] in our society, [43:10] who all the time lobby [43:12] for gun control, [43:12] and they want less guns out there [43:14] and yet they'll have a phalanx [43:16] of eight to ten people with them [43:18] all armed [43:19] because they can afford that [43:20] and most of us can't. [43:22] So I was wondering, [43:23] Mr. Cuccinelli, [43:23] if you'd comment on the law [43:25] and the distinctions [43:25] that they're talking about [43:26] between that the government [43:28] could have security, [43:29] but a private CEO [43:30] or a private person [43:31] or even a bail bondsman, [43:33] not a rich person, [43:34] but somebody who does [43:35] a risky business [43:36] of repossessioning cars, [43:37] that somehow it would be illegal [43:39] for them to have a gun, [43:41] I can't imagine, you know, [43:43] a government official, yes, [43:44] and then the bail bondsman [43:45] or the repossessor of cars, no? [43:47] Well, I'll take the kind of [43:50] highest profile law [43:51] they're passing, [43:53] the so-called assault weapons ban, [43:55] exempts government officials [43:58] and employees, [44:00] thereby acknowledging the utility [44:02] of the guns in question, [44:03] which gets to the Supreme Court's judge [44:06] of historical utility [44:08] of a particular weapon, [44:10] the law itself acknowledges that [44:13] and yet denies it [44:14] to ordinary citizens [44:16] but allows their own employees [44:20] to carry. [44:22] And to your two examples [44:23] closer along the lines [44:24] of what you described, [44:26] there have been several amendments. [44:29] The governor, [44:30] the way Virginia's process worked, [44:32] General Assembly is now out of session. [44:34] The governor can propose amendments [44:36] back to the General Assembly [44:38] and Governor Spanberger [44:39] has done that this week [44:41] and the General Assembly [44:42] will be back next week [44:44] to either accept or reject [44:45] those amendments [44:45] and then vote on the original bill [44:47] if they reject the amendments. [44:49] Several of those bills [44:51] restrict exactly the kind [44:53] of carrying rights [44:54] and location [44:55] that you're describing. [44:57] In Heller, [44:58] Justice Scalia [45:00] spoke about sensitive places [45:02] and allowed room for regulation, [45:07] meaning the banning of guns, [45:09] in, for instance, [45:10] school buildings [45:11] was an example that he used. [45:14] But what the Virginia General Assembly [45:17] is now proposing [45:18] goes far beyond that. [45:21] So if you're a person [45:23] whose business [45:24] or whose safety [45:27] involves being armed [45:29] or you would choose [45:30] to protect yourself that way, [45:32] you are now going in Virginia [45:34] to be restricted [45:36] depending on how litigation ends up. [45:38] I'm sure all this will be litigated. [45:40] I hope to participate in that. [45:42] But those restrictions [45:45] are now very real. [45:46] Again, to my opening comment [45:48] about the practical ability [45:51] to utilize and exercise [45:53] your right to self-protection. [45:56] As we all know here, [45:58] this isn't granted by government. [46:01] James Madison didn't give us this right. [46:05] The Bill of Rights [46:05] was put in place [46:06] to preserve what were understood [46:08] to be already existing rights [46:11] in the case of self-defense, [46:13] both of self and society. [46:16] So, unfortunately, [46:17] that's the direction [46:18] that the current government [46:20] in my home state [46:21] is trying to go. [46:22] I hope that we will be able [46:24] to reintroduce them [46:25] to the concepts of George Mason [46:28] and Patrick Henry [46:29] and James Madison. [46:31] I know they've driven [46:33] by their houses [46:34] while they've been driving [46:35] around Virginia. [46:36] Since we have that history there, [46:38] nonetheless, [46:39] it's being ignored [46:40] and now abused. [46:43] And it's going to, unfortunately, [46:45] have to be fought out [46:46] in the courts to protect it. [46:48] Senator Peters? [46:51] Thank you, Mr. Chairman. [46:53] You know, [46:53] the Constitution guarantees [46:55] each of us certain liberties, [46:57] including the freedom [46:58] to speak our mind, [46:59] the practice, [47:00] our religion, [47:02] receive due process, [47:04] and the right to bear arms, [47:06] as we've been talking [47:07] about here today. [47:08] Our framers knew [47:10] that the freedoms protected [47:11] under our Constitution, [47:12] however, [47:13] would be at risk [47:14] if any one branch [47:15] of government [47:16] was allowed to go unchecked. [47:19] They didn't trust [47:20] anybody in government. [47:21] Figured you had to make sure [47:22] there were checks and balances. [47:24] Ronald Reagan, I think, [47:25] explain the importance [47:26] of this system [47:27] of checks and balances [47:28] very well, [47:28] and I'll just quote Ronald Reagan. [47:30] The genius of our [47:31] Constitutional system [47:32] is its recognition [47:33] that no one branch [47:35] of government alone [47:36] could be relied on [47:37] to preserve our freedoms. [47:39] The great safeguard [47:40] of our liberty [47:41] is the totality [47:42] of the Constitutional system [47:44] with no one part [47:46] getting the upper hand. [47:49] Professor Vladek, [47:50] as you noted in your testimony, [47:52] President Trump has gone to war [47:54] with Iran without congressional [47:59] approval as required [48:00] in the Constitution, [48:01] usurped Congress's [48:02] appropriations powers [48:03] under article one, [48:04] powers are being usurped, [48:06] and turned federal agencies [48:07] against American citizens, [48:09] all, well, unfortunately, [48:10] most of my Republican [48:11] colleagues have either [48:12] cheered him on [48:13] or they just kind of look [48:14] the other way. [48:15] So my question for you, sir, [48:17] is Congress currently [48:18] functioning as a co-equal [48:19] branch of government, [48:20] as outlined in the [48:21] Constitution, and if not, [48:22] what is the danger [48:24] that we're facing right now? [48:25] What should the American [48:26] people be concerned about? [48:27] I mean, the short answer, [48:28] of course, is no. [48:29] And I think the danger is [48:30] both a short-term danger, [48:31] senator, and a long-term [48:32] danger. [48:33] And just briefly, [48:34] the short-term danger [48:35] is that without Congress, [48:36] without the president [48:37] having to look over his [48:38] shoulder, there is nothing [48:39] to stop him from engaging [48:40] in ever more aggressive, [48:41] usurpation of appropriation, [48:42] spending money he doesn't [48:43] have, not spending money [48:44] he's supposed to, [48:45] violating individual rights [48:46] in context in which [48:47] there's no way to [48:48] challenge that in court, [48:49] and going on ever more [48:52] misguided, misbegotten [48:53] military operations, [48:54] all to the detriment of [48:55] our national security, [48:56] of our economy, of our [48:57] rights. [48:58] Senator, in the long-term, [48:59] this destabilizes the [49:00] ability of Congress to ever [49:02] exercise those powers [49:03] again. [49:04] We have a Supreme Court that [49:05] has interpreted the [49:06] separation of powers by [49:07] reference to what Justice [49:08] Frankfurter called [49:09] historical gloss. [49:10] If the gloss of the [49:12] 2020s is that the [49:13] president can do whatever [49:14] he wants as long as the [49:15] majority of Congress isn't [49:16] going to stop him, that is [49:17] a gloss that can be deployed [49:19] by future presidents. [49:20] Senator, with whom you and [49:21] I might agree more, to do [49:22] plenty of things that I [49:23] think would be deeply [49:24] problematic for our rule of [49:25] law society. [49:26] Well, you mentioned the [49:27] courts as a possible [49:29] check. [49:30] Obviously, Congress is a [49:31] major check, and I would [49:32] argue that our founders [49:33] always thought Congress was [49:34] the preeminent of the three [49:35] branches. [49:36] We are article one. [49:37] But the courts are [49:38] important, and unfortunately [49:39] we've seen this [49:40] administration, based on [49:42] recent actions, believes [49:43] that they are above the [49:44] law, including court [49:45] decisions. [49:46] Time and time again, judges [49:47] have found that the [49:48] administration has violated [49:49] court orders. [49:50] One federal judge found that [49:51] the department of [49:52] homeland security had, [49:53] quote, utterly disregarded [49:55] the court's earlier order [49:56] and made, quote, no [49:58] attempt to offer any [49:59] justification for their [50:00] blatant lack of effort to [50:01] comply, thumbing their [50:02] nose at the court. [50:03] Another found that ICE [50:04] failed or refused to [50:05] provide information, ordered [50:06] by the court. [50:07] Another case found that [50:08] DOJ, quote, elected to [50:10] simply ignore the court [50:11] orders. [50:12] You know, I want to be [50:13] clear. [50:14] These are not liberal [50:15] activist judges, as [50:16] president trump and some [50:17] of my colleagues would [50:18] claim. [50:19] All of these quotes come [50:20] from judges that were [50:21] appointed by Donald Trump. [50:22] These are judges he [50:24] appointed who saw how [50:25] outrageous it was for [50:26] them to ignore these [50:27] orders. [50:28] So what does it mean for [50:29] Americans if there is not [50:30] a consistent [50:31] adherence to the rule of [50:32] law and some laws just [50:33] simply don't get [50:34] followed. [50:35] And some laws just [50:36] simply don't get [50:37] followed. [50:38] John Adams at the [50:40] founding said ours is a [50:41] government of law is not [50:42] of men. [50:43] A world in which the [50:44] executive branch doesn't [50:45] abide by court orders and [50:46] faces no repercussions in [50:47] Congress for violating [50:48] court orders is a world in [50:49] which that's not true. [50:50] And it's a world in which [50:51] the president can do what [50:52] he wants. [50:53] And senator, we may not [50:54] care. [50:55] Too many people may not care [50:56] about those cases because [50:57] those are immigration [50:58] detention cases. [50:59] But if the government puts [51:00] one of us in immigration [51:01] detention and says you're [51:02] not a U.S. citizen and [51:03] even if it's a mistake. [51:04] The only way to get out is [51:05] a government that's going to [51:06] comply with an adverse [51:07] court order. [51:08] That's the problem. [51:09] That's the slippery slope. [51:10] And it is very slippery. [51:11] And it's one that we're [51:12] falling down way too [51:13] quickly. [51:14] Thank you. [51:15] The fourth amendment [51:16] protects us from [51:17] unjustified invasions of [51:18] privacy by the [51:19] government. [51:21] However, this [51:22] administration has [51:23] basically discarded [51:24] decades-old privacy [51:25] protections to combine [51:26] and share American [51:27] and share American [51:28] rights. [51:29] That's the problem. [51:30] And it's one that we're [51:31] falling down way too [51:32] quickly. [51:33] It's tracking Americans' [51:34] location using data [51:35] brokers. [51:36] It's monitoring their [51:37] social media activity and [51:38] potentially even using a [51:39] spyware to break into the [51:40] phones of Americans. [51:41] It's very concerned about [51:42] these activities. [51:43] So my question for you sir [51:44] or professor Ladek is at [51:45] the time when so many [51:46] people choose to share [51:47] all kinds of details [51:48] online, why should we be [51:49] concerned about information [51:50] the government is [51:51] collecting right now and [51:52] how might it be [51:53] they need to be [51:54] responsible for the [51:55] government. [51:56] The government is [51:57] collecting right now and [51:58] how might it be [51:59] they need to be [52:00] these tools against us. [52:01] I think the concern [52:03] center has been driven [52:05] home by what we've seen [52:06] this administration do [52:07] which is retaliating [52:08] against people because of [52:09] for example what's in [52:10] their social media [52:11] profiles. [52:12] Denying visas to [52:13] non-citizens who have [52:14] done nothing wrong other [52:15] than perhaps express [52:16] sympathy for [52:17] Palestinians. [52:18] That is not supposed to [52:19] be how the government [52:20] uses our data and there is [52:21] a rich tradition center as [52:22] you well know of this [52:23] congress actually stepping in [52:24] to protect Americans [52:25] privacy rights even before [52:26] the courts have had a [52:27] chance to do so. [52:28] The wiretap act was a [52:29] response to the [52:30] Supreme Court's refusal to [52:31] apply the fourth [52:32] amendment to wiretaps. [52:33] That's the kinds of [52:34] conversations we should be [52:35] having about what's [52:36] happening in our [52:37] government right now not [52:38] the possibility that some [52:39] state laws might be [52:40] subject to challenge in [52:41] court where those [52:42] challenges are deeply [52:43] available. [52:44] Senator Johnson. [52:45] I appreciate you calling [52:47] this hearing. [52:48] It's a very interesting [52:49] one. [52:50] I think it's an important [52:53] debate. [52:54] I always like hearings to [52:55] kind of stay focused on [52:56] the actual title of the [52:57] hearing which is the [52:58] second amendment. [52:59] You can go into other [53:00] areas that's fine. [53:01] But you know Mr. Pratt you [53:02] seem to not be [53:03] particularly happy with [53:04] this administration's [53:05] reaction to some of [53:06] these things. [53:07] Same with Mr. Brown. [53:08] I'm not disagree with [53:09] Mr. Brown. [53:10] you at all. [53:11] Mr. Pratt you said that [53:12] Congress has to act. [53:13] The problem is we have [53:15] those of us who support [53:16] the second amendment. [53:17] The opposition party [53:18] basically wants to [53:19] disarm Americans. [53:20] They say they won't but [53:21] that's the direction. [53:22] I think it's pretty [53:23] obvious in terms of all [53:24] these gun laws and [53:25] stuff. [53:26] So I guess I would just [53:27] ask for the record. [53:28] I would like you to list [53:29] the things that the [53:30] executive branch can do [53:31] to undo something. [53:32] I would like you to [53:33] list the things that the [53:34] executive branch can do [53:36] to undo something. [53:37] I would like you to [53:38] list the things that the [53:39] executive branch can do to [53:40] undo some of the harm. [53:41] Some of the violations. [53:42] I would say that our [53:44] constitutional right to [53:45] keep and bear arms. [53:46] And particularly that [53:47] confiscation list. [53:49] Which I think is pretty [53:50] much what it's going to be. [53:51] I mean why can't they just [53:52] deep stick that. [53:53] I mean is that something [53:54] this administration could [53:55] do and should we be [53:56] putting a lot of pressure [53:57] on President Trump and [53:58] members of his [53:59] administration to do just [54:00] that. [54:01] Well thank you for the [54:02] question Senator Johnson. [54:04] Gun owners of [54:06] America has been working [54:07] with the administration. [54:08] to do just that with the [54:09] registry. [54:10] They are coming out with a [54:11] new rule because under [54:12] Biden they made those [54:13] records permanent. [54:14] So they'll go through [54:15] the administration [54:17] and that will happen. [54:18] I'm sorry? [54:19] They'll go through the [54:20] administrative procedures [54:21] act and you believe that [54:22] will happen. [54:23] And so we are urging them. [54:24] You know a shall not be [54:25] infringed view would mean the [54:26] ATF retains those 44 73s for [54:28] zero years. [54:29] Not 10, not 20, 30 or [54:30] indefinitely but zero. [54:31] A little bit of time. [54:32] Ms. Cuccinelli I think [54:33] you're a pretty observant [54:35] follower of the Supreme [54:36] Court. [54:37] A lot of President Trump's [54:38] actions have been [54:39] challenged in court. [54:40] Correct? [54:41] Yeah. [54:42] And the minority [54:44] witnesses pointed those [54:45] out. [54:46] But President Trump has [54:47] actually got a pretty [54:48] good record before the [54:49] Supreme Court. [54:50] Correct? [54:51] You've been [54:52] challenged in court. [54:53] Correct? [54:54] Yeah. [54:55] He does have a pretty good [54:57] record before the Supreme [54:58] Court. [54:59] He does have a pretty good [55:00] record before the Supreme [55:01] Court. [55:02] He has a better record [55:03] before the Supreme Court [55:04] than many of the lower [55:05] courts. [55:06] When you look at injunctions [55:07] for example. [55:08] Over 90% of them came in [55:09] five districts. [55:10] That's probably not a [55:11] coincidence. [55:12] So there's been a little [55:13] venue shopping. [55:14] There has been [55:15] significant venue [55:16] shopping. [55:17] Yes. [55:18] Professor Vladek, I [55:19] assume that you're not a [55:20] Trump supporter. [55:21] I mean it doesn't sound [55:22] like you're particularly an [55:24] amored with this [55:26] administration. [55:27] I'm not enamored with any [55:28] administration, senator, [55:29] that doesn't commit to [55:30] following the [55:31] constitution. [55:32] Right. [55:33] You talked a lot about war [55:34] powers. [55:35] Has any president since the [55:36] War Powers Act been passed [55:39] accepted that as a [55:40] constitutional constraint on [55:41] that president? [55:42] I mean I think we've [55:43] seen. [55:44] Has anybody said that, has [55:45] any president not [55:46] acknowledged, admitted that [55:47] this is a constitutional [55:48] act? [55:49] I think we've seen [55:50] presidents follow it [55:51] including President [55:52] Carter. [55:53] President Obama [55:55] acknowledged this is [55:56] constitutional. [55:57] Has any Supreme Court [55:58] ruled on the [55:59] Constitutional War Powers [56:00] Act? [56:01] Well, no. [56:02] Because as I suggested in [56:03] my testimony the Supreme [56:04] Court has made it hard to [56:05] challenge this. [56:06] Did President Obama ever [56:07] get a congressional [56:08] authorization in his [56:09] military action against [56:10] Libya? [56:11] No, he did not. [56:12] Okay. [56:13] Did President Clinton ever [56:14] get congressional [56:15] authorization in his [56:16] military action against in [56:17] Kosovo and Serbia? [56:18] So I think that one's a [56:19] tougher question because it [56:20] depends upon how you [56:21] have the power of the [56:23] president. [56:24] He did not get [56:25] authorization. [56:26] He did not get [56:27] authorization. [56:28] Congress did not declare [56:29] war. [56:30] Congress did not pass [56:31] authorization. [56:32] I agree. [56:33] And senator, I've been [56:34] critical of uses of the [56:35] war powers by presidents of [56:36] both parties. [56:37] You have blinders on. [56:38] No, I think presidents of [56:39] both parties. [56:40] You have blinders on. [56:41] Let me ask another [56:42] question. [56:44] I thought it was very [56:45] interesting in [56:46] representative Massey's [56:47] testimony. [56:48] The regime after regime [56:49] after regime that he [56:50] was on control. [56:51] Okay? [56:52] I thought it was [56:53] interesting because he was [56:54] leading right up to, but [56:55] he didn't mention, the [56:57] ayatollahs. [57:00] Professor Vladeck, you're [57:02] part of academia who I just [57:03] think I'm not sure about [57:07] Georgetown law, but it was [57:09] shocking how many protests [57:10] in favor of Hamas occurred [57:11] on college campuses. [57:17] That's because we have [57:19] leftist professors poising [57:22] I don't think it would be a [57:24] good thing if the ayatollahs were [57:26] on the desk in history, that [57:28] they no longer represent a [57:30] threat to the leftist [57:32] professors poising the minds of [57:34] our young people, but I hope [57:38] our young people are watching. [57:40] I'm assuming you don't support [57:42] the ayatollahs in Iran. [57:44] Do you think there's anything [57:46] less than a brutal, tyrannical [57:48] threat and menace to world [57:50] peace? [57:52] I don't think that's the [57:54] point I want to make is they [57:56] were a menace, they are an [57:58] existential threat. [58:00] They get a nuclear weapon, [58:02] they've got missile technology. [58:04] And so law doesn't matter? [58:06] Park a barge off the U.S., [58:08] lava missile up, explode a [58:10] nuclear weapon, wipe out our [58:12] electrical grid. [58:14] That's an existential threat. [58:16] We had to act before we [58:18] couldn't act. [58:20] But the whole thing that [58:22] was in acting, the hope is still [58:24] there, that if we weaken the [58:26] regime, the Iranian people can [58:29] take control, regain their [58:31] freedom. [58:33] Why can't they? [58:35] Because they've been disarmed. [58:37] Getting right back to the [58:38] purpose of this hearing. [58:39] Because the Iranian people have [58:40] been disarmed by the brutal, [58:41] tyrannical regime within Iran. [58:43] When are we going to finally [58:45] learn that lesson? [58:47] Thank you, Mr. Chairman. [58:49] Thank you. [58:50] And we'll do another round if [58:51] anybody has any questions. [58:53] And I'll start us off on that. [58:57] I open by talking about that. [58:58] I've been to a lot of rallies [58:59] with guns. [59:00] I've never seen anybody commit [59:01] violence. [59:02] And that's not why I support the [59:03] right to have a gun at a rally. [59:04] The right is separate of [59:05] whether the practicalities are [59:07] supportive of it. [59:08] It's something that precedes [59:10] government. [59:11] It's a natural right. [59:12] The right of self-defense. [59:14] But I would be interested, Mr. [59:15] Brown, if you know of any [59:16] statistics looking at legal gun [59:20] owners and whether they commit [59:21] crimes, how frequently compared [59:23] to the criminal population, etc. [59:26] Thank you, Senator. [59:28] The estimates are right now that [59:30] there are somewhere around 22 [59:32] million concealed handgun [59:34] permits issued to Americans. [59:36] There are, however, now as you [59:40] mentioned, 29 states that allow [59:42] permitless carry. [59:44] And so the estimates are roughly [59:47] that 16 million people carry on a [59:51] regular basis in America. [59:54] And that they commit crimes at [59:56] one-third the rate of other [1:00:00] Americans, people who don't [1:00:01] carry. [1:00:02] And, of course, those are broad [1:00:04] general estimates. [1:00:05] But we know in states with [1:00:08] permits that those people are [1:00:10] arrested at a much lower rate, [1:00:12] not just for gun crimes like, for [1:00:14] instance, carrying in a, quote, [1:00:16] illegal place or a sitting duck [1:00:17] zone, as Congressman Massey [1:00:19] called them. [1:00:21] But they're also, on a regular [1:00:23] basis, not arrested for other [1:00:28] means like assault. [1:00:30] And I think we can surmise the [1:00:31] reason. [1:00:32] I know, for me, I carry virtually [1:00:33] every waking moment. [1:00:34] And that I can. [1:00:35] And it's because there's an added [1:00:37] level of seriousness when you do [1:00:39] carry a firearm. [1:00:40] And a responsibility. [1:00:41] And so, yeah, I think you just [1:00:43] avoid problems wherever you can. [1:00:44] Same question, Mr. Pratt. [1:00:45] Yeah, the statistics show that [1:00:47] concealed carry permit holders, [1:00:49] for example, are commit crimes at a [1:01:05] lower rate than the police do. [1:01:07] And interestingly enough, you [1:01:10] have more private citizens who [1:01:13] stop over 50 percent of mass [1:01:15] shootings in non-gun free zones [1:01:17] are stopped by law abiding [1:01:19] and that's actually a greater [1:01:20] percentage than police. [1:01:22] And that's because if you're in [1:01:24] danger and you're in a gun free [1:01:25] zone, the police are minutes [1:01:27] away. [1:01:28] But if you are able to protect [1:01:29] yourself, you're able to [1:01:30] immediately respond. [1:01:32] Yeah, and I think that's the [1:01:34] thing about people who don't own [1:01:36] guns and fear the sight of a gun [1:01:37] and the gun scares them, is that [1:01:41] people who own and carry guns are [1:01:43] some of the most responsible [1:01:45] people as far as safety, as far [1:01:47] as everything else. [1:01:48] And they don't brandish their [1:01:51] weapon. [1:01:52] They're carrying a weapon for [1:01:53] self-defense. [1:01:54] And that it does work. [1:01:56] On the idea of separation of [1:01:58] powers, some of the discussion is [1:01:59] the implication that this is a [1:02:02] one-sided thing, that somehow [1:02:04] this is Republicans are terrible, [1:02:06] Trump is terrible, but maybe [1:02:08] Democrats were somehow good. [1:02:10] I would say both parties have [1:02:11] been abysmal at this. [1:02:12] And frankly, the court hadn't [1:02:14] been very good either. [1:02:15] And so one of your colleagues, [1:02:19] Randy Barnett, goes back to [1:02:21] Lochner, and I'm with him on [1:02:22] that. [1:02:23] I'm a libertarian that thinks [1:02:24] Lochner was correctly decided. [1:02:25] But it's been opposed by most [1:02:27] on the left and many on the [1:02:29] right, frankly, for the last [1:02:30] 100 years. [1:02:31] The problem is, see, in Lochner, [1:02:33] the court did decide that they [1:02:34] were going to make assertive [1:02:36] decisions based on [1:02:38] constitutionality. [1:02:40] They basically decide in [1:02:41] Lochner that the right to [1:02:42] contract is a right and that [1:02:44] states can't infringe upon the [1:02:45] right to contract. [1:02:46] And that was a great direction [1:02:48] which has been reversed by a [1:02:49] hundred years. [1:02:50] But for a hundred years now or [1:02:51] more, the court really has [1:02:52] shown deference. [1:02:53] I won't mention the justice, [1:02:55] but I recently met one in a [1:02:56] casual situation. [1:02:58] And, you know, the discussion [1:03:00] was concerning, you know, not [1:03:02] no longer giving deference to [1:03:03] the administration, overturning [1:03:04] chevron, which I'm in favor [1:03:05] of. [1:03:06] But the question I had to the [1:03:07] justice was, well, you seem [1:03:08] pretty deferential. [1:03:09] Why wasn't there a discussion [1:03:10] of the first amendment in [1:03:11] the tick-tock case? [1:03:12] Why was it sloughed over for [1:03:13] national security? [1:03:14] Why was it sloughed over for [1:03:15] national security? [1:03:16] Well, the question I had to [1:03:18] the justice was, well, you [1:03:19] seem pretty deferential. [1:03:20] Why wasn't there a [1:03:21] discussion of the first [1:03:22] Congress? [1:03:23] Why was it sloughed over for [1:03:24] national security? [1:03:25] And the point that was made by [1:03:26] the justice was that, oh, well, [1:03:28] we still give deference to [1:03:29] Congress. [1:03:30] And when we've had questions of [1:03:34] separation of powers, for [1:03:35] example, some pretty explicit [1:03:37] things. [1:03:38] Taxes have to originate in the [1:03:39] house. [1:03:41] Tefra was a bill back in 1986. [1:03:43] Congressman took it there. [1:03:44] And the court basically will [1:03:45] do stuff like, oh, you don't [1:03:46] have standing. [1:03:47] And so they never really [1:03:48] decided it on it. [1:03:49] Recently, we had a really [1:03:51] big case on tariffs. [1:03:52] I agree with the court's [1:03:53] decision on the tariffs. [1:03:54] But they also made the [1:03:55] decision, I think, based on [1:03:56] Ashwander, that, oh, we're not [1:03:58] going to really decide on the [1:03:59] Constitution. [1:04:00] Heaven forbid we make a [1:04:01] constitutional decision. [1:04:02] We're going to decide it on [1:04:03] the statute. [1:04:04] And so I think, really, there's [1:04:05] some blame over there. [1:04:06] And there's certainly a lot of [1:04:07] blame in Congress. [1:04:08] But really, the blame is [1:04:09] absolutely bipartisan. [1:04:10] And people tend to switch [1:04:11] their positions. [1:04:12] People who were once or are now [1:04:15] very critical of the war power [1:04:17] under President Trump, which I [1:04:18] have been. [1:04:19] Many of them were very quiet when [1:04:21] President Obama was bombing [1:04:22] Libya. [1:04:23] And that was the point I think [1:04:24] Senator Johnson was making. [1:04:25] Is that, you know, the [1:04:27] consistency on this position [1:04:28] has been very, very partisan. [1:04:29] And I'll just finish with, I [1:04:31] guess, let's start out with [1:04:32] the situation. [1:04:33] And I'll just finish with, I [1:04:35] the court, with Lochner. [1:04:36] Decided correctly. [1:04:37] Is that part of the problem? [1:04:38] Not decided correctly. [1:04:39] And then with Ashwander. [1:04:40] Should Ashwander be binding [1:04:41] us and keeping us from the [1:04:42] court from making constitutional [1:04:44] judgment on what they call [1:04:45] political questions. [1:04:47] So, I mean, Mr. Chairman, I [1:04:48] agree with, I think, a lot [1:04:49] more of what you said than [1:04:50] you might expect. [1:04:51] I have been a consistent [1:04:52] critic of abuse of the war [1:04:53] power. [1:04:54] And so I think, I think, I [1:04:55] have been a consistent [1:04:56] critic of abuse of the war [1:04:57] power. [1:04:58] And so I think, I think, I [1:04:59] have been a consistent [1:05:00] critic of abuse of the war [1:05:01] power. [1:05:02] And so I think, I think, I [1:05:04] have been a consistent [1:05:05] of abuse of the war powers by [1:05:07] presence of both parties and [1:05:08] would have loved the chance to [1:05:09] actually explain that to [1:05:10] Senator Johnson. [1:05:11] I think the point, though, [1:05:12] that you're making, Mr. [1:05:13] Chairman, is that the [1:05:14] deference the court is [1:05:15] showing assumes a congress [1:05:16] that is exercising its [1:05:17] ordinary oversight and [1:05:18] accountability powers. [1:05:19] And I'm not here to blame [1:05:20] one party or the other, [1:05:22] Mr. Chairman. [1:05:23] My point is just that this [1:05:24] particular moment in [1:05:25] American history, we are [1:05:26] seeing in technicolor just [1:05:28] how significant the cost of [1:05:30] that abdication whenever it [1:05:31] started and whoever is to [1:05:32] blame are for the rights of [1:05:33] all Americans. [1:05:34] So here's my question. [1:05:35] I think you're right. [1:05:36] Congress is abdicating their [1:05:37] duty. [1:05:38] What about the court then? [1:05:39] Congress isn't doing their [1:05:40] duty. [1:05:41] Does the court have a duty? [1:05:43] And they, they try to, they [1:05:44] skate political questions and [1:05:45] they try to decide things on [1:05:47] non-constitutional, which [1:05:48] gets back to Lochner. [1:05:49] In Lochner they had a more [1:05:50] certain idea that if a state [1:05:51] is acting unconstitutionally, [1:05:52] if they're abridging the [1:05:53] right to contract, we will [1:05:54] overturn the state law. [1:05:55] And then they got away from [1:05:56] that. [1:05:57] And so really it is the [1:05:58] question. [1:05:59] of Lochner being correctly [1:06:00] decided or not correctly [1:06:01] decided. [1:06:02] And if the court, you want them [1:06:03] to act in separation of [1:06:04] powers issues like this, then [1:06:05] is Ashwander, should it be [1:06:06] binding as far as trying to go [1:06:09] to the least common [1:06:10] denominator instead of [1:06:11] deciding based on the [1:06:12] Constitution? [1:06:13] I mean, Mr. Chairman, I [1:06:15] think the Ashwander question [1:06:16] is a nuanced one and really [1:06:17] depends on exactly what [1:06:18] Congress has done and said. [1:06:19] And so, you know, a statute, [1:06:20] Mr. Chairman, that was [1:06:21] ambiguous. [1:06:22] You and I might both think [1:06:23] better to avoid the [1:06:24] question. [1:06:25] But where I think Congress has [1:06:26] clearly tried to rein in the [1:06:27] president and has clearly [1:06:28] tried to push back, the court [1:06:29] should be deciding on the [1:06:30] question. [1:06:31] And if I may, just very [1:06:32] briefly, I think we're [1:06:33] sure that the court should [1:06:34] be deciding on the [1:06:35] question. [1:06:36] And if I may, just very [1:06:37] briefly, I think we're [1:06:38] sure that the court should [1:06:39] be deciding on the [1:06:40] question. [1:06:41] Congress used to be much [1:06:43] more active in regulating [1:06:44] the courts. [1:06:45] And the Supreme Court in [1:06:46] particular. [1:06:47] And I think over the last [1:06:48] generation, we've seen that [1:06:49] fall away as well. [1:06:50] Senator Peters. [1:06:51] Thank you, Mr. Chairman. [1:06:52] I agree. [1:06:53] The chairman and I agree. [1:06:54] I mean, this has been an [1:06:55] issue with both parties over [1:06:56] time. [1:06:57] In my opening comments, it was [1:07:00] very clear that we have [1:07:03] seen that we have seen [1:07:04] that fall away as well. [1:07:06] Senator Peters. [1:07:07] Thank you, Mr. [1:07:08] Chairman. [1:07:09] I agree. [1:07:10] The chairman and I agree. [1:07:11] I mean, this has been an [1:07:12] issue with both parties over [1:07:13] time. [1:07:14] I agree with that. [1:07:15] I agree with that. [1:07:16] I agree with that. [1:07:17] I agree with that. [1:07:18] I agree with that. [1:07:19] I agree with that. [1:07:20] That was very clear that we [1:07:21] have seen Congress give [1:07:23] powers to the executive on a [1:07:24] continuous basis. [1:07:25] I think we could argue [1:07:26] whether or not it's [1:07:27] accelerating or not, which [1:07:28] was part of your point, [1:07:29] professor. [1:07:30] But to that point, with war [1:07:31] powers, I know, Mr. [1:07:32] Chairman, I would actually [1:07:33] like to hear your answer to [1:07:34] the question our colleague [1:07:35] asked about war powers. [1:07:36] We're actually interested in [1:07:37] learning about that, not [1:07:38] just giving a speech. [1:07:39] And I think the point I was [1:07:41] trying to make to Senator [1:07:42] Johnson is that I think [1:07:43] presidents of both parties [1:07:44] have abused the war powers. [1:07:45] And I don't think it's a [1:07:46] particularly Democratic or [1:07:47] Republican or conservative [1:07:48] or liberal phenomenon. [1:07:49] Presidents are going to use [1:07:50] the powers they have, [1:07:51] Senator. [1:07:52] And so I think part of the [1:07:53] problem is that we have [1:07:54] seen perhaps more aggressive [1:07:56] pushback when the president [1:07:57] was a Democrat, perhaps [1:07:58] because those were periods [1:07:59] when you had some [1:08:00] cross-party control. [1:08:01] And so, you know, we have [1:08:02] seen more aggressive [1:08:03] pushback when a different [1:08:04] party has controlled one or [1:08:05] both chambers of Congress [1:08:06] than when it's been the same [1:08:07] party. [1:08:08] And that's been true in both [1:08:09] directions. [1:08:10] It seems to me the result [1:08:11] should not be to say, you [1:08:12] know, so-and-so is a [1:08:13] hypocrite, but rather to say, [1:08:14] well, then let's fix the [1:08:15] problem, period, as [1:08:16] opposed to let's fix the [1:08:17] problem when someone else [1:08:18] is in charge. [1:08:19] Yeah, I think that's [1:08:20] right. [1:08:21] And the checks and [1:08:22] balances works. [1:08:23] Sometimes when you don't [1:08:24] have one control, one [1:08:25] party and all control, [1:08:26] based on the partisanship [1:08:27] and the partisanship and [1:08:28] the partisanship and [1:08:29] that we're seeing in the [1:08:31] country right now, [1:08:32] unfortunately. [1:08:33] Professor, you also [1:08:34] stated in your testimony [1:08:35] that the trump [1:08:36] administration has taken [1:08:37] sweeping actions to [1:08:38] undermine the first [1:08:39] amendment. [1:08:40] The chair of the federal [1:08:41] communications [1:08:42] commission threatened ABC [1:08:43] for airing a comedian [1:08:44] who criticized the [1:08:45] administration. [1:08:46] This administration has [1:08:47] also revoked the press [1:08:48] credentials of journalists [1:08:49] whose coverage [1:08:50] basically didn't like. [1:08:51] It targeted law firms, [1:08:52] universities, and [1:08:53] former government [1:08:54] officials because it [1:08:55] didn't like. [1:08:56] It targeted law firms, [1:08:57] universities and [1:08:58] government officials [1:09:00] because it didn't like [1:09:01] their protected speech. [1:09:02] And it's trying to use [1:09:03] federal grants now to [1:09:04] force organizations to [1:09:05] adopt the president's [1:09:07] political ideology with [1:09:08] federal money. [1:09:09] Could you talk about [1:09:10] congress's role in [1:09:11] addressing the scale of [1:09:12] the trump [1:09:13] administration's systemic [1:09:14] violations, [1:09:15] particularly of the [1:09:16] first amendment right [1:09:17] now? [1:09:18] It seems like there are [1:09:19] a couple of different [1:09:20] things that congress could [1:09:21] do and that prior [1:09:22] congresses have done. [1:09:23] I think the first is [1:09:24] more robust oversight. [1:09:25] Using for example, [1:09:26] nominations hearings, [1:09:27] oversight hearings using [1:09:29] budget hearings as [1:09:30] opportunities to ask the [1:09:31] administration what [1:09:32] exactly it's doing and [1:09:33] why. [1:09:34] I think there are ways in [1:09:35] which congress could [1:09:36] condition funding for some [1:09:37] of these agencies on not [1:09:38] engaging in those [1:09:39] behaviors. [1:09:40] It is not unconstitutional [1:09:41] for congress to [1:09:42] condition federal funds on [1:09:43] the administration [1:09:44] refusing to retaliate. [1:09:45] But also, senator, I [1:09:46] think congress could make [1:09:47] it easier for those who [1:09:48] are having their speech [1:09:49] chilled in these contexts to [1:09:50] sue directly. [1:09:51] Because I don't think it's [1:09:52] possible even for a well [1:09:53] meaning congress to actually [1:09:57] enforce every single [1:09:58] flashpoint between the [1:09:59] government and its [1:10:00] citizens. [1:10:01] That's why I think the [1:10:02] absence of a meaningful [1:10:03] remedy even for ephemeral [1:10:05] constitutional violations [1:10:06] is something that has been [1:10:07] exposed over and over again [1:10:08] as a structural flaw of our [1:10:09] current moment. [1:10:10] Professor, you also noted in [1:10:11] your testimony the [1:10:14] constitution grants congress, [1:10:15] not the president, the [1:10:16] power to decide how the [1:10:17] government spends taxpayer [1:10:18] money. [1:10:19] This power of the purse [1:10:20] allows us to basically [1:10:22] serve as a check on abuses [1:10:24] by the executive branch. [1:10:25] After two American citizens [1:10:26] were shot and killed by [1:10:28] DHS officers as a result of [1:10:29] the administration's [1:10:30] tactics, many of us tried [1:10:32] to use the congress's [1:10:34] spending power to ensure [1:10:35] reform as well as [1:10:36] accountability. [1:10:37] But when the president [1:10:38] of the administration [1:10:39] of the administration, [1:10:40] the administration of [1:10:41] the administration of [1:10:43] Congress and claims the [1:10:44] spending power for himself, [1:10:45] not congress, it leaves [1:10:46] congress basically with no [1:10:47] leverage and the [1:10:48] American people with [1:10:49] basically no [1:10:50] accountability. [1:10:51] So my question for you, [1:10:52] sir, is are you aware of [1:10:54] other instances in history [1:10:55] where the president has [1:10:56] violated congress's power [1:10:57] to appropriate funds and [1:10:58] congress basically did [1:11:00] absolutely nothing? [1:11:01] And what are the [1:11:02] consequences when the [1:11:03] administration ignores [1:11:04] Congress's [1:11:05] appropriation? [1:11:06] And what are the [1:11:08] consequences when the [1:11:09] administration ignores [1:11:10] Congress's appropriations [1:11:11] power as granted in [1:11:13] article one of the [1:11:14] constitution? [1:11:15] Senator, I'm not aware [1:11:16] of another example where [1:11:17] we saw this degree of [1:11:19] appropriations misbehavior [1:11:20] by the executive branch [1:11:21] and no congressional [1:11:22] reaction. [1:11:23] I think as you know, the [1:11:24] impoundment control act [1:11:25] itself was congress's [1:11:26] response to not [1:11:28] comparable but at least [1:11:29] loosely analogous [1:11:30] behavior by the Nixon [1:11:31] administration. [1:11:32] And congress responded by [1:11:33] I think quite [1:11:34] powerfully reclaiming its [1:11:35] power. [1:11:36] And indeed authorizing [1:11:37] senators. [1:11:38] Some of the behavior [1:11:39] president Nixon had [1:11:40] engaged in. [1:11:41] While prohibiting the [1:11:42] rest of it. [1:11:43] And it seems to me that [1:11:44] that is the point I would [1:11:45] have liked to have made to [1:11:46] senator Johnson. [1:11:47] Which is you can think the [1:11:48] president having this power [1:11:49] is a good thing or not. [1:11:51] The point is that congress [1:11:52] has to provide it. [1:11:53] And so it seems like what is [1:11:54] missing from this [1:11:55] conversation is the idea [1:11:56] that if we like what the [1:11:57] president is doing we [1:11:58] shouldn't worry about the [1:11:59] separation of powers. [1:12:00] Just to quote the Supreme [1:12:01] Court for a second. [1:12:02] It would be ironic if in the [1:12:03] name of national defense we [1:12:04] would sanction the [1:12:05] subversion of one of our [1:12:06] civil liberties that makes [1:12:07] defense of the nation [1:12:08] worthwhile. [1:12:09] Thank you. [1:12:10] Senator Holling. [1:12:11] Thank you very much [1:12:12] Mr. Chairman. [1:12:16] Thanks to all of the [1:12:17] witnesses for being here. [1:12:18] Mr. Pratt if I could just [1:12:19] start with you. [1:12:20] I want to ask you about [1:12:21] something that I think [1:12:22] deserves some answers. [1:12:23] In fact I've waited years [1:12:24] for a substantive response [1:12:25] on this. [1:12:26] Back in 2021 I sent a [1:12:27] letter to then [1:12:28] president Biden's [1:12:29] ATF. [1:12:30] asking about rule 2021 R05 [1:12:35] which is the rule that [1:12:36] requires gun dealers to keep [1:12:37] records on buyers [1:12:39] permanently. [1:12:40] They never gave me an [1:12:42] answer. [1:12:43] Thankfully we now have a new [1:12:44] administration but it's [1:12:46] often the case that old [1:12:47] rules live on and sort of [1:12:49] zombie like lifestyle [1:12:53] through bureaucratic [1:12:54] inertia. [1:12:55] How many do you know Mr. [1:12:57] Pratt how many Biden era [1:12:59] ATF rules are still either [1:13:00] on the board. [1:13:01] or continue to be enforced [1:13:02] that we ought to be [1:13:03] concerned about. [1:13:04] Thank you for the [1:13:05] question. [1:13:06] Unfortunately there's [1:13:07] several. [1:13:08] With the one you just [1:13:10] mentioned. [1:13:11] The DOJ even as of late [1:13:13] as of last week was saying [1:13:16] they intend to enforce the [1:13:17] Biden rule. [1:13:18] The same with the engaged in [1:13:19] the business rule. [1:13:20] Same with the pistol brace [1:13:21] rule. [1:13:22] We're fighting every single one [1:13:23] of those. [1:13:24] And you know I'm so glad you [1:13:25] took an interest in the [1:13:26] registry because GOA actually [1:13:28] FOIAed the ATF manual. [1:13:31] And you can search the make, [1:13:34] model, and serial number of [1:13:35] let's say every firearm made [1:13:37] by Smith and Wesson. [1:13:39] And so you could then use that [1:13:40] as a confiscation list to [1:13:41] know which ones were the [1:13:42] pistols with stabilizing [1:13:43] braces. [1:13:44] And when senator, not senator, [1:13:47] ATF director Steven Dettelbach [1:13:48] testified before the [1:13:49] Congress, he told the Senate [1:13:51] Judiciary Committee that they [1:13:53] actually pay extra money to [1:13:55] remove the search function on [1:13:57] the names. [1:13:58] And that was supposed to be [1:13:59] our big defense against a [1:14:01] confiscation list. [1:14:02] Our big defense against tyranny. [1:14:03] They're paying extra money. [1:14:04] What if they stop paying the [1:14:05] extra money? [1:14:07] What if they stop paying the [1:14:08] extra money? [1:14:09] What if they stop paying the [1:14:10] extra money? [1:14:11] Or what if they open up that [1:14:13] Adobe document in some other [1:14:14] type of document? [1:14:15] They would still be able to [1:14:16] search by name. [1:14:17] So the only answer that we [1:14:19] really have is to delete the [1:14:20] registry. [1:14:21] Speaking of registries, my [1:14:22] understanding is that [1:14:23] sitting right now in a [1:14:24] warehouse in West Virginia, [1:14:25] and you describe this in [1:14:27] your testimony, is roughly [1:14:29] one billion gun owner [1:14:30] records. [1:14:31] The only answer that we [1:14:32] really have is to delete the [1:14:33] registry. [1:14:34] 94% of them that are already [1:14:36] in digital format. [1:14:37] Yes. [1:14:38] Now, federal law is [1:14:39] supposed to prohibit a [1:14:40] national gun registry, but [1:14:41] I'm wondering, what would [1:14:43] you call that? [1:14:44] We call that a registry. [1:14:45] Looks like it to me, too. [1:14:46] I mean, let's just walk [1:14:47] through this. [1:14:48] If a future administration [1:14:49] that's hostile to second [1:14:50] amendment rights in this [1:14:51] country were to get its [1:14:52] hands on those records, [1:14:53] billion gun owners' names, [1:14:55] other information, contained [1:14:56] there, would be a [1:14:57] number of gun owners' names, [1:14:58] and other information [1:14:59] contained there, would be [1:15:00] a number of gun owners' [1:15:02] information contained there. [1:15:04] What do you think it might [1:15:05] be able to do with them? [1:15:06] Well, that's absolutely [1:15:07] the problem, is with any [1:15:08] gun ban that's passed, [1:15:09] they're able to search the [1:15:11] makes and models of those [1:15:12] guns, and if they stop [1:15:15] paying for the names [1:15:17] attached to them, they know [1:15:19] exactly who's not in [1:15:20] compliance with the law, [1:15:21] which, again, is something [1:15:23] that already happened in [1:15:24] New York City when they [1:15:26] registered guns in the [1:15:27] 60s, passed a ban in the [1:15:29] 90s, and then they did spot [1:15:31] checks on people that they [1:15:33] believed were not complying [1:15:34] with the law. [1:15:36] In 1967, correct? [1:15:37] New York required [1:15:38] registration of rifles, I [1:15:39] think it was, and [1:15:40] shotguns as well, and [1:15:41] promised then that it [1:15:42] wouldn't be used for [1:15:43] confiscation, but then in [1:15:44] fact, they were [1:15:45] confiscated, I think they [1:15:46] went door-to-door back in [1:15:47] the late 60s. [1:15:48] Mayor David Dinkins signed [1:15:49] the ban, and that's [1:15:50] exactly what they did. [1:15:51] Then in 1991, New York [1:15:53] City also banned another [1:15:54] class of weapons, and [1:15:56] officials used, as I [1:15:57] understand it, an [1:15:58] existing database to do [1:15:59] the same thing, to do [1:16:00] the same thing, to force [1:16:01] confiscation. [1:16:02] There's also, I suppose, [1:16:03] the example of our [1:16:05] Australian friends in [1:16:06] 1996, I think it was, [1:16:08] Australia passed the [1:16:09] National Firearms [1:16:10] Agreement, they called it, [1:16:11] which, as I understand it, [1:16:13] restricted gun ownership [1:16:14] and mandated the creation [1:16:15] of a firearm registry, and [1:16:16] then, lo and behold, they [1:16:17] went and used that to [1:16:18] enforce mandatory [1:16:19] buybacks. [1:16:20] I seem to recall more [1:16:21] than one Democratic [1:16:22] candidate for president [1:16:23] talking about mandatory [1:16:25] buybacks. [1:16:26] I mean, this is not a [1:16:27] far-fetched conspiracy [1:16:29] theory. [1:16:30] This is something that's [1:16:31] happened in our country, [1:16:32] it's happened in our [1:16:33] allies, nations, and you've [1:16:36] got members of the [1:16:37] opposition party who are [1:16:38] saying it's a great [1:16:39] model. [1:16:40] I mean, we should be [1:16:41] concerned about this, [1:16:42] shouldn't we? [1:16:43] We should be concerned [1:16:44] about it, and that's why [1:16:45] that registry cannot [1:16:46] continue to exist, [1:16:47] Senator. [1:16:48] What is the thing that [1:16:50] we've got to do, what's [1:16:51] the most urgent action we [1:16:52] need to take, Mr. Pratt, [1:16:53] to make sure this registry, [1:16:54] A, isn't abused, and B, is [1:16:56] eliminated so that it [1:16:58] cannot be used for [1:16:59] nefarious purposes, namely [1:17:00] the violation of the [1:17:01] constitutional rights in [1:17:02] the future? [1:17:03] Well, the No Registry [1:17:04] Rights Act by Cloud in the [1:17:05] House and Rich in the [1:17:06] Senate would delete that [1:17:08] registry. [1:17:09] So if Congress would take [1:17:10] that up and send it to the [1:17:11] president, that would be [1:17:13] fantastic. [1:17:14] I hope we'll do that [1:17:15] post-taste. [1:17:16] Thank you very much for [1:17:17] your testimony. [1:17:18] Thank you, Mr. Chairman. [1:17:20] I think this is a good [1:17:21] discussion, and furthering on [1:17:22] this, I would just like to [1:17:23] talk a little bit about [1:17:25] that. [1:17:26] You know, we've been [1:17:27] requesting information [1:17:28] also from the ATF for [1:17:29] quite a while. [1:17:30] We sent a letter in April [1:17:31] last year requesting some [1:17:32] of the same information [1:17:33] that you FOIA'd, and we've [1:17:34] got no response and no [1:17:35] documents, and we've [1:17:36] followed up. [1:17:37] So we are going to pursue [1:17:38] through the committee the [1:17:39] process of subpoenaing [1:17:40] that information. [1:17:41] It'll be in consultation [1:17:42] with the minority, but if [1:17:43] you have an interest in [1:17:44] that, if you'll work with [1:17:45] our office, if there's [1:17:46] specific information you [1:17:47] want to add to that [1:17:48] subpoena, it's a [1:17:49] friendly administration, but [1:17:50] the ATF still isn't [1:17:51] giving us anything in a [1:17:52] manner. [1:17:53] And so that's just too [1:17:54] long, and we should figure [1:17:55] out more about it. [1:17:56] In our letter, we refer to [1:17:57] some of the FOIA things, [1:17:58] and apparently there is [1:18:00] evidence now that ATF [1:18:02] agents can have their own [1:18:03] target that they can [1:18:04] monitor for 30 to 180 days, [1:18:07] and monitor along with the [1:18:09] FBI through this with, it [1:18:10] sounds like sort of no due [1:18:11] process, or courts, or [1:18:12] anybody involved with this. [1:18:13] And the fact that they won't [1:18:14] tell Congress what they're [1:18:15] doing, I think our patients [1:18:16] should wear thin. [1:18:17] I think we should really [1:18:18] find out what's going on [1:18:19] over there, because [1:18:20] sometimes even when an [1:18:21] administration changes, [1:18:22] people at the top change, [1:18:23] but somebody who's in [1:18:24] charge of this program may [1:18:25] be the exact same people [1:18:26] that were doing it in the [1:18:27] previous administration. [1:18:28] But we're going to try to [1:18:29] get to the bottom of that. [1:18:30] I don't have any further [1:18:31] questions. [1:18:32] We have gone a couple [1:18:33] rounds. [1:18:34] Do you have anything else [1:18:35] you'd like to say? [1:18:36] I think we're going to wrap [1:18:38] it up. [1:18:39] Mr. Chairman. [1:18:40] Yes. [1:18:41] Can I just comment on that [1:18:42] briefly? [1:18:43] And Senator Peters earlier, [1:18:44] he didn't use the phrase [1:18:45] third party doctrine, but he [1:18:46] described examples of what [1:18:48] is the third party doctrine. [1:18:49] The third party doctrine [1:18:50] was established by the [1:18:51] Supreme Court in the [1:18:52] 70s in a bank case and a [1:18:53] phone case, back when we [1:18:55] made a phone call and wires [1:18:57] actually connected to [1:18:58] connect you to me. [1:18:59] I think we're going to [1:19:00] wrap it up. [1:19:01] Mr. Chairman, can I [1:19:02] just comment on that [1:19:03] briefly? [1:19:04] Senator Peters earlier, [1:19:05] you could put a trap on it [1:19:08] and you could see everybody [1:19:09] I dialed. [1:19:10] And the theory of the [1:19:12] third party doctrine is that [1:19:16] if I dial my phone, I know [1:19:19] that I'm giving the phone [1:19:20] company that information [1:19:22] and therefore giving up all [1:19:24] constitutional rights to [1:19:25] privacy. [1:19:26] A terrible theory. [1:19:27] Regardless of whether I [1:19:29] have a contract with that [1:19:31] phone company to keep those [1:19:33] records private on the old [1:19:35] privacy theory of fourth [1:19:40] amendment rights, which was [1:19:43] based on, oh, the [1:19:45] constitution and trespass [1:19:46] theory, etc. [1:19:47] Contract would fit in there. [1:19:49] Same with my bank records. [1:19:51] When I use a bank and we all [1:19:53] do, they fall under the same [1:19:57] rules. [1:19:58] So you just commented, Mr. [1:19:59] Chairman, about no warrants, [1:20:01] no judicial, no due process. [1:20:02] That's exactly right. [1:20:04] Because all of our government [1:20:06] agencies can just go ask the [1:20:08] bank for your records. [1:20:10] Now, then it's up to the bank [1:20:12] whether they turn them over or [1:20:15] even let you know about it. [1:20:17] Right. [1:20:18] But until that's legislated. [1:20:19] You know, huge issue. [1:20:20] And then the court helped a [1:20:21] little bit to abbreviate the [1:20:23] expanse of the third party [1:20:25] doctrine in the carpenter [1:20:26] decision. [1:20:27] And I actually think, and the [1:20:29] several senators were caught up [1:20:30] in this recently. [1:20:31] And carpenter, I believe it's [1:20:32] either carpenter or the other [1:20:33] case before that. [1:20:34] They make the decision that [1:20:36] your geolocation is actually [1:20:37] amongst all the data that the [1:20:38] court doesn't care about and [1:20:39] they say you have no privacy [1:20:40] interest and no personal [1:20:41] interest in. [1:20:42] You do have it in your [1:20:43] location. [1:20:44] That was Jones, Mr. Chairman. [1:20:45] Skimming? [1:20:46] The Jones case, Mr. Chairman. [1:20:47] Skimming? [1:20:48] The Jones case. [1:20:49] The Jones case. [1:20:50] So there's two different [1:20:51] and they're kind of, but it's [1:20:52] a Jones case. [1:20:53] But I really think absolutely, [1:20:55] and I don't know if any of the [1:20:56] senators, you weren't on that [1:20:57] list, were you? [1:20:58] You were on the list. [1:20:59] But the, I think it needs to [1:21:01] be pursued based on that case [1:21:03] because they did look at [1:21:04] geolocation. [1:21:05] They did look at [1:21:06] geolocation. [1:21:07] They did look at [1:21:08] geolocation. [1:21:09] They did look at [1:21:10] geolocation. [1:21:11] They did look at [1:21:12] geolocation. [1:21:13] They're looking at where you [1:21:14] were on January 6th. [1:21:15] And, of course, the phone [1:21:17] companies did not defend [1:21:18] anyone. [1:21:19] One phone company defended one [1:21:20] senator and the other one [1:21:21] didn't defend anybody. [1:21:22] But I think you have a real [1:21:23] case on this. [1:21:25] The question is whether or not [1:21:26] this is a violation of the [1:21:27] government or whether the [1:21:28] phone companies have an [1:21:29] obligation to protect [1:21:30] geolocation. [1:21:31] Can you sue both? [1:21:32] You can sue the phone [1:21:33] companies, but can you sue [1:21:34] the government over it too? [1:21:35] Well, you're going to run [1:21:36] into, you're going to run [1:21:37] into, you're going to run [1:21:38] into, you're going to [1:21:39] run into, you're going to [1:21:41] get the third party [1:21:42] doctrine. [1:21:43] And, you know, you're going [1:21:44] to run into the [1:21:45] government. [1:21:46] And, with the third party [1:21:47] doctrine established by the [1:21:48] Supreme Court, you will not [1:21:50] be able to successfully sue [1:21:51] the government, absent trying [1:21:52] to go all the way to the [1:21:53] Supreme Court and getting the [1:21:54] third party doctrine [1:21:55] overturned. [1:21:56] Even though they've [1:21:57] allowed now the geolocation [1:21:58] is not protected by the [1:21:59] third party doctrine. [1:22:00] Well, there was, I mean, [1:22:01] Mr. Chairman, there was the [1:22:02] bill that Congress passed [1:22:03] last year that I believe, [1:22:04] Senator Hall can correct me, [1:22:05] but I believe [1:22:06] authorize at least some [1:22:07] members, perhaps senators, to [1:22:08] sue over at least some of [1:22:09] other parties. [1:22:10] I don't think that's [1:22:11] true. [1:22:12] I don't think that's true. [1:22:13] I don't think that's true. [1:22:14] I don't think that's true. [1:22:15] I don't think that's true. [1:22:16] But I do think the larger [1:22:17] point, Mr. Chairman, is that [1:22:18] whether, whether we are [1:22:19] particularly concerned with [1:22:20] the phone records of [1:22:21] senators or Americans who [1:22:22] don't hold elected office, [1:22:23] the problem is the same, [1:22:24] which is that there are [1:22:25] woefully insufficient [1:22:26] remedies for any [1:22:27] government violation of our [1:22:28] Fourth Amendment rights. [1:22:29] I agree completely. [1:22:30] I think Smith and the [1:22:31] other decisions were all [1:22:32] incorrectly decided. [1:22:33] I think that there are [1:22:34] two years to go from [1:22:35] Olmstead and saying you can [1:22:36] wiretap anybody's phone all [1:22:37] the way to Katz. [1:22:38] And so you had a long [1:22:40] period of time until the [1:22:41] court finally started [1:22:42] getting it right, but they [1:22:43] still aren't completely [1:22:44] getting it right and [1:22:45] Carpenter and Jones are a [1:22:46] step in the right [1:22:47] direction. [1:22:48] But I actually think Jones [1:22:49] is on point here and I [1:22:50] do think that you can win [1:22:51] a case. [1:22:52] So my suggestion is that [1:22:53] you get a, oh, you are a [1:22:54] lawyer. [1:22:55] You should, I think that, [1:22:56] I don't know, I think [1:22:58] there still is an opening [1:22:59] that third party doctrine [1:23:00] doesn't because the [1:23:01] geolocation they say is [1:23:02] something that is not just [1:23:04] data anymore. [1:23:05] You have a personal [1:23:06] interest in geolocation. [1:23:07] They, they ratcheted or [1:23:08] created exceptions is how I [1:23:09] would characterize it to [1:23:10] the third party doctrine [1:23:11] with respect to that level [1:23:12] of nuance which of course [1:23:13] they didn't foresee in the [1:23:14] 1970s. [1:23:15] But the 1970s technology [1:23:16] wasn't foreseen by the [1:23:17] founders. [1:23:18] I would suggest that it [1:23:20] would be better and you [1:23:21] doesn't strike me as [1:23:22] well. [1:23:23] But the 1970s technology [1:23:24] wasn't foreseen by the [1:23:25] founders. [1:23:26] I would suggest that it [1:23:28] doesn't strike me as [1:23:30] particularly difficult to [1:23:31] get bipartisan support to [1:23:33] introduce this kind of [1:23:34] protection particularly [1:23:35] given what's happened [1:23:36] around here recently. [1:23:37] We have that [1:23:38] legislation and I will [1:23:39] introduce it again. [1:23:40] Thank you. [1:23:41] But Mr. Vladeck did you [1:23:42] have another comment on [1:23:43] this? [1:23:44] Thanks everybody. [1:23:45] I think we actually [1:23:46] covered more than just the [1:23:47] second amendment. [1:23:48] We did the second amendment. [1:23:49] We got some of the fourth [1:23:50] amendment. [1:23:51] We talked about first [1:23:52] amendment the separation of [1:23:53] powers. [1:23:54] I think it was a good [1:23:55] hearing. [1:23:56] Thanks everybody.