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[Senate Hearing 114-]
[From the U.S. Government Publishing Office]

 
  COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR 
                            FISCAL YEAR 2017

                              ----------                              

                      WEDNESDAY, JANUARY 20, 2016

                                       U.S. Senate,
           Subcommittee of the Committee on Appropriations,
                                                    Washington, DC.

    The subcommittee met at 10:08 a.m., in room SD-192, Dirksen 
Senate Office Building, Hon. Richard C. Shelby (chairman) 
presiding.
    Present: Senators Shelby, Boozman, Capito, Lankford, 
Mikulski, Feinstein, Reed, Coons, Baldwin, and Murphy.

            OVERSIGHT OF THE DEPARTMENT OF JUSTICE'S ROLE IN

               IMPLEMENTING NEW EXECUTIVE ACTIONS RELATED

                             TO GUN CONTROL

STATEMENTS OF:
        HON. LORETTA E. LYNCH, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
        HON. LUTHER STRANGE, ATTORNEY GENERAL, STATE OF ALABAMA
        HON. KEN CUCCINELLI, FORMER ATTORNEY GENERAL, COMMONWEALTH OF 
            VIRGINIA, AND FOUNDING PARTNER AND ATTORNEY, UNITED SELF 
            DEFENSE LAW FIRM
        MARK BARDEN, FOUNDER AND MANAGING DIRECTOR, SANDY HOOK PROMISE
        DR. JOYCE LEE MALCOLM, PROFESSOR, GEORGE MASON UNIVERSITY 
            SCHOOL OF LAW

             opening statement of senator richard c. shelby

    Senator Shelby. This hearing will come to order.
    Madam Attorney General, we thank you for joining us today 
to discuss the President's recent executive actions.
    As chairman of this subcommittee, I believe that it is my 
duty to the American people to properly oversee the Department 
of Justice and ensure that any funding provided by this 
subcommittee is used as Congress intended and within the bounds 
of the Constitution.
    It is clear to me that the American people are fearful that 
President Obama is eager to strip them of their Second 
Amendment rights.
    Let me be clear. The Second Amendment is not a suggestion. 
It is an individual right protected in the Bill of Rights that 
has been recognized by the Supreme Court.
    And with that in mind, this morning I am very concerned 
with the recent executive actions by the President for two main 
reasons.
    First, President Obama I believe is far too willing to end 
run Congress through executive action. The President has said 
that he believes that when Congress does not act the way he 
wants us to, then he must act alone. Our Constitution will not 
allow for this kind of unilateral action, and the American 
people will not stand for it.
    Whether through executive amnesty to thousands of illegal 
immigrants or increased gun control measures, the President has 
unwisely, I believe, acted alone.
    However, what the President fails to remember is that we 
have a system of checks and balances, a system that was created 
to ensure that power was not concentrated in a single branch of 
the Federal Government.
    The President, I believe, has ignored the Founders' system 
and has accelerated the use of executive fiat to an alarming 
new level.
    Secondly, none of these executive actions that President 
Obama has proposed would have prevented the recent tragic 
events in our Nation.
    Whether it is a terrorist attack or a single gun crime, I 
firmly believe that those responsible should be held 
accountable and that we must work to prevent it from happening 
again.
    As we have seen time and again, this President uses tragic 
events to push his political agenda. I believe that he is more 
interested in grandstanding and engaging in anti-gun theatrics 
than actually doing the work necessary to protect this country.
    In the wake of the terrorist attacks in San Bernardino, 
President Obama did not address our law enforcement's failures 
which allowed those terrorists to live among us. He also did 
not look at making changes to our immigration system after it 
clearly failed us by allowing an individual who should have 
been known to be a violent extremist to enter our country. 
Instead, the President's immediate response was to propose 
additional gun control measures.
    Let us be clear. Criminals and terrorists are not buying 
their guns from gun shows, gun stores, or collectors because 
criminals, by definition, do not follow the law.
    Madam Attorney General, we live in a dangerous world, as 
you know, and the American people are looking for us to do 
everything in our power to keep them safe. The next time a 
terrorist attack occurs in this Nation, innocent law-abiding 
Americans must have the ability, I believe, to protect 
themselves and their loved ones from harm, if they so choose. 
It is our responsibility, I believe, to preserve their rights 
and not limit them.
    I believe most of us know that this President has made no 
secret of his desire to restrict the Second Amendment rights of 
law-abiding American citizens. The American people deserve and 
I believe they expect more from their President. They also 
expect more from their Members of Congress, and I intend to 
live up to their expectations.
    Madam Attorney General, the Department is on notice. This 
subcommittee will have no part in undermining the Constitution 
and the rights that it protects.
    Senator Mikulski.

                statement of senator barbara a. mikulski

    Senator Mikulski. Thank you very much, Mr. Chairman, and I 
congratulate you on holding a hearing so quickly in the opening 
session and taking up the topic or the issue of guns and their 
excessive availability in our society.
    This hearing does tackle the very pressing issue of guns 
and gun violence. On the average, 300 Americans are shot every 
day. Ninety of them will die, almost a third. We do need to 
change our Nation's culture of violence. We do need to stop 
guns from getting into the wrong hands, the criminals, those 
with mental illness, without infringing on the right of law-
abiding citizens to purchase firearms.
    But know that I do support the President's measure on guns. 
He is within his constitutional authority to act and many of 
these activities like adding more FBI and ATF agents have been 
strongly supported by this subcommittee. I think last year's 
omnibus under your chairmanship, sir, really showed our 
commitment to enforcing the existing laws and providing the 
staff in order to do it.
    I do look forward to hearing Attorney General Loretta 
Lynch's testimony today on the President's recent announcement 
on guns and the impact it will have on the American people and 
whether it will make us safe. No mincing, no message, no 
talking points. Will it really help the American people? Are we 
within our constitutional boundaries? We do respect the 
Constitution and also, though, its impact on the Justice 
Department's ability to deal with this.
    We also will listen to the testimony of outside witnesses 
on the second panel. These are excellent people who are well 
seasoned, well experienced, then also a father who will talk 
about the grim things that happened at Sandy Point.
    No one is immune from gun violence, whether you are a 
Congresswoman trying to meet with your constituents named Gabby 
Gifford, whether you are children going to elementary school in 
a wonderful suburban community called Sandy Hook, whether you 
are just simply going to the movies or going to a community 
college or sitting in a Charleston church of iconic nature in 
the civil rights struggle to study the Lord's word and welcome 
in a stranger to end in such a terrible tragedy. Our President 
was at that funeral, as he has been at so many, and what he 
says, we have to do something.
    So we look forward to this and we look forward to what the 
President's proposals will be in the new year, the budgetary 
recommendations that he puts behind it. We are appropriators. 
We look forward to the President's recommendation. I am 
particularly interested in strengthening the National Instant 
Criminal Background Check System (NICS). There are backlogs. 
There are technological glitches. People who want to go by the 
law are frustrated. We have to enhance the FBI's capacity to 
run background checks while we are asking them to do a lot of 
other background checks. Are there new ways to do this and to 
train local law enforcement?
    But this is not only a Justice Department problem. I just 
left the HELP Committee hearing where we are holding a hearing 
on mental illness. And for so many people who are victims of 
gun violence, the volatile combination of mental illness and 
access to guns is dangerous.
    Mr. Chairman, I look forward, though, not to me talking and 
listening to myself but listening to the Attorney General and 
listening to this wonderful panel that you have invited to 
participate today. So let us solve the problem. Let us not get 
involved in constitutional arguments, and let us help our 
American people be safe and secure in their home, their 
neighborhood, their school, and their house of worship.
    Senator Shelby. Madam Attorney General, welcome to the 
subcommittee again. Your written testimony will be made part of 
the hearing record. You proceed as you wish.
STATEMENT OF HON. LORETTA E. LYNCH, ATTORNEY GENERAL, 
            DEPARTMENT OF JUSTICE
    Attorney General Lynch. Thank you, Mr. Chairman. Good 
morning, Chairman Shelby, Vice Chairwoman Mikulski, and the 
distinguished members of this subcommittee. I greatly 
appreciate this opportunity to appear before you today to 
discuss the steps that the Department of Justice is taking to 
reduce gun violence and to ensure smart and effective 
enforcement of our Nation's gun laws.
    Now, of course, as this subcommittee well knows, our Nation 
faces an epidemic of gun violence that has taken a devastating 
toll on communities throughout the country. Each and every 
year, tens of thousands of Americans are injured or killed by 
firearms in armed robberies, domestic disputes, tragically 
suicides, accidents, shootouts, and heinous acts of mass 
violence. From law enforcement officers shot down while 
defending their communities, to children killed in tragic 
accidents, our friends and family members, our neighbors, our 
fellow citizens are being taken from us day after day after 
day.
    As the list of tragedies involving firearms has grown, so 
has the American people's belief that we must do more to stem 
the tide of gun violence, and this administration is committed 
to doing our part. The executive actions that the President 
announced 2 weeks ago, including the measures that I 
recommended to him, are essential components of this effort. 
They are important steps that are within the executive's power 
to clarify existing legal provisions, to focus enforcement 
efforts, and to spur innovation.
    I have complete confidence that the common sense steps 
announced by the President are lawful. They are consistent with 
the Constitution, as interpreted by the Supreme Court, and the 
laws passed by Congress. For example, the Gun Control Act lists 
the people who are not allowed to have firearms, such as 
felons, domestic abusers, and others. Congress has also 
required that background checks be conducted as part of sales 
made by federally licensed firearms dealers to make sure that 
guns stay out of the wrong hands. The actions announced by the 
President, which focus on background checks and keeping guns 
out of the wrong hands, are fully consistent with the laws 
passed by Congress.
    Taken together, the new executive actions will bring 
progress on a number of fronts. By clarifying what it means to 
be ``engaged in the business'' of dealing firearms, we raise 
awareness of and enhance compliance with laws that are already 
on the books. By issuing new regulations, we ensure that 
licensed dealers who ship weapons will report them if they are 
lost or stolen in transit, and that those trying to acquire 
some of the most dangerous weapons through trusts or 
corporations undergo background checks. By enhancing our 
national system of background checks, we will be better 
prepared to keep guns out of the wrong hands in the first 
place. By increasing access to mental health care treatment 
with a proposed $500 million investment to the Department of 
Health and Human Services, also referred to as HHS, we will not 
only be helping those in need, but we will also be curbing gun 
deaths, the majority of which tragically result from suicide. 
And by supporting research on gun safety technology, we will be 
laying the groundwork for a safer future and drawing on our 
strength as the most technologically advanced nation on earth.
    The steps that I have outlined and the actions that 
President Obama has described are all well reasoned measures 
well within existing legal authorities and built on work that 
is already underway. They clarify laws that are already on the 
books because clear notice will help ensure that those laws are 
followed. They direct important resources to our law 
enforcement agents because these men and women deserve to have 
the support they need to do their difficult jobs effectively. 
And they lay the groundwork for State governments to more 
easily provide information to our background check system and 
for helping people with mental illness gain access to care 
because in addition to helping people get the treatment they 
need, we must make sure we keep guns out of the hands of those 
who are prohibited by law from having them. And they invest in 
research and promising technology that will make weapons safer 
because problem solving through innovation has always been one 
of our country's greatest strengths.
    Mr. Chairman, Vice Chairwoman Mikulski, I am confident that 
these actions will help to make our people safer, our 
communities more secure, and our law enforcement more 
effective. But I also have no illusions that these measures by 
themselves will end gun violence in America. At a time when 
there is so much work to be done and so much capacity for 
progress, there are many areas where only Congress can act. We 
would welcome the opportunity to work with you to further these 
goals. And that is why I am so grateful to have this 
opportunity to speak with you today about how we can work 
together to reduce gun violence in this country, and I look 
forward to continuing this conversation in the days ahead as we 
discuss how to keep our promise to protect and defend every 
American's right to safety and security and to life and 
liberty.
    At this time, I look forward to answering any questions you 
may have. Thank you.
    [The statement follows:]
              Prepared Statement of Hon. Loretta E. Lynch
    Good morning, Chairman Shelby, Vice Chairwoman Mikulski, and 
distinguished members of the subcommittee. I appreciate this 
opportunity to appear before you today to discuss steps the Department 
of Justice is taking to reduce gun violence and ensure smart and 
effective enforcement of our Nation's gun laws.
    As this subcommittee well knows, our Nation faces an epidemic of 
gun violence that has taken a devastating toll on communities 
throughout the country. Each and every year, tens of thousands of 
Americans are injured or killed by firearms--in armed robberies, 
domestic disputes, suicides, accidents, shootouts, and heinous acts of 
mass violence. From law enforcement officers shot down while defending 
their communities, to children killed in tragic accidents, our friends 
and family members, neighbors and fellow citizens are being taken from 
us--day after day after day.
    As the list of tragedies involving firearms has grown, so has the 
American people's belief that we must do more to stem the tide of gun 
violence--and this administration is committed to doing our part. The 
executive actions that the President announced 2 weeks ago, including 
the measures I recommended to him, are essential components of our 
effort. They are important steps that are within the Executive's power 
to clarify existing legal provisions, focus enforcement efforts, and 
spur innovation.
    I have complete confidence that the common sense steps announced by 
the President are lawful. They are consistent with the Constitution as 
interpreted by the Supreme Court and the laws passed by Congress. For 
example, the Gun Control Act lists the people who are not allowed to 
have firearms--such as felons, domestic abusers, and others. Congress 
has also required that background checks be conducted as part of sales 
made by federally licensed firearms dealers to make sure guns stay out 
of the wrong hands. The actions announced by the President, which focus 
on background checks and keeping guns out of the wrong hands, are fully 
consistent with the laws passed by Congress.
    Taken together, the new executive actions will bring progress on a 
number of fronts. By clarifying what it means to be ``engaged in the 
business'' of dealing firearms, we raise awareness of and enhance 
compliance with laws that are already on the books. By issuing new 
regulations, we ensure that licensed dealers who ship weapons will 
report them if they are lost or stolen in transit, and that those 
trying to acquire some of the most dangerous weapons through trusts or 
corporations undergo background checks. By enhancing our national 
system of background checks, we will be better prepared to keep guns 
out of the wrong hands in the first place. By increasing access to 
mental healthcare treatment with a proposed $500 million investment to 
the Department of Health and Human Services (HHS), we will not only be 
helping those in need, but also curbing gun deaths--the majority of 
which result from suicide. And by supporting research on gun safety 
technology, we will be laying the groundwork for a safer future and 
drawing on our strength as the most technologically advanced nation on 
Earth.
    These actions will involve important investments in the Federal 
Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives (ATF) over the course of fiscal years 2016 and 
2017--some of which have already been appropriated, and some of which 
will be requested in the coming year. This year, the FBI will be 
dedicating $6.6 million to begin filling 230 new positions to support 
the National Instant Criminal Background Check System (NICS), which we 
are currently working to transition to a round-the-clock service. ATF 
will be investing $4 million to enhance the capabilities of its 
National Integrated Ballistic Information Network (NIBIN), including 
support for the National NIBIN Correlation and Training Center in 
Huntsville, Alabama, which is set to open in February 2016.
    In fiscal year 2017, the President's budget will request $80.3 
million to sustain and expand upon these critical investments. When the 
budget submission is delivered to Congress on February 9, the FBI's 
request will include $35.0 million to sustain the fiscal year 2016 NICS 
expansion, enabling the Bureau to increase the number of personnel 
processing firearms background checks and enhance the recruitment and 
retention of the personnel in these critical jobs. ATF's request will 
include $35.6 million for an additional 200 Special Agents and Industry 
Operations Investigators--vital personnel who will enforce existing 
Federal firearms laws, take violent criminals off the street, prevent 
firearms from getting into the wrong hands, and enhance ATF's ability 
to perform its regulatory duties. ATF will seek to invest an additional 
$4.0 million in NIBIN above the fiscal year 2016 funding level to 
support additional staff hiring, and $5.7 million to help process 
Federal firearms license applications and National Firearms Act 
applications, as well as to support gun crime tracing--a critical 
service provided to Federal, State, and local law enforcement across 
the country.
    The steps that I have outlined--and the actions that President 
Obama has described--are all well-reasoned measures, well within 
existing legal authorities, built on work that's already underway. They 
clarify laws that are already on the books--because clear notice will 
help ensure that those laws are followed. They direct important 
resources to our law enforcement agents--because these men and women 
deserve to have the support they need to do their difficult jobs 
effectively. They lay the groundwork for State governments to more 
easily provide information to our background check system and for 
helping people with mental illnesses gain access to care--because in 
addition to helping people get the treatment they need, we must make 
sure we keep guns out of the hands of those who are prohibited by law 
from having them. And they invest in research and promising technology 
that will make weapons safer--because problem-solving through 
innovation has always been one of our country's greatest strengths.
    I am confident that these actions will help to make our people 
safer, our communities more secure, and our law enforcement more 
effective. But I also have no illusions that these measures by 
themselves will end gun violence in America. At a time when there is so 
much work to be done and so much capacity for progress, there are many 
areas where only Congress can act. We would welcome the opportunity to 
work with you to further these goals. That's why I am so grateful to 
have this opportunity to speak with you today about how we can work 
together to reduce gun violence in this country. And I look forward to 
continuing this conversation in the days ahead as we discuss how to 
keep our promise to protect and defend every American's right to safety 
and security, and to life and liberty.
    At this time, I'd be glad to answer any questions you may have.

    Senator Shelby. Thank you.

                         CONSTITUTIONAL RIGHTS

    Madam Attorney General, as I said earlier, the Constitution 
is not a suggestion. You would agree with that, would you not, 
that the Constitution of United States is not a suggestion?
    Attorney General Lynch. Mr. Chairman, I agree that it is 
the law of the land and the law that we are all sworn to 
uphold.
    Senator Shelby. The rights that it conveys to the people of 
this Nation are not recommendations. You would agree with that, 
would you?
    Attorney General Lynch. Mr. Chairman, I agree with you on 
that, as well as your previous proposition.
    Senator Shelby. And the Constitution, obviously, is--the 
Second Amendment is part of the Constitution, the Bill of 
Rights. Right?
    Attorney General Lynch. It is an important part of the 
first set of amendments, that Bill of Rights.
    Senator Shelby. And do you believe that the rights granted 
by the Second Amendment are equally as important as those 
granted by the First Amendment and the Fourth Amendment, the 
Fifth Amendment, the Seventh Amendment and so forth? Would you 
say that it is all an integral part of the Constitution?
    Attorney General Lynch. Senator, I believe the Bill of 
Rights and the subsequent amendments are, indeed, an integral 
part of the Constitution, as well as the case laws that seek to 
interpret them.
    Senator Shelby. Okay.
    Madam Attorney General, you say that you worked closely 
with the President to craft these executive actions to go as 
far as the President can legally go without overstepping. While 
we may disagree about whether or not the President has 
overstepped--and I am sure we would--I am concerned that the 
President is slowly, slowly chipping away at our Second 
Amendment rights. Can you guarantee us, Madam Attorney General, 
that there is legal authority for the President to take the 
actions that he has taken? And can you provide the specific 
laws or court cases that support the position?
    Attorney General Lynch. Mr. Chairman, with respect to the 
recommendations that I made to the President, as indicated in 
my earlier remarks, I believe that they are consistent both 
with the Constitution and existing case law that interprets the 
Constitution, specifically the Heller case, handed down by the 
Supreme Court, that defined the Second Amendment and clarified 
the individual's right to bear arms, as well as the agency's 
right to promulgate guidance therefrom as well.
    With respect to the actions taken, I am confident that they 
are consistent with the laws of the land. They are within the 
President's authority because they seek to enforce the existing 
laws. They seek to strengthen the provisions that Congress has 
directed that we undertake to keep the American people safe, 
such as the NICS background system. They seek to enhance 
protections for those who have mental illness, providing 
greater treatment for them, another goal that I know this 
subcommittee supports.

                           BACKGROUND CHECKS

    Senator Shelby. Each time there is a mass shooting, the 
issue of expanded background checks reenters the public debate. 
I think we must look at the facts, and the facts are that most 
of those actions are carried out by individuals that would not 
have been prevented by obtaining a firearm. The Sandy Hook 
crimes were committed by a young man who shot his mother and 
stole her guns. Now, Madam Attorney General, would a background 
check have prevented that horrible tragedy?
    The Virginia Tech shooter actually passed a background 
check to get his guns, much like those that committed similar 
crimes at Fort Hood, Aurora, Chattanooga, and the list would go 
on and on.
    More recently the terrorists responsible for the attacks in 
San Bernardino obtained their guns through a straw purchase, 
which means a background check would not have helped them 
either.
    Yet, we keep coming back to this issue.
    Madam Attorney General, could you walk through these 
examples and tell us how having more Federal firearms licensees 
would have altered the outcome of those events?
    Attorney General Lynch. Mr. Chairman, as I indicated, I do 
not believe that we are able to look back and find a specific 
measure that would prevent a specific crime. But that does not 
mean we must not seek to prevent future tragedies.
    With respect to strengthening our background system, sadly 
the NICS system is overwhelmed at this point in time. And of 
course, as we saw with the tragic shooting in Charleston, that 
individual's information was submitted, but because of a series 
of glitches through experienced and well-meaning examiners, the 
information needed was not discovered in time to prevent that.
    The licensed firearms dealers who submit this information 
deserve the best and most efficient NICS system that we can 
provide them. The individuals who submit their information and 
wait for that response also deserve the most efficient system 
that we can provide them. And certainly the measures that we 
are discussing today, for example, increasing the number of 
examiners for the NICS system, of course, a matter directly 
related to our appropriations, seek to serve that important 
end.
    With respect to other tragedies, again, because as I look 
through the panoply of criminal laws, which give us a way to 
protect people and vindicate the rights of those who have been 
the victims of crime, yet have not yet found a way to erase the 
human condition that leads to crime. We are committed to doing 
everything we can, looking forward, to making sure that our gun 
laws are effectively enforced and that our American people are 
kept as safe as possible.
    Senator Shelby. Madam Attorney General, as we look back on 
some of these tragedies--and they are real tragedies--which of 
these individuals bought their gun from a gun show and which of 
these criminals purchased their gun illegally online? I do not 
believe they did. Did they?
    Attorney General Lynch. Mr. Chairman, I am not able to give 
you that information now.
    But what I can indicate is that with respect to the 
clarifications on who is required to seek a license as a 
federally licensed firearms dealer, that this is in response to 
inquiries that the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives receives on a regular basis as they operate within 
gun shows to provide information and guidance. And they often 
receive telephonic inquiries as well from individuals seeking 
to comply with the law who want to know what are the standards, 
what are the things that determine whether or not they need to, 
in fact, apply for a license.

                           INTERNET GUN SALES

    Senator Shelby. The area of new standards for gun dealers. 
A recent ``New York Times'' article states that the President's 
plan on gun control would require officials from the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives to begin contacting 
gun sellers to let them know of new standards to clarify who 
would be considered a regulated dealer. The article goes on to 
suggest that the changes are particularly meant for online gun 
merchants who avoid conducting background checks in spite of 
making ``high volume gun sales through certain Web sites.''
    Madam Attorney General, the law requires that anyone 
selling guns for profit, which I believe would be high volume 
gun sales, to have a Federal firearms license. However, you are 
quoted in the article as saying--the article in the ``New York 
Times''--right now, in your words, ``it is really an Internet 
loophole.''
    Is this really a loophole in the law or it is a failure of 
enforcement?
    Attorney General Lynch. Well, Senator, I typically do not 
comment on news articles and would prefer to provide my own 
response to that particular issue.
    With respect to Internet sales, they are increasing. Not 
only do we see an increase in sales at the typical commercial 
level, at which the average consumer may, in fact, 
appropriately buy a number of commodities, including firearms. 
We also see firearms sales growing on what is called the 
Darknet, that is the particular part of the Internet not 
accessible to the average consumer but where illicit 
transactions are primarily held. These are not transactions 
where average law-abiding citizens are seeking to acquire a 
firearm lawfully and through the traditional process. These are 
Internet sales where criminals are seeking to acquire firearms 
through which they can harm our American citizens. This is not 
a loophole per se, but it is an area of enforcement that the 
ATF has been focused on.
    As you indicated, with respect to the individuals who 
operate at gun shows, flea markets, and the like, there will be 
an educational component to the guidance. This information will 
be provided to them. They will be allowed to ask questions. And 
we believe that this will increase compliance and frankly 
lessen confusion among those individuals seeking to comply with 
the law.
    But where individuals operate on the Darknet, primarily in 
illicit transactions, it will also put them on notice so that 
if enforcement actions need to be taken, there can be no 
discussion that they simply were not aware of this particular 
provision.

                        COMMUTATIONS AND PARDONS

    Senator Shelby. Madam Attorney General, I believe what we 
really should be talking about, not just here today but across 
America, is how to keep guns out of the hands of criminals and 
violent offenders. This is an uphill battle, I believe, if the 
President continues to focus on eroding Second Amendment rights 
while commuting the sentences of criminals with firearm 
convictions. And while we can debate--and we will debate--the 
issue of mandatory minimum sentences, the President's actions 
to commute sentences of individuals convicted of illegally 
possessing a firearm is disturbing.
    I do not know, Madam Attorney General, these individuals or 
why the President feels that they need shorter sentences, but I 
do know this. This sends a message to criminals that if you 
commit a crime with a gun, this administration will not be hard 
on you, perhaps go easy on you. That is the wrong message.
    Are the President's actions, Madam Attorney General, not 
sending a mixed message to Americans? One day he issues new 
executive actions to change gun regulations, and then pardons 
criminals with gun-related convictions the next day. How can 
the President and you, the Attorney General representing this 
administration, say he is committed to using every tool at the 
administration's disposal to reduce gun violence when his own 
administrator is not following through with the sentences of 
criminals with gun-related convictions? Does that trouble you?
    Attorney General Lynch. Well, Mr. Chairman, I do not know 
the specific cases to which you refer.
    Senator Shelby. We will give you a list of them.
    Attorney General Lynch. What I can tell you is that with 
respect to commutations or pardons, individuals who apply for 
those are carefully reviewed and carefully vetted, and only 
after consideration of a number of factors. In particular, 
there has been recent discussion about commutations of 
nonviolent drug offenders and whether or not those individuals 
also have firearms convictions. I would need to know the 
specific case to which you are referring.
    But with respect to the President's Clemency Project, for 
example, it is a focus on looking at individuals who today 
would not necessarily have received the lengthy narcotics 
sentences they received and who also otherwise qualify as 
nonviolent and with a particular type of record.
    And certainly I am happy to provide information, to the 
extent that it is helpful, on specific cases if you could alert 
me to them.
    I think that with respect to the issues that we are 
discussing today, providing clarification of existing case law, 
gathering the existing case law so that individuals seeking to 
comply with the law have in one spot an easy-to-read, 
comprehensive reference to what the existing law says qualifies 
as engaged in the business of dealing in firearms so that they 
know whether they have to apply for a license or not, also that 
their questions can be more informed is in fact helping the 
American people clarify this important issue.
    Clarifying the issue of who needs to report a firearm that 
is lost or stolen in transit allows ATF to begin investigations 
of stolen firearms much more quickly than we are able to now. 
Now we recover, Senator, on average 1,300 guns a year from 
crime scenes that turn out to be either lost or stolen, and we 
do not know that information until they are recovered in the 
course of a criminal investigation. Learning that information 
earlier will help us to start the investigation earlier and 
hopefully find those shipments before they fall into the hands 
of criminals, which is, of course, the goal of all of us here.
    Senator Shelby. Madam Attorney General, I will not go 
through the record here, but I have been handed by staff here a 
number of people who were convicted of possession of firearms 
during committing a criminal act or using a firearm during a 
criminal act that have been let out of prison early and put 
back on the people, which is dangerous.
    Thank you for your indulgence. Senator Mikulski.
    Senator Mikulski. Madam Attorney General, it is good to see 
you again. We welcome you back to this subcommittee. We from 
Maryland, we from Baltimore particularly thank the Justice 
Department for all of their help during our recent challenges 
in Baltimore related to the uprising we had over one young 
man's death, Freddie Gray, which now is going through the 
judicial system. And we are examining the need for additional 
criminal justice reform within our police department.
    But, Madam Attorney General, over 350 Baltimoreans were 
killed last year. Three hundred fifty dead, some of whom were 
little children who were killed as innocent bystanders or there 
is a question of whether it was revenge killing. This was 
criminal work, the growing nexus of drugs, crime, guns, 
violence, murder.
    My question to you--when I look at the 350 deaths, what can 
we do in just plain English to keep guns out of the hands of 
the criminals? I know we are talking about Second Amendment 
rights. Maryland is a State with enormous numbers of hunters, a 
gun tradition particularly in our area. But the gun tradition 
in Baltimore City should not be that the drug dealer is the one 
who gets the guns. How can we, in either the President's new 
proposals or in current law, really have an aggressive effort 
on this issue of guns and criminals?
    Attorney General Lynch. Thank you, Madam Vice Chairwoman.
    I think one of the most important things we can do is make 
sure that the Bureau of Alcohol, Tobacco, and Firearms is fully 
resourced. Our request for 200 additional agents and 
investigators for fiscal year 2017 is something that will, of 
course, be coming before the subcommittee with the 2017 budget. 
We do intend to, in our spend plan, send up information about 
the beginning of that process even this fiscal year.
    The law enforcement priorities of ATF at this point, 
consistent with the Smart on Crime plan, are in fact to focus 
on the violent crime issue that you have just described, to 
focus on individuals who terrorize neighborhoods, who harm 
children, who essentially through the unlawful possession of 
firearms create a danger to law-abiding Americans seeking to 
live their lives in our vibrant cities. We are targeting not 
just the gun traffickers, but as my ATF Director calls it, the 
``trigger pullers,'' gang violence, places where we have seen 
an increase in violent crime. We are looking at ways to target 
our resources to focus on those individuals who are causing the 
most harm to our communities.

                            HEROIN EPIDEMIC

    Senator Mikulski. Do you feel that this rise in gun 
violence--not to interrupt--is related to the growing heroin 
epidemic? In other words, what has happened in Baltimore City, 
which is just awful with these over 350 dead, not only the 
dead, God forbid, but the injured--but this is in every major 
city that this is going on. So it is just not Baltimore. This 
seems to me like an epidemic that has hit our big urban areas.
    Attorney General Lynch. Yes, ma'am, indeed. I believe that 
the phrase ``epidemic'' accurately captures the problem of the 
increase in heroin and opiod abuse that we are currently 
seeing. This is a problem in many of our urban areas. But I 
must say it has sadly spread across this country. There are 
many counties with various densities, even many rural areas 
that are in the grip of an opiod and heroin epidemic, and with 
that often comes an increase in violence. There our enforcement 
activities are focused on pairing ATF agents with DEA and FBI 
agents to target those criminal organizations that are bringing 
narcotics in and that are protecting the drug trade with their 
firearms.
    Senator Mikulski. Well, thank you very much, Madam Attorney 
General. My time is up.
    Senator Baldwin and I just left a hearing chaired by 
Senator Alexander and Vice Chair Senator Patty Murray on mental 
illness, excellent panel, very excellent, superb witnesses. And 
I know that we are going to really talk about this issue of 
mental illness, people who are mentally ill getting drugs. This 
whole issue of privacy rights, what do you know, how do you 
stop--the Virginia Tech situation comes to mind, and we could 
go through other cases. But in Virginia Tech, that young man 
had been in and out of institutions. Who knew? Who could help? 
When do we intervene? And just their ability to get these guns.
    We also had a shooting at Columbia Mall. We all have 
shootings. That is what is so terrible. We all have shootings.
    So I look forward to hearing your comments also on the 
mental illness aspect, but I know we have excellent other 
Senators here who want to get their questions. I am going to 
hear their questions and your answers. Thank you very much.
    Attorney General Lynch. Thank you.
    Senator Shelby. Senator Lankford.

                   FAST AND FURIOUS DOCUMENT SUBPOENA

    Senator Lankford. Good morning to you.
    Attorney General Lynch. Good morning, Senator.
    Senator Lankford. Thank you for being here and being a part 
of this.
    Let me bounce a couple questions off of you that are timely 
as well. I served previously in the House of Representatives on 
the Oversight and Government Reform Committee. I was part of 
the committee when we went through the subpoena process to ask 
your predecessor for additional documents for the Fast and 
Furious investigation on guns. Those were delayed to us. 
Privilege was announced on that. As of yesterday, a court has 
told the Attorney General's Office that those documents need to 
be turned over by February 2.
    I need clarification. Will all those documents now be 
released to the Oversight and Government Reform Committee by 
February 2, as per the judge's order?
    Attorney General Lynch. Well, thank you for the question, 
Senator.
    We did receive that ruling yesterday. We are still 
reviewing that ruling. I am aware of that provision, and we of 
course want to study it carefully and determine what 
appropriate steps to take and the timeliness of them. But I can 
certainly assure you that we will be either responding to the 
committee or to the court at the appropriate time.
    Senator Lankford. So you are not saying yes or no whether 
those documents will be turned over in time. Clearly they have 
been collected. They have been collected for years.
    Attorney General Lynch. If we will pursue any additional 
legal action. We have not made that decision. If we had, I 
would let you know. But since we have not, I am not able to 
give you that information at this time.
    Senator Lankford. Do you know when that answer will come 
back out?
    Attorney General Lynch. We will let you know certainly 
within the time period that you have just mentioned.

                         ATF AND FBI PROCESSES

    Senator Lankford. One of the conversations that I had with 
your predecessor was on process issues with ATF and FBI. FBI 
and ATF have two different sets of processes for many 
investigations. Those can be combined to make sure that we have 
clear processes across DOJ on it. Do you know of any kind of 
progress that has been made of late with ATF in trying to align 
with some of the FBI processes for how they do investigations 
in that process?
    Attorney General Lynch. Well, Senator, I would need to know 
a bit more of the context of the processes you refer to, 
whether you are referring to either deconfliction or joint 
efforts. If you could provide that, I am happy to----
    Senator Lankford. We would be glad to. We will try to 
follow up on that because that was an ongoing conversation that 
he and I agreed on and that there was a process moving on that.

                       FEDERAL FIREARMS LICENSES

    Let me ask about some of the guidances, as you have 
mentioned several times, for the Federal firearms licenses. The 
guidance that has come out seems to be the same as it was 
before, basically saying that if you are in the business of 
dealing in firearms, then, yes, you have to be licensed. That 
is nothing new on it. What we are trying to get at is what is 
the new definition. The previous definition for that seemed to 
change during the Clinton administration actually to have a 
lower number, to say people that are kitchen table dealers that 
are actually selling to their neighbors or occasionally sell a 
firearms out of their own collection--they are not a licensed 
dealer. What we are trying to get at is the clarification of 
who is a licensed dealer. When will that clarification come out 
of what you are proposing, and will it be a regulatory change 
or a guidance document?
    Attorney General Lynch. Well, Senator, the guidance 
document that has been promulgated does exactly that. It 
answers the question that you have raised. It collects 
information from all the cases that have considered this issue 
and provides, through a series of clear examples, a definition 
for when someone is engaged in the business and when they are 
not. And you are correct in the sense that the definition has 
not changed because the statute has not changed.
    Senator Lankford. Right.
    Attorney General Lynch. We are simply gathering the case 
law, the legal definitions that have been promulgated by courts 
in situations where people have been found to be engaged in the 
business and also where they have clarified the definition of 
the hobbyist and the collector because those exceptions also 
are still part of the law. Hobbyists and collectors are not 
required to obtain a license in order to transfer firearms.
    But it is important to note that this information has been 
scattered in a number of cases throughout the country. And as I 
mentioned before, ATF was constantly and still anticipates 
receiving inquiries from individuals seeking to comply with the 
law, asking if their activities constitute being engaged in a 
business of dealing in firearms.
    Senator Lankford. So what will be the clear rule? Is it how 
many firearms that you sell in a year time period? Is it over a 
lifetime? Is it the number in your collection? Is it based on 
the amount of income that you receive? What would be the clear 
guidance for that?
    Attorney General Lynch. The courts have determined that a 
number of factors are used in determining whether or not one is 
engaged in the business. And they have specifically said that 
there is not a specific number that makes one meet that test. 
Instead, it is the totality of circumstances. And essentially 
if one is repetitively selling firearms, if you hold yourself 
out as a dealer, if in fact you do intend to make a profit, all 
of these things go into that calculation. The courts have given 
different weight because the statute, as you know, does not 
contain----
    Senator Lankford. Correct, and that is what we are trying 
to get at. See, there is a difference between a guidance and a 
regulation, as you know extremely well. And we are trying to 
find out if there will be a rule promulgated in this with the 
guidance. I will walk back through some of those details with 
you.

                           BACKGROUND CHECKS

    I have one final question I find very important. It is the 
gathering of information that is going into the background 
checks. What is called the Interstate Identification Index--is 
that information used for the criminal background check 
information as well or only what is going into the national 
criminal background check, the NICS search? Are both of them 
used, do you know?
    Attorney General Lynch. I would have to get clarification 
on that for you. This particular recommendation that we have 
made to the President focuses on strengthening the NICS system.
    [The information follows:]

    Yes, both the Interstate Identification Index (III) and the 
National Instant Criminal Background Check System (NICS) are used.

    Senator Lankford. This is part of my concern on it as well 
because this has been an issue. I do not find anyone here that 
says we should not do background checks and that that database 
should not be very effective. But if I can have just the 
pleasure of the chairman for a moment, let me just run through 
a couple of our States in the States that actually submit 
information into the NICS system.
    If there is a Federal conviction for a felony, that is 
going into the system right away. But if it is a State felony, 
as I look through the listing here, Alabama currently has zero 
felonies--you will be glad to know that, sir--running into the 
system. California has 4,032. You will be glad to know that is 
all that is in California felonies. Delaware has zero. Maryland 
has 12. My fine State of Oklahoma has one, a very law-abiding 
State clearly. Rhode Island has zero, and Wisconsin has 106. 
That is not very many coming from our States into the NICS 
system.
    And so the question that I would have is and I think there 
has been common agreement on, what is happening between the 
States that they are not submitting the information into the 
Federal system, or is the Federal system so complicated to get 
information into that our States of all stripes are not 
submitting that information?
    Attorney General Lynch. Well, Senator, I think you have 
raised a very important issue. As you know, after the Virginia 
Tech tragedy, the Federal Government did reach out to the 
States and request a greater influx of information into the 
NICS system. Federal agencies are required to report 
information into the NICS system. States do it on a voluntary 
basis. And in fact, in the years since the Virginia Tech 
shooting, the amount of information coming from all of our 
States has increased by approximately 70 percent.
    Senator Lankford. Right, in mental health but not in the 
felonies.
    Attorney General Lynch. Well, it is increased by 70 percent 
across a number of categories, and I would not be able to break 
that out for you.
    What I did do also quite recently with the recommendations 
I provided to the President, I sent a letter to the Governors 
of every State asking them to essentially look at their systems 
and processes and make sure that they were, in fact, setting up 
the most efficient systems to provide information to us.
    The Department of Justice also, through its grants 
programs, does provide support for States who need assistance 
in categorizing the types of offenses that need to be provided 
into NICS and possibly also making their own systems consistent 
with NICS. And we will continue to do that. We look forward to 
working with our State partners on this. They are very 
important partners.
    Senator Lankford. Right. And I would say I know I have 
indulged the chairman's time, and I apologize for that in going 
a bit long on this question. But I would say this is an area of 
common ground where we could actually work together on this, 
and I look forward to that.
    Senator Shelby. Senator Coons.
    Senator Coons. Thank you, Chairman Shelby, and thank you, 
Vice Chair Mikulski. And thank you so much, Attorney General 
Lynch, for your leadership at the Department of Justice and for 
appearing before the Commerce, Justice, and Science 
Appropriations Subcommittee again.
    I was encouraged in your testimony earlier that you want to 
focus on the smart and effective enforcement of our existing 
gun laws. And I think the budgetary proposals that you have 
laid out and the elements of the executive order that you have 
covered are strong and good attempts to do exactly that. I was 
pleased to hear you as the Nation's top law enforcement 
official review what you believe to be the well-settled 
constitutionality of the actions proposed in the executive 
order and the actions proposed in the budget. So rather than 
debating that further, I am going to move forward to what you 
view as the most valuable parts of the budget request, 
something where this committee will be taking action.

                           ATF AND FBI HIRING

    A portion of the President's announcement was the addition 
of 200 new ATF and 230 new FBI personnel. As we have discussed, 
I have seen tragically firsthand in my hometown of Wilmington 
what a dramatic spike in gun violence can do to disrupt a town 
and a community to wreak destruction and pain and loss on 
families and whole neighborhoods. And I am grateful for how the 
Department of Justice, through its violence reduction network, 
has provided additional resources. But I have also seen how 
access to better quality background checks, access to better 
quality ballistic information, and an increased Federal law 
enforcement presence can make a significant difference.
    Can you explain in a little more detail why these new ATF 
agents and new FBI personnel, these new examiners and 
investigators, are really necessary and how they can help 
reduce gun violence not just in my hometown but in rural areas 
and in urban areas all over this country?
    Attorney General Lynch. Yes. Thank you, Senator.
    With respect to our request particularly for increased 
resources for ATF, we have discussed requesting resources that 
would allow us to hire 200 new agents and investigators. Some 
of those would, of course, work on the increased paperwork 
resulting from background checks. But the agents in particular 
would be focusing on the violent crime problems that we find to 
be so troubling in so many of our cities and towns and 
neighborhoods. They will be working in conjunction with task 
forces of State and local officers because we have found those 
to be extremely effective ways at focusing on the hotspots in 
particular areas. It will allow us also to increase the amount 
of enforcement that we provide over the Internet sales, as I 
mentioned, but to really focus on the violent crime problems 
plaguing so many of our cities.

           NATIONAL INTEGRATED BALLISTIC INFORMATION NETWORK

    In addition to the agents that we are requesting, the 
resources that we are requesting, as well as those we will 
begin using this year, would also go towards strengthening what 
is called the NIBIN network, the ballistics initiative. This is 
a law enforcement-to-law enforcement initiative that traces 
guns found at crime scenes, as well as casings, essentially all 
firearms-related evidence, and shares that information on a 
nationwide basis with law enforcement entities. It allows us to 
make connections. It allows us to find connections between 
firearms, and between those who are using the firearms.
    We are, in fact, opening a national center for National 
Integrated Ballistic Information Network (NIBIN) analysis, 
which will be located in Huntsville, Alabama. It is due to open 
I believe in a few months. And this is a tool that our law 
enforcement agencies depend upon greatly. The ability to track 
firearms is of grave importance.
    In particular, the ability to track stolen firearms is one 
that we feel can protect our communities. Stolen firearms and 
even, indeed, those firearms that are lost do not end up in the 
hands of law-abiding Americans. They end up in the hands of 
criminals, and they are recovered during criminal 
investigations. Sadly, they are recovered, at the rate that we 
have seen of 1,300 a year on average over the last 5 years, 
once the crime has already been committed. One of the things 
that these regulations would do is allow us to begin those 
investigations earlier and hopefully intercept those shipments 
before they fall into the hands of criminals.
    Senator Coons. Let me, just in closing, thank you for the 
very good work that your team has been doing in partnership 
with the Wilmington Police Department, John Skinner who is the 
lead in the Office of Justice Programs. The Department of 
Justice has done a great job. I have gotten to see firsthand 
how better access to NIBIN, better access to ballistics tools 
has improved our homicide case clearance rate in Wilmington 
from 10 percent 2 years ago to 50 percent this year. That makes 
a real difference, and having access to world-class and timely 
analysis and insight of ballistics evidence has significantly 
improved the investigatory and prosecutorial outcomes in my 
hometown.
    I am excited about this work. It is my hope that on a 
bipartisan basis we can invest the resources to strengthen 
Federal law enforcement to tackle gun violence around our 
country. As was said by Senator Mikulski in the opening, it is 
a crime, a shame that Americans literally in their going to 
church to worship, going to see movies, going to college 
classrooms, going to elementary school have been victims of gun 
violence. And we must do more together to tackle this very real 
problem facing our Nation.
    Thank you, Madam Attorney General.
    Attorney General Lynch. Thank you, Mr. Senator.
    Senator Shelby. Senator Capito.
    Senator Capito. Thank you, Mr. Chairman. Thank you, 
Attorney General, for being here with us today and thank you 
for your service to our country.
    Attorney General Lynch. Good morning, Senator.
    Senator Capito. I am very appreciative.
    You know, I want to begin my statement by echoing what we 
have heard across the board, and that is the deep tragedy that 
we all feel when gun tragedies occur. It hurts us all, and 
certainly our prayers and thoughts are always with those most 
deeply affected.
    But I do think that acknowledging that there is a great 
deal of frustration by the unilateral actions that the 
administration has chosen to take to curb this gun violence--
and part of the executive actions seem ambiguous and provide 
some confusion for law-abiding gun owners, but in other parts, 
seem a little bit more about political messaging.
    But that is not to say we should not take action and we 
should first act, as we have spoken about and you have very 
eloquently, to enforce the laws that are already on the books. 
And I would like to focus on where our common ground is.
    As you know, much of the work that we have talked about 
today is actually conducted in West Virginia. The National 
Instant Criminal Background Check System (NICS) and the 
Criminal Justice Information Services (CJIS) system is in 
Clarksburg, West Virginia, and the ATF tracing facility is in 
Martinsburg, West Virginia. Their efforts are invaluable to 
ensure that gun ownership is processed in an efficient and 
effective manner, and they each have proven their worth helping 
to track weapons and perpetrators of gun violence when crimes 
are committed. I have visited both of these facilities and I 
have seen the professionalism and the deep commitment that they 
have to getting it right.
    You did mention they are overstressed and overloaded and 
hopefully through the appropriations process that we worked 
through last year, we were able to increase the budget to make 
sure that we were able to employ more to make sure that they 
can successfully complete in a timely fashion the background 
checks.

           NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM

    And so I wanted to get an understanding from you. The 
administration has called for an additional 230 NICS examiners. 
I understand in your statement--I am sorry that I was not 
here--that you are going to go to a 24-hour system. Would that 
be 7 days, 24 hours? Is that your goal?
    Attorney General Lynch. Yes, Senator. The goal is to 
increase the capacity of the current NICS system so that it 
could be responsive on a 24-hour, 7-day a week basis. Currently 
we are limited by staffing, and I believe that we are able to 
operate 17 hours a day. I actually am not sure if it is 7 days 
a week at this point in time.
    We also do have an electronic platform through NICS. You 
may have seen that. It is called the E-Check System that allows 
dealers to get information quickly. And we hope to, frankly, 
improve that platform greatly. We are working with U.S. Digital 
Services and gathering information as to how to make that 
system more efficient so that that also can be up 24 hours a 
day. Right now, there are times when it must be down for 
maintenance, it must be down to get information uploaded into 
it. And so that will help us with the backlog that we are 
seeing and that frankly we have seen over the last several 
months and we anticipate will continue.
    Senator Capito. Have you begun the hiring on that of the 
230?
    Attorney General Lynch. With respect to the 230, we do hope 
to begin hiring of that using this fiscal year's appropriation 
and then the 2017 request would allow us to maintain that. 
Because we need to move as quickly as possible, we will likely 
begin hiring on a contractor basis first. That is usually 
quicker than hiring full-time employees. But the goal is to 
have full-time employees on board. As you know, for government 
employees, there is a significant--I should not say 
``significant'' but there is time required for the background 
checks and the like. So it will likely be several months before 
we have that full component on board.
    This is, of course, a matter of great concern for us 
because the NICS system at this point is at a point where it is 
becoming increasingly difficult to, in fact, process the 
applications within the 3-day time period.
    Senator Capito. Right, right. No, I certainly saw that when 
I was visiting.
    Let me ask you this. Senator Lankford I think brought up an 
excellent point. Your ability to trace and to perform an 
accurate background check is only as good as the information 
coming in. And as we saw in the Charleston, South Carolina 
incident, the information was unable to be traced to that 
individual. How are we going to meet that challenge? And is 
that training at the local level? Is it the NICS examiner? What 
happened there?
    Attorney General Lynch. Well, as I think you know, the NICS 
examiners are dedicated----
    Senator Capito. Oh, yes.
    Attorney General Lynch [continuing]. And pursue their jobs 
with great conviction and commitment.
    Senator Capito. Absolutely.
    Attorney General Lynch. In the Charleston case, my 
understanding is that the arrest record was located in one 
particular jurisdiction, but the query was made of another 
jurisdiction.
    Senator Capito. Yes, but how do we get around that?
    Attorney General Lynch. And because there was not a 
conviction yet, it prevented it from being in the court system. 
And so the examiner followed all the queries as per normal, and 
the information was literally sitting in an adjoining county's 
sort of bucket, so to speak, and so was not pulled in that.
    And it was frankly heartbreaking to all of us who worked on 
this matter from the FBI throughout the Department of Justice 
and one of the reasons why even then we began looking at ways 
to improve the NICS system. The FBI Director commissioned a 
report, and we have folded a number of those recommendations 
into this request.
    Being able to modernize the electronic database will be 
greatly helpful in making sure that all of the relevant 
jurisdictions are, in fact, able to be queried. If that could 
happen on an electronic basis, it would certainly ease the 
situation.
    Of course, looking back, it is impossible to say what 
electronic system could have prevented this glitch, but 
certainly going forward, that is one of the things we are 
looking to do in strengthening the electronic platform for the 
NICS system.
    Also, in terms of the examiners, making sure that they have 
time to conduct these examinations and to provide a response to 
the dealers who call in. Most of this is still done over the 
phone. Most of the responses are still handled very, very 
quickly. Often the dealer will get an answer in that first 
phone call. But the difficult cases, the ones where you really 
do have to look and search and make sure that this individual 
is not prohibited--those often do take time.
    Now, still, it is a system of which we are incredibly 
proud. Over 2 million people have been prohibited from 
purchasing firearms as a result of NICS background checks, and 
we think that that is frankly a benefit to the country and to 
public safety. So we are incredibly proud of the system but we 
really do want to make it the best system that we can.
    Senator Capito. Well, and I want to pledge to work with you 
to make sure that the fine folks in West Virginia who are doing 
the NICS system and the background check have the best 
technology, have enough staff to help them. It is a very 
stressful position in a lot of ways for many of them, and I 
hope that with this additional hiring, we will eliminate some 
of these loopholes that people are able to fall into and 
prevent those who should not from getting a firearm.
    Thank you very much.
    Attorney General Lynch. Thank you, Senator.
    Senator Shelby. Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Madam Attorney General, you certainly look well and as if 
you are not worn out by the job. I have not seen you since your 
confirmation. So it is very good to see you again.
    Attorney General Lynch. Thank you.
    Senator Feinstein. I am glad you stressed that the 
President's executive order largely clarifies existing law, 
which clarification should make enforcement easier and 
enforcement is what people seem to want of existing law.

                               ATF HIRING

    However, you do have to have people to enforce existing 
law. As you have said twice in your remarks and once in your 
written remarks, ATF is requesting $35.6 million for an 
additional 200 special agents and industry operation 
investigations through ATF. But my understanding is that ATF is 
going to have the retirement of 544 special agents this year. 
They are eligible to retire. I cannot say how many are going to 
retire. But it certainly appears to me that with ATF being an 
enforcement agency, you are going to lose people and that that 
is going to have an unfortunate effect.
    Do you have any comment on that?
    Attorney General Lynch. Yes, Senator. Thank you for raising 
that important issue.
    ATF, like so many agencies, is facing a situation where so 
many of the talented agents are soon able to retire. We 
certainly hope that they will not, but we know that we will 
lose some.
    I think it is also important to note that the request to 
would bring an additional 200 agents and investigators on board 
still would not increase the size of the agency. It is not a 
request for additional full-time equivalents (FTEs), so to 
speak, but the budget to hire to fill the existing slots that 
are vacant now and will be soon be vacant.
    Senator Feinstein. Well, let me say this. I speak for a 
State that is now over 40 million people, by census 39.1 
million and probably another 2 million that avoid the census. 
We want the enforcement of existing law. We want to see that 
ATF is staffed and able to do it. And this is the subcommittee 
that is responsible to see that ATF is funded sufficiently to 
enforce every day laws. So I am going to do everything I can on 
this committee to see that that amount is raised so that you 
get the sufficient number. So I would appreciate all of the 
data that you can provide me with. Thank you.

                   NATIONAL FIREARMS ACT REGISTRATION

    The second thing is machine guns and other fully automatic 
weapons, as well as weapons like short-barreled shotguns. These 
are all regulated under the National Firearms Act. And it has 
been reported that individuals have been able to avoid 
regulation under the Firearms Act by applying to acquire these 
dangerous guns through trusts or corporations rather than as 
individuals. The number of applications for such transfers has 
increased from fewer than 900 applications in 2000 to more than 
90,000 applications in 2014. Now, the trusts are obviously 
being used not to have to register them or not to have to have 
a background check or not to have to buy them through a 
licensed firearm dealer.
    So how has ATF managed to keep up with this massive 
increase in the National Firearms Act (NFA) applications 
despite flat manpower levels?
    Attorney General Lynch. Well, Senator, the reality is that 
it is difficult to keep up with those applications. For 
National Firearms Act weapons, as you indicated, the silencer, 
short-barrel shotguns, and machine guns, there is an 
application process similar to a background check, but an 
application process. And it also typically at this point in 
time requires what is called a law enforcement officer 
certification. A local law enforcement officer has to certify 
the person can do that.
    One of the regulations promulgated, after going through the 
notice and comment period, is a regulation that requires 
individuals who are seeking to purchase these weapons under the 
National Firearms Act to undergo a background check, whether 
they are using a trust or any other legal entity or whether 
they are a standalone person. Right now, if an individual seeks 
to purchase the silencer, a short-barrel weapon, they have to 
undergo an application process similar to a background check. 
When they use a trust, they do not. The current regulation that 
has gone through notice and comment, that is being promulgated 
as a final rule, essentially closes that loophole and says that 
individuals using a trust or a legal entity stand in the same 
position as individuals standing alone.
    What it also does is removes the law enforcement officer 
certification requirement because that essentially has been 
obviated by the background check, and that was an additional 
delay on the license. So with the information that we are 
getting from the background checks, individuals, whether they 
are using a trust, a legal entity, or whether they are applying 
as individuals, will have the same requirements and undergo the 
same level of scrutiny before buying a National Firearms Act 
weapon. And that is one of the rules that was promulgated 
within this past week as well.
    Senator Feinstein. Thank you very much. I am delighted that 
you are on top of this. Of the 25 attacks, of the more than 
four people killed in the last 10 years, California has six of 
them. So I think watching the machine guns and those things 
that can be used to attack others is really important, and I 
thank you very much. And I will do everything I can to be of 
help in seeing that you get more ATF agents.
    Attorney General Lynch. Thank you, Senator.
    Senator Shelby. Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman. And thank you 
Attorney General Lynch so much for being here today.
    Attorney General Lynch. Good morning, Senator.
    Senator Boozman. I have a number of concerns with the way 
the President continually overreaches his authority, and 
something that really concerns me is the executive actions in 
this upcoming rule, a proposal by the Social Security 
Administration to include folks who have fiduciaries into the 
NICS program. This is certainly not clarifying existing law. 
This would prohibit them from the constitutional Second 
Amendment right, not based on due process but only on the fact 
that they requested a family member or a friend to assist them 
with their finances.

                             MENTAL HEALTH

    I am concerned that your Department is fine-tuning or 
revising some of the definitions regarding being adjudicated as 
a mental defective and committed to a mental institution to now 
more broadly cover folks who seek treatment. I am concerned 
because these were not changed through Congress and now you 
couple it with the upcoming Social Security rule. What are we 
going to have?
    Please tell me what your Department's plans are here, what 
is the Social Security Administration planning to do, and who 
will be entered into the NICS based solely on Social Security 
records.
    Attorney General Lynch. Senator, thank you for raising that 
important issue.
    As you know, the current Gun Control Act does prohibit 
individuals who have been adjudicated in certain ways involving 
their mental health from possessing firearms. And under current 
law, Federal agencies are required to submit information to 
NICS about individuals who fall into those categories: 
involuntary commitment and adjudications of the type that you 
were discussing.
    The Social Security Administration is beginning a process 
of seeking comment through a rulemaking process in order to 
clarify who within the Social Security Administration 
adjudication system should also fall into that category as 
well. For example--I will withdraw that because that is not an 
example. But they currently are not providing the information.
    The questions that you raise are very real and salient 
ones, and the Social Security Administration's process, which 
is just beginning, is designed to, in fact, solicit comment, to 
get input as to which types of adjudications should, in fact, 
be provided to NICS and which should not because, as we know, 
the issue of mental illness is not one that subjects every 
individual who has that issue to a prohibition from obtaining a 
firearm. And so it is important that we clarify, as other 
agencies have, which types of adjudications and which types of 
issues would require those records to come to NICS. So the 
Social Security Administration is beginning that process, and 
certainly we look forward to providing whatever input and 
guidance they request from the Department of Justice on that as 
well.
    One of the things that will, of course, be part of that is 
our Veterans Administration (VA). The VA already provides 
records. But one of the things that will part of that process 
is making sure that any individual who may find themselves in 
that situation receives notice that that is a possibility. That 
is something that would be consistent with existing law and the 
Second Amendment, and also that there is a way for an 
individual to apply to have their rights restored, not just to 
own and possess a firearm, but anything else that might be a 
collateral consequence of a particular type of adjudication.
    At this point, I cannot predict for you what types of 
adjudications the Social Security Administration would decide 
should be provided to the NICS system. We certainly look 
forward to them going through the comment process and refining 
that area.
    Senator Boozman. Good. Well, thank you, because that really 
is a real concern.

                           EQUITABLE SHARING

    I have heard from a number of police departments in 
Arkansas who have had equitable sharing funds recently removed 
from their accounts due to the Department of Justice's (DOJ) 
(mismanagement of the budget. In a letter from your Department 
dated December 21st, 2015 regarding the asset forfeiture 
program, it states that DOJ has already begun implementing cost 
reduction measures. What are the measures and when do you 
envision the equitable sharing program to be reinstated? Can 
you explain the benefits of this program to the American 
people?
    I say this because it is an important program and we are so 
concerned about violent crime. This is one of the tools that we 
are using very effectively in order to decrease that and fight 
that battle.
    Attorney General Lynch. Well, thank you for the question, 
Senator, because I share your concern and also our regard for 
the strong working relationship that the Federal Government has 
with our State and local counterparts. Certainly as a U.S. 
Attorney, I was a direct beneficiary of their talent and their 
expertise, and now as Attorney General, I do all I can to keep 
those relationships strong and vital because they are essential 
to protecting the American people.
    With respect to the equitable sharing issue that you have 
raised, there had been some budget issues there. There was a 
rescission from the Department's Asset Forfeiture Fund made in 
the last fiscal year. I do not know the exact time of it. And 
that essentially limited our ability to provide funds pursuant 
to equitable sharing. We are looking forward to restoring those 
payments as soon as the receipts to the asset forfeiture fund 
allow. We very much feel that equitable sharing is an important 
law enforcement tool.
    I know that there is a great deal of discussion about asset 
forfeiture in general. We have been working with Congress to 
make sure that we retain this important aspect of it while also 
addressing those concerns as well.
    Senator Boozman. Thank you, Mr. Chairman.
    Senator Shelby. Senator Baldwin.
    Senator Baldwin. Thank you, Mr. Chairman and Vice Chairman 
Mikulski, for holding this important and timely hearing.
    Violence continues to plague our communities. In my home 
State of Wisconsin, gun homicides reached their highest point 
in a decade last year in the City of Milwaukee. And while we 
finally saw a notorious gun dealer, once called the number one 
seller of crime guns in America, start to clean up its act and 
be held liable for selling firearms used to injure cops, other 
gun dealers have rushed in to take its place.
    I hope that all of my colleagues can agree that we can and 
must do more, more to address this critical issue and more to 
keep our communities safe.
    Well, I am a gun owner, and I support and respect the 
Second Amendment. But at the same time, I am very frustrated 
that the Senate has been unable to advance common sense and 
bipartisan measures to bolster both the enforcement of our 
existing gun laws but also to pass additional safety 
provisions. And in the absence of leadership on this important 
issue by the Congress of the United States, I have to say I 
applaud the President for taking the small steps to strengthen 
the enforcement of existing Federal gun laws.

                           ILLEGAL GUN SALES

    In our limited time, I want to call your attention to two 
Wisconsin matters, one that I noted in my preface, which is 
that Milwaukee was home for years to a notorious rogue gun 
shop, Badger Guns, which in one 2-year period alone was the 
source of weapons used to shoot and wound six Milwaukee police 
officers. In 2005, it was the top seller of crime guns in the 
entire country, according to sources that I have seen. But the 
shop, which first opened in 1987, had been found in violation 
of Federal firearms laws by the ATF as early as 1989, and 
subsequent inspections uncovered additional violations. A 2006 
recommendation by Federal investigators that its license be 
repealed went unheeded, and it was not until 2011 that the shop 
lost its ability to sell guns.
    Despite an active role by the ATF in monitoring this 
facility, this store, it clearly put--it was allowed to put 
guns into the hands of dangerous criminals again and again and 
again.
    So you made it clear in your testimony that the President's 
actions are not wholesale solutions. We understand that. But I 
would like to hear from you how the steps that we are 
discussing today, including support for more ATF personnel, 
might have helped stop a bad actor like Badger Guns and what 
more that Congress can do to prevent stores like this from 
contributing to gun violence.
    Attorney General Lynch. Well, thank you, Senator.
    Certainly separate and apart from the recommendations I 
made to the President, as the subcommittee is aware, it is 
already a crime to knowingly sell a gun to someone who is 
prohibited. And what I will say is that ATF is dedicated to 
enforcing that law as well. And so where there are gun 
dealers--and it is a very small percentage of them that are in 
the category that you discussed--ATF does take enforcement 
actions there. Often the guns through NIBIN or through other 
means we discover come from the shops, as you mentioned. We 
learn from investigations of shootings of law enforcement 
officers, of civilians where the guns tend to come from, and 
that supports us.
    It is impossible to look back, unfortunately, and sort of 
recreate an investigative trail and say what could or should 
have been done in that instance because I am mot familiar 
enough with that situation.
    What I can say is that as part of the enforcement of the 
existing laws, ATF takes situations such as you mentioned, 
very, very seriously. It is, indeed, not the majority of the 
licensed firearms dealers in America. It is a very small 
minority of them. But where we find a situation where a gun 
shop, such as you mentioned, has that type of record, it is 
something that would be subject to enforcement actions.
    Senator Baldwin. Well, I thank you. Obviously, continuous 
operation from 1987 to 2011 draws some extremely significant 
concerns, and so obviously we want to see more swift action in 
cases like this moving forward.
    I have run out of time but hope to submit for the record an 
additional question regarding an ATF operation in Milwaukee 
that raised significant concerns in the last couple of years.
    Attorney General Lynch. Thank you, Senator.
    Senator Shelby. Senator Reed.
    Senator Reed. Well, thank you very much, Mr. Chairman, and 
thank you, Madam Attorney General, for your leadership and for 
your testimony this morning.

        ACQUISITION OF FIREARMS BY TRUSTS AND CORPORATE ENTITIES

    One of the benefits of coming in late is getting to listen 
to the probing questions of my colleagues, and one of them was 
Senator Feinstein's question about the trust and corporations 
that over the last 15 years apparently have been more active in 
acquiring weapons. And just a few questions.
    One is that the proposal by the President would sort of 
pierce the corporate veil and require the individuals who are 
actually obtaining these weapons to run a background check. Is 
that correct?
    Attorney General Lynch. That is correct, sir. Yes, Senator.
    Senator Reed. And are generally these corporations and 
trusts set up to avoid limitations on owning automatic weapons, 
machine guns, or are they applying increasingly with just 
handguns and what we would consider to be personalized weapons?
    Attorney General Lynch. Well, typically we see trusts and 
other corporate entities being used to purchase the weapons 
that are not handguns that typically one can go to a dealer and 
purchase fairly quickly and easily, but weapons that are under 
the National Firearms Act. They usually are the short-barrel 
shotguns, certain types of machine guns, as well as silencers.
    Senator Reed. It just strikes me somewhat ironically 
because the Second Amendment is seen--and I think appropriately 
so--as an individual right that Americans have, and to create 
corporations and trusts to be--and it is not alone in this 
area. I happen to have been a lawyer myself for little bit. 
Corporations and trusts are often created to evade or illegally 
do something that directly cannot be done. So I think this is a 
very sensible step and reflects the thoughtful way that you and 
the President have proposed these very sensible improvements on 
background checks.

                 INTERPRETING EXISTING COURT DECISIONS

    Another issue that was raised by my colleague from 
Oklahoma--and a very good one too--is the issue of ``engaged in 
the business.'' And from your answer, you rejected a 
categorical, arbitrary number of weapons, and you reflected the 
opinions of the courts interpreting the Constitution. I assume 
that is the rationale, to ensure that this is constitutionally 
consistent with the court decisions.
    Attorney General Lynch. Yes, Senator. We essentially have 
crafted the guidance to reflect what the courts have said 
defines who is engaged in the business of dealing firearms. And 
the courts have said that there is no set number. Certainly 
there can be large numbers of firearms transferred, but if 
someone in fact has a collection and is simply selling that, 
that would not make them subject to the licensure requirement. 
But if someone may be selling only a few guns but if they sell 
them repetitively, they hold themselves out as a dealer, that 
is a very, very different scenario. Essentially it is not 
limited to where one operates but to what one does that 
determines whether one is a dealer or not. So we have collected 
the guidance based on court cases around the country into a 
document that we hope will be clear and easily understandable 
for people who have those questions.
    Senator Reed. So this is not, as I say, an arbitrary 
decision. It is a reflection of the courts' view on the Second 
Amendment rights of the individual Americans.
    Attorney General Lynch. Yes, Senator.
    Senator Reed. One other general issue too is that the 
effect of these regulations overall clearly in a very gross 
sense two populations of people who are exercising their rights 
for self-defense, for recreation, for hobbyists, et cetera, and 
people who are trying to obtain a weapon for illicit purposes. 
The effect of the President's regulations on both groups--my 
hope is that no impediments for those who honestly seek the 
legitimate use of firearms with the right to do so and 
reasonable constraints on those people who have illicit 
motives. Is that your----
    Attorney General Lynch. That is correct, sir.
    Senator Reed. Thank you very much, Madam Attorney General.
    Attorney General Lynch. Thank you, Senator.
    Senator Shelby. Senator Murphy.
    Senator Murphy. Thank you very much, Mr. Chairman. Thank 
you, Attorney General, for being here with us today.

           NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM

    I wanted to, before I get into a question or two about the 
guidance, just continue on this line of questioning about 
resources. I think we talked a lot about ATF resources, but I 
wanted to explore a little more deeply about resources within 
the NICS system itself. As we start to game out our budget for 
the 2016-2017 appropriations year, what should we be looking at 
in terms of the appropriations necessary for the Department of 
Justice to be able to do all of the things that we contemplate 
NICS has to do in order to keep up with the increasing number 
of applications but also the increased coordination that we 
want to see to make sure that we have all of the records 
uploaded onto that system?
    Attorney General Lynch. Yes, Senator. Thank you for that 
question. I think it is a very timely one as we look to invest 
in a system that is in fact one of our first lines of defense 
against keeping guns out of the hands of those who should not 
have them.
    Essentially for fiscal year 2015, NICS performed over 23 
million background checks. That number is increasing. In just 
this December alone, they received over 3 million requests. 
That is the highest number of requests on a monthly basis since 
the month after the Sandy Hook shooting.
    For fiscal year 2016, our estimates are that we would need 
$121 million to run NICS.
    We are asking for an additional $35 million for fiscal year 
2017 on top of that base figure. That would allow us to 
maintain the additional positions we hope to add this year. We 
may not be able to add all of them right away. As I indicated, 
there is time required to bring Federal employees on board. It 
would also help us improve the electronic platform of NICS.
    Our goal is to have the NICS system operational on a 24-
hour, 7-day a week basis by the end of this year. That will 
require a great deal of information technology investment and 
support, but that is our goal.
    Senator Murphy. And for those whose focus is simply on 
enforcing existing law, that request is based upon your belief 
that you need that level of appropriations in order to enforce 
the law that is on the books today.
    Attorney General Lynch. That is correct, Senator. In order 
to provide for the accurate and efficient operation of the NICS 
system within the 3-day period that has been set forth by 
Congress in order to allow us to process the applications in a 
timely fashion and provide the information that dealers 
request, that is the basis for this request.

            GUIDANCE ON THE INTERPRETATION OF EXISTING LAWS

    Senator Murphy. Mr. Chairman, I hope that we could enter 
into the record--I do not think it has been done yet, but I 
would like to enter into the record the actual guidance that is 
the subject of this hearing, if there is no objection. I wanted 
to enter the guidance into the record.
    Senator Shelby. Without objection.
    [The information follows:]
    
The guidance set forth herein has no regulatory effect and is 
not intended to create or confer any rights, privileges, or 
benefits in any matter, case, or proceeding, see United States 
v. Caceres, 440 U.S. 741 (1979).
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

The guidance set forth herein has no regulatory effect and is 
not intended to create or confer any rights, privileges, or 
benefits in any matter, case, or proceeding, see United States 
v. Caceres, 440 U.S. 741 (1979).
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Senator Murphy. Thank you, Mr. Chairman.
    You know, I would hope that those that have an opinion, 
especially those that have a strong opinion, on this guidance 
would actually take the time to read it because our second 
panel is going to include individuals who are going to call it 
an unwarranted assault on the Second Amendment, an effort to 
intentionally intimidate and harass law-abiding citizens. There 
will be those that call it patently unconstitutional. I hope 
people will read through what this guidance actually says.
    In summary, it is five points.
    One, that the Federal law requires that persons who are 
engaged in the business of dealing in firearms be licensed by 
the ATF. That is a simple recitation of existing law.
    Second, that you can be engaged in the business of dealing 
in firearms regardless of the location in which the firearm 
transaction is conducted. I am not sure that anyone would 
dispute that fact.
    Third, that determining whether you are engaged in the 
business requires you to look at specific facts and 
circumstances of your activities. Again, that seems patently 
clear.
    Fourth, that as a general rule, you need a license if you 
repetitively buy and sell firearms with the principal motive of 
making a profit, but if you only make occasional sales of 
firearms, you do not need to be licensed, a clear restatement 
of existing law.
    And then fifth, a simple explanation about what existing 
courts have already said to interpret the law.
    And so to the extent that a lot of the objections may be 
over this fifth key point, let me just ask you to state clearly 
for the record. This fifth point on your page of key points--
that is simply a recitation of existing court interpretations 
of the underlying law. There is nothing in there that is a new 
statement of law. That simply summarizes what existing courts 
have found relative to who is required to have a license.
    Attorney General Lynch. That is correct, Senator.
    Senator Murphy. And currently there is a difference of 
opinion. There have been different interpretations by different 
courts as to the interpretation of that law.
    Attorney General Lynch. Yes, Senator. That is also correct.
    Senator Murphy. And so for those who are trying to 
determine whether they fall under the law or not, the existing 
court precedent may be confusing or sometimes hard to track 
down.
    Attorney General Lynch. Yes, it is. It is often hard to 
track down. And also, it is a lot to ask the average citizen to 
do a Lexis/Nexus search and do legal research and determine 
what the courts have said about how they are operating. And in 
fact, what often happens is that individuals who are operating 
either at gun shows or smaller sales or even out of other 
locations will reach out to ATF and they have questions. They 
say, ``this is what I am doing and I do not know if it means 
whether I need to apply for a license or not.'' They ask those 
questions in person when they see the investigators at gun 
shows. They call in with those questions.
    And so our hope is that this guidance, along with the 
educational program that ATF will be beginning, which is 
providing the information to people to allow individuals to 
have some clarity about this issue. We do not assume that 
everyone is a lawyer or even wants to be. But they do have this 
requirement if they are engaged in the business of dealing in 
firearms. And it is our hope that this will ease compliance for 
those individuals who are, in fact, seeking to comply with the 
law.
    And for those individuals who have no intention of 
complying with the law, this will put them on notice and will 
remove the defense that ``this is too confusing'' or ``I had no 
idea that I was falling in this category.''
    It also allows people who are hobbyists and collectors to 
gain clarity as well about their position because they need not 
apply for a license.
    Senator Murphy. Thank you, Mr. Chairman.
    Senator Shelby. Thank you.
    We have reached the point of basically concluding our first 
panel. Any subcommittee members who have additional questions 
for the Attorney General may submit them for the official 
hearing record, and we would request, Madam Attorney General, 
that the Department of Justice provide responses within 30 
days. You generally do. Thank you.
    Senator Mikulski. Mr. Chairman, I am sorry. Go ahead.
    Senator Shelby. Thank you for your appearance here today, 
for your time.
    Senator Mikulski.
    Senator Mikulski. Mr. Chairman, I must excuse myself from 
the second panel. I have several Maryland constituents that we 
scheduled to meet on the issue of hate crimes, for which they 
have been targeted. I need to participate in that.
    I want to welcome the witnesses to the second panel. I have 
already read their testimony. A particular acknowledgement for 
Mr. Barden and what he brings to the table, as well as the 
other practitioners of law. And we look forward to really 
moving on this agenda to resource the agencies to enforce the 
laws we have on the books and to find common ground on the 
President's executive orders.
    Senator Shelby. Thank you, Senator.
    As the Attorney General departs here, I invite our second 
panel of witnesses to join us at the table.
    Senator Mikulski. Mr. Chairman, Senator Murphy will sit in 
my stead at the committee.
    Senator Shelby. Thank you.
    As our second panel settles in, I would like to make some 
brief introductions for the next four witnesses.
    First, I welcome the Honorable Luther Strange, Attorney 
General from my State of Alabama. Attorney General Strange is 
recognized as a national leader in advancing the causes of 
Federalism and a limited government by fighting the increasing 
unconstitutional overreach of the Federal Government and its 
assault on individual liberty.
    He currently serves on the Executive Committee of the 
Republican Attorney Generals Association. He is also the 
chairman of the southern region of the National Association of 
Attorneys General.
    Next we will be joined by the Honorable Ken Cuccinelli, the 
former Attorney General of Virginia. In that role, he 
challenged many of the Federal Government's attempts to 
overreach its constitutional powers. Today as a private 
attorney with over 20 years of experience as a litigator, Mr. 
Cuccinelli now serves as a founding partner and attorney for 
the United Self Defense Law Firm.
    Third, we welcome Mr. Mark Barden, the founder and managing 
director of Sandy Hook Promise, a national nonprofit 
organization founded and led by several family members whose 
loved ones were killed at Sandy Hook Elementary School on 
December 14, 2012. After tragically losing his son Daniel that 
day, Mr. Barden has dedicated himself to bringing people 
together to find sensible solutions that will prevent future 
tragedies and spare other families the pain of losing a child 
to gun violence.
    Finally, we will have Dr. Joyce Lee Malcolm joining us 
today from George Mason University School of Law where she 
works as the Patrick Henry Professor of Constitutional Law and 
the Second Amendment. Dr. Malcolm is a historian and 
constitutional scholar active in the area of constitutional 
history focusing on the development of individual rights in 
Great Britain and America. She has written numerous books and 
articles on gun control, the Second Amendment, and individual 
rights.
    Professor Malcolm has previously taught at Princeton 
University, Bentley College, Boston University, Northeastern 
University, and Cambridge University.
    I want to thank all of you for joining us here today, and 
we will start with Attorney General Strange. Welcome to the 
committee.
STATEMENT OF HON. LUTHER STRANGE, ATTORNEY GENERAL, 
            STATE OF ALABAMA
    Mr. Strange. Thank you, Senator Shelby, Senator Murphy. I 
thank Vice Chairman Mikulski as well for inviting me here 
today. I am honored to accept your invitation to speak about an 
issue of importance to all Americans, reducing gun violence 
while ensuring that the fundamental right of law-abiding 
citizens to bear arms is not infringed.
    I wish to commend your subcommittee for convening this 
panel to explore how best to balance these goals because they 
are not mutually exclusive.
    My duty as Attorney General is to enforce the law, and I am 
here today as the chief law enforcement officer to deliver the 
man on the street, the law enforcement officers on the streets 
perspective on this issue. For the last 5 years, I have 
witnessed firsthand as Attorney General the challenge of 
safeguarding the gun rights of law-abiding citizens while also 
working to deny law breakers the ability to use firearms to 
commit crimes.
    In those 5 years, I have learned an important lesson. 
Further limiting the ability of responsible citizens to buy a 
gun will not keep criminals from getting one.
    In fact, after I learned I would be testifying before this 
committee, I reached out to local police chiefs soliciting 
their advice on what is working and what is not working in 
stopping gun violence on the street. I wanted to be able to 
carry their message, based on decades of experience on the 
front lines of this fight, to this committee. These are the men 
and women who are the first line of defense or the first people 
on the scene of a terrorist attack or a violent event, active 
shooter situation. Again and again, I heard the same thing from 
these men and women.
    Number one, enforce the laws already on the books.
    Number two, prosecute criminals for gun-related crimes.
    Number three, stop releasing violent criminals from jail 
before their sentences are completed.
    They directed their concerns squarely at the Federal 
Government which they see as failing to uphold its commitment 
to hold criminals accountable for gun crimes. And they have 
their doubts about the promises they hear coming out of 
Washington.
    As one police chief put it, ``If anyone of any political 
stripe whatsoever was sincerely concerned about gun violence, 
they would take a no-holds-barred approach to enforcing the 
seemingly endless laws relating to guns that are already on the 
books.''
    I do not think there is anyone in America whose heart does 
not break over the news of mass shootings that take innocent 
lives. There is no one in this country who opposes making our 
streets safer. We all want to do everything we can to prevent 
more gun crimes. But we also must be sure that political 
actions taken in the name of solving the problem are grounded 
in facts. They must be vetted by representatives of the 
American people and they must not undermine our constitutional 
rights.
    Two weeks ago, the President announced a series of 
executive actions he asserted would reduce gun violence. And 
while he may have had the best of intentions, the law 
enforcement officers in my State and I dare say around the 
country believe these actions will not have a meaningful 
impact.
    The centerpiece of the President's order, expanding 
background checks to close what some would call the gun show 
loophole, is not only an unwarranted assault on the Second 
Amendment, but it also will be ineffective in making a 
significant contribution toward reducing overall gun crimes. It 
will be ineffective because less than 1 percent of illegal gun 
purchases are determined to come from gun shows and fewer still 
are involved in violent crimes.
    It is our goal to reduce crime and to make our streets 
safer. The President's actions will not accomplish that.
    The only practical impact of the President's gun show 
provision in my view will be to intimidate or frighten law-
abiding citizens so that they will refrain from selling their 
guns at all for fear they will be prosecuted for failure to 
register as a firearms dealer.
    So instead of new rules and regulations, a better approach 
would be to enforce the laws we have by increasing the 
efficiency of and funding for the existing National Instant 
Check System, the NICS system. It is critical to ensuring that 
guns do not end up in the wrong hands. And I think that is the 
sentiment shared by all the members of the committee on both 
political sides. We can do better with that system. With more 
funding and support, the States can ensure that every felony 
conviction is reported to the system because if the information 
is not in the system, the system cannot work. And just as 
importantly, when the system does work, we find felons 
attempting to buy guns and we prosecute them.
    Using the same laws that are on the books today, the Bush 
administration secured 35 percent more Federal gun convictions 
in 2004 and 2005 than the Obama administration did in 2014. 
With the exception of a slight uptick in 2012, Federal gun 
convictions have fallen every year President Obama has been in 
office. If we are not enforcing our laws intended to keep 
criminals from getting guns, then adding new executive orders 
on top of those laws, even if well designed, will accomplish 
nothing.
    At the same time, the Federal Government must do more to 
provide law enforcement tools they need to do their job. And I 
hear from sheriffs, including a friend from the State of 
Alabama, who I am sure you are familiar with, the sheriff of 
Calhoun County, former president of the National Sheriffs' 
Association, who told me what he needs is more resources from 
the Federal Government, not fewer. In fact, he has recently 
suffered the loss of assets to protect his officers in very 
dangerous situations.
    So we can do more. Remember the sacrifice of our men and 
women in law enforcement. I think sometimes we lose sight, 
particularly here in Washington, of the acts of a few that tar 
the whole, and we need to support our men and women in blue.
    I have had the sad duty, as I know you have, Senator, and I 
am sure Senator Murphy and other members of this committee, to 
attend the funerals of officers who have fallen in the line of 
duty either through the result of a criminal, a mentally ill 
person, or a gang member, et cetera. Mental illness is a 
tremendous concern, and I applaud President Obama for focusing 
on the mental illness issue. My concern is that it should not 
be done in the manner that he is doing it, but rather should be 
debated by Congress and this committee to be done in a 
thoughtful, thorough way.
    And in conclusion, what we do not want to see, if I may, 
Senator, is a veteran coming back from Iraq or Afghanistan who 
has concerns, wants to talk to a counselor, and finds himself 
unable to purchase a gun. The same thing for someone who may 
turn over his affairs to a family member to handle and ends up 
losing their Second Amendment rights.
    So I thank you again for allowing me to be here. Our Second 
Amendment rights can be protected at the same time we keep 
Americans safe. Thank you.
    [The statement follows:]
               Prepared Statement of Hon. Luther Strange
    Chairman Shelby, Vice Chairman Mikulski, and members of the Senate 
CJS subcommittee, I am honored by your invitation to speak today about 
an issue of importance to all Americans--reducing gun violence while 
ensuring that the fundamental right of law-abiding citizens to bear 
arms is not infringed.
    I wish to commend your subcommittee for convening this panel to 
explore how best to balance these goals. They are not mutually 
exclusive.
    My duty as attorney general is to enforce the law. I don't have the 
ability to pick and choose which laws to uphold because of political 
pressure or personal preference. As the chief law enforcement official 
of the State of Alabama for the last 5 years, I have witnessed 
firsthand the challenge of safeguarding the gun rights of law abiding 
citizens while also working to deny law breakers the ability to use 
firearms to commit crimes.
    And in those 5 years I have learned an important lesson. Further 
limiting the ability of responsible citizens to buy a gun will not keep 
criminals from getting one.
    In fact, after I learned I would be testifying before this 
subcommittee, I reached out to local police chiefs soliciting their 
advice on what is working and what is not in stopping gun violence on 
the street. I wanted to be able to carry their message, based on 
decades of experience on the front lines of this fight, to this 
subcommittee. Again and again, I heard the same thing.

  --Enforce the laws already on the books
  --Prosecute criminals for gun-related crimes
  --Stop releasing violent criminals from jail before their sentences 
        are completed

    They directed their concerns squarely at a Federal Government which 
they see as failing to uphold its commitment to hold criminals 
accountable for gun crimes. And they have their doubts about the 
promises they hear coming out of Washington.
    As one police chief put it, ``If anyone of any political stripe was 
sincerely concerned about gun violence they would take a no-holds-
barred approach to enforcing the seemingly endless laws relating to 
guns that are already on the books!''
    I don't think there is anyone in America whose heart doesn't break 
over the news of mass shootings that take innocent lives. There is no 
one in this country who opposes making our streets safer. We all want 
to do everything we can to prevent more gun crimes. But we must also be 
sure that political actions taken in the name of solving the problem 
are grounded in facts. They must be vetted by representatives of the 
American people, and they must not undermine our constitutional rights.
    Three weeks ago President Obama announced a series of Executive 
actions he asserted would reduce gun violence. But while he may have 
the best of intentions, the law enforcement officers in my State tell 
me these actions will have not have a meaningful impact.
    The centerpiece of the president's order--expanding background 
checks to close what some call the gun show loophole--is not only an 
unwarranted assault on the Second Amendment, but it will also be 
ineffective in making a significant contribution toward reducing 
overall gun crimes.
    It will be ineffective because less than 1 percent of illegal gun 
purchases are determined to come from gun shows and fewer still are 
involved in violent crimes. If our goal is to reduce crime and make our 
streets safer, the President's actions will not accomplish it.
    The only practical impact of the President's gun show provision 
will be to intimidate and frighten law abiding citizens so that they 
will refrain from selling their guns at all for fear they will be 
prosecuted for failure to register as a firearms dealer.
    Instead of new rules and regulations, a better approach would be to 
enforce the laws we have by increasing the efficiency of and funding 
for the existing National Instant Check System. The NICS system is 
critical to ensuring that guns don't end up in the wrong hands. And yet 
we can do better. With more funding and support, States can ensure that 
every felony conviction is reported to the system. Because if the 
information isn't in the system, the system can't work. And just as 
importantly, when the system does work and we find felons attempting to 
buy guns, we must prosecute them.
    Using the same laws which are on the books today, the Bush 
administration launched the Project Safe Neighborhoods initiative, a 
program piloted in Richmond by now FBI Director James Comey. That 
program had a zero-tolerance, must prosecute requirement for felons 
caught in possession of a firearm. Because of this program, the Bush 
administration secured 35 percent more Federal gun convictions in 2004 
and 2005 than the Obama administration did in 2014. With the exception 
of a slight uptick in 2012, Federal gun convictions have fallen every 
year President Obama has been in office.
    There's a lesson there. If we are not enforcing our laws intended 
to keep criminals from getting guns, then adding new Executive orders 
on top of those laws, even if well-designed, will accomplish nothing.
    At the same time, the Federal Government must do more to provide 
law enforcement the tools they need to do their jobs. We need a 
Federal-State partnership, whether it is through increased training, 
access to better equipment, or simply providing funding to prosecute 
crimes.
    I recently heard from Calhoun County Sheriff Larry Amerson, former 
president of the National Sheriffs' Association and one of the finest 
law enforcement officers in Alabama. Too many times, he's had to visit 
officers in the hospital with gunshot wounds or attend funerals of 
officers killed in the line of duty. He knows the importance of this 
issue. And his message to this subcommittee is give officers the tools 
they need to do their jobs. Recent actions here in Washington have 
prevented Sheriff Amerson from getting the equipment he needs to keep 
his officers safe. He wrote to me, ``Now we have no protection. We 
cannot even get surplus military helmets.''
    Finally, we need to do more at the State and Federal level to 
address issues related to mental health. While I may not agree with the 
approach, I was glad to see that President Obama made a focus on mental 
health a priority in his Executive actions. There is no doubt that 
mentally ill individuals have been responsible for many violent gun 
crimes in our country and they represent a particular threat to law 
enforcement who often are unaware of their condition. I've seen it 
firsthand.
    In 2012, I attended the funeral of a Baldwin County, Alabama 
Sheriff's deputy who lost his life in the line of duty. He had 
responded to a call in which a mentally ill man was acting aggressively 
toward family members. He pulled a gun and fired on two deputies, 
killing one and wounding the other.
    But while mental illness is a serious concern, it is a problem that 
cannot be addressed through an Executive order. There is no quick fix. 
We must ensure that while instituting any enhanced reporting 
requirements that we do not deny the constitutional rights of those who 
might not truly be mentally incompetent. Instead, there should be a 
procedure in place to protect the rights of the mentally ill while 
ensuring that they are not a danger to themselves or society.
    And we must ensure that in focusing on mental illness, we do not 
inadvertently discourage people from seeking help for their problems. 
For instance, a soldier who returns home from war should not lose the 
right to bear arms that he fought to defend simply because he seeks 
help for post traumatic stress disorder (PTSD) or other psychological 
problems. A person on Social Security should not lose their right to 
bear arms simply because they decide to assign a family member or 
friend to handle their affairs. These are the subtle nuances that any 
attempt to address this problem will bring. And to handle them 
correctly will require a bipartisan effort, led and debated here in 
Congress.
    In summation, Mr. Chairman, I join a majority of Americans in 
supporting legitimate efforts to curb gun violence in our land. I also 
follow the recommendations of law enforcement in my State that the most 
effective way to address gun crimes is to enforce the abundant existing 
laws we already have, while giving law enforcement the tools they need 
to do their jobs. As Sheriff Amerson has said, ``Many people opposed to 
more gun laws support enforcing existing laws. Why not try it?''
    Americans' right to bear arms should be protected and we can do 
that and protect Americans from gun crimes by enforcing the law.
    Thank you.

    Senator Shelby. Mr. Cuccinelli.
STATEMENT OF HON. KEN CUCCINELLI, FORMER ATTORNEY 
            GENERAL, COMMONWEALTH OF VIRGINIA; FOUNDING 
            PARTNER AND ATTORNEY, UNITED SELF DEFENSE 
            LAW FIRM
    Mr. Cuccinelli. Mr. Chairman, members of the subcommittee, 
in addition to being a former Attorney General and a current 
Second Amendment lawyer, I also spent 12 years working in the 
mental health arena as an attorney. So I have that perspective 
as well. And I would say that nothing, not one thing, in the 
President's executive actions related to guns that we are 
discussing today would have any meaningful effect on tragedies 
like Virginia Tech in my State or San Bernardino, much less 
more common gun-related street crime.
    However, the President's focus on improving mental health 
care does have the potential to assist in avoiding future 
tragedies, particularly given that over 60 percent of all gun 
deaths are mental health-related.
    There are two basic categories of actions advanced by 
President Obama in his recent executive actions, those relating 
to guns in law enforcement and those relating to mental health.
    Everything the President advocates costs money. So let me 
begin by saying--I am a lawyer, so I have to start with my 
caveat. Right? That it would be my strenuous hope that given 
the fact that our national government is astonishingly 
bankrupt, not merely bankrupt, that this Congress would cut 
more money than it proposes to spend on any of these programs. 
Presumably you would cut lower priority expenditures if you 
decide that funding more FBI agents or mental health care is of 
greater importance, as I hope you will.
    The President's actions directed at stemming gun violence 
appear to be in some cases merely aspirational and in other 
cases intentionally intimidating and harassing of law-abiding 
citizens in an effort to get them to shy away from selling guns 
that they legally own.
    The procedural proposals to more quickly and smoothly run 
background checks and more accurately are unarguable so long as 
they are paid for. All of us want the laws on the books to be 
enforced, and if that can be done more efficiently and 
effectively than we are doing today, that would be wonderful.
    However, when the President and the Attorney General seek 
to intentionally create confusion and ambiguity about when 
someone selling a single gun might be in violation of the law 
with 5-year jail penalties, one can only call that dishonorable 
intimidation of the citizenry by its government.
    I would note that this jail threat includes a problem found 
across the entire universe of Federal regulatory law. Mainly 
there is no clear mens rea requirement, no necessity for a 
finding of culpable intent on the part of the hypothetical 
offender citizen. This is another of a long list of examples of 
Presidents, plural and bipartisan, expanding Federal power 
using regulatory bodies that have been imbued with criminal 
law-making authority. Now our President wants Federal law 
enforcement authorities to crack down on people selling as few 
as one gun by forcibly classifying them as gun dealers. This is 
obviously ludicrous, but the President and Attorney General do 
not seem to care.
    Please remember to put yourself in the position of the 
individuals involved. From an individual citizen's perspective, 
having your own Federal Government simply investigating you to 
make sure one gun sale that you conducted privately and 
innocently, perhaps to then use the money to go buy a different 
gun, for example--very common--is an excruciating and painfully 
expensive experience fraught with peril.
    And that is exactly how the President wants it. His 
rhetoric surrounding the release of his proposed actions makes 
it very clear that while he cannot do much, he can threaten 
much, and that he intends his bureaucracy to torment many of my 
fellow citizens who also happen to be gun owners.
    As a lawyer who has worked on hundreds of mental commitment 
cases and been deeply involved in how my own community's mental 
health care system interacts with the judicial system, I would 
urge efforts to improve mental health care at the State and 
local level to address some of the problems of violence in this 
country. The Federal Government's role in such efforts should 
be purely supportive, as this is one of many types of 
challenges best addressed at the local level.
    In addition to the dearth of mental health care available 
throughout most of our country, as it relates to public safety, 
we have a challenging balance to strike between patient privacy 
and liberty, public safety, and yes, liability.
    It would be my hope that the Federal Government would do 
two things and only two things in the area of mental health: 
first, provide funding to expand mental health care in the 
States by cutting lower priority programs in the Federal 
Government; and second, get out of the way of the States. 
Eliminate all of your Federal rules and requirements and trust 
the States to find ways to provide better and more cost-
efficient care over time. They do want to do it.
    Other than providing funding for mental health care, the 
President vaguely mentioned the Department of Health and Human 
Services removing barriers to States reporting information 
about people disqualified from purchasing guns due to mental 
health reasons. I would urge this subcommittee to go much 
further and urge HHS to cut back and simplify the Health 
Insurance Portability and Accountability Act (HIPAA) more 
generally as the impediments to basic, though protected, 
information sharing cause significant problems and 
inefficiencies.
    In the case of the Virginia Tech tragedy, the shooter's 
Virginia public high school, which I represented at the time in 
the Virginia State Senate, had figured out how to manage the 
shooter's mental health issues, but they were not allowed to 
talk to Virginia Tech about the subject. Thus, Virginia Tech 
did not even know they had a seriously mentally ill student 
when Cho, the shooter, arrived as a freshman. While we fixed 
that under Virginia law, such opportunities for improved 
information sharing exist throughout our legal system.
    I will finish by calling your attention to very serious 
concerns I have about threats to due process rights referenced 
in the President's rhetoric. And when I say ``referenced,'' I 
mean his threats--not the due process rights. I did not hear 
them referenced.
    The other concern at a constitutional level, because I see 
time is out, that I have is beyond the Second Amendment, beyond 
due process, is the separation of powers. I heard one Senator 
here already say, gosh, if the Congress will not cooperate with 
the President, I am sure glad the President is bypassing 
Congress. Actually a lack of cooperation is a decision by the 
Congress not to change the law. And I have yet to hear a 
Senator or a witness say that the law should be anything other 
than enforced as it is written.
    Thank you.
    [The statement follows:]
               Prepared Statement of Hon. Ken Cuccinelli
    Opening statement before the U.S. Senate Committee on 
Appropriations Subcommittee on Commerce, Justice, Science, and Related 
Agencies regarding the President's recently announced Executive actions 
related to gun violence of Kenneth ``Ken'' Cuccinelli, II, 46th 
Attorney General of Virginia and current partner in the Second 
Amendment law firm of United Self Defense Law, PLLC.
    Nothing--not one thing--in the President's Executive actions 
related to guns that we are discussing today would have any meaningful 
effect on tragedies like Virginia Tech in my State or San Bernardino, 
much less more common gun-related street crime. However, the 
President's focus on improving mental healthcare does have the 
potential to assist in avoiding future tragedies, particularly given 
that over 60 percent of all gun deaths are mental-health related.
    There are two basic categories of actions advanced by President 
Obama in his recent Executive actions, those relating to guns and law 
enforcement, and those relating to mental healthcare.
    Everything the President advocates costs money, so let me begin by 
saying that it would be my strenuous hope that, given the fact that our 
National Government is astonishingly bankrupt, that this Congress would 
cut more money than it proposes to spend on any of these programs. 
Presumably you would cut lower priority expenditures if you decide that 
funding more FBI agents or more mental healthcare is of greater 
importance, and I would urge you in the strongest possible terms to do 
exactly that.
    The President's actions directed at stemming gun violence appear to 
be in some cases merely aspirational, and in other cases intentionally 
intimidating and harassing of law-abiding citizens in an effort to get 
them to shy away from selling guns that they legally own.
    The procedural proposals to more quickly and smoothly run 
background checks are unarguable, so long as they are paid for. All of 
us want the laws on the books to be enforced, and if that can be done 
more efficiently and effectively than we are doing today, that would be 
wonderful.
    However, when the President (and the Attorney General) seek to 
intentionally create confusion and ambiguity about when someone selling 
a single gun might be in violation of a law with 5 year jail penalties, 
one can only call that dishonorable intimidation of the citizenry by 
its Government.
    I would note that this jail threat includes a problem found across 
the entire universe of Federal regulatory law, namely, there is no 
clear mens rea requirement--no necessity for a finding of culpable 
intent on the part of the hypothetical offender/citizen. This is 
another of a long list of examples of Presidents (plural and bi-
partisan) expanding Federal power using regulatory bodies that have 
been imbued with criminal law-making authority. Now our President wants 
Federal law enforcement authorities to ``crack down'' on people selling 
as few as one gun by forcibly classifying them as ``gun dealers.'' This 
is obviously ludicrous, but the President and Attorney General don't 
seem to care.
    Please remember to put yourself in the position of the individuals 
involved. From an individual citizen's perspective, having your own 
Federal Government simply investigating you to make sure one gun sale 
that you conducted privately and innocently (perhaps to then use the 
money to go buy a different gun, for example) is an excruciating and 
painfully expensive experience fraught with peril.
    And that is exactly how this President wants it. His rhetoric 
surrounding the release of his proposed actions makes it very clear 
that while he cannot do much, he can threaten much, and that he intends 
his bureaucracy to torment many of my fellow citizens who also happen 
to be gun owners.
    As a lawyer who has worked on hundreds of mental commitment cases 
and been deeply involved in how my own community's mental healthcare 
system interacts with the judicial system, I would urge efforts to 
improve mental healthcare at the State and local level to address some 
of the problems of violence in this country. The Federal Government's 
role in such efforts should be purely supportive, as this is one of 
many types of challenges best addressed at the local level.
    In addition to the dearth of mental healthcare available throughout 
most of our country, as it relates to public safety, we have a 
challenging balance to strike between patient privacy and liberty, 
public safety, and yes, liability.
    It would be my hope that the Federal Government would do two 
things, and only two things, in the area of mental healthcare: first, 
provide funding to expand mental healthcare in the States by cutting 
lower priority programs in the Federal Government, and second, get out 
of the way of the States. Eliminate all of your Federal rules and 
requirements and trust the States to find ways to provide better and 
more cost-efficient care over time.
    Other than providing funding for mental healthcare, the President 
vaguely mentioned the Department of Health and Human Services (HHS) 
removing barriers to States reporting information about people 
disqualified from purchasing guns due to mental health reasons. I would 
urge this committee to go much farther than that and urge HHS to cut 
back and simplify the Health Insurance Portability and Accountability 
Act (HIPAA) more generally, as the impediments to basic--though 
protected--information sharing cause significant problems and 
inefficiencies.
    In the case of the Virginia Tech tragedy, the shooter's Virginia 
public high school had figured out how to manage the shooter's mental 
health issues, but they were not allowed to talk to Virginia Tech about 
the subject. Thus, Virginia Tech didn't even know they had a seriously 
mentally ill student when Cho (the shooter) arrived as a freshman. 
While we fixed that under Virginia law, such opportunities for improved 
information sharing exist throughout our legal system.
    I will finish by calling your attention to very serious concerns I 
have about threats to due process rights referenced in the President's 
rhetoric. And when I say ``referenced,'' I mean his threats . . .  not 
due process rights.
    If the Social Security Administration is going to make conclusions 
resulting in the loss of Second Amendment rights by citizens, then such 
citizens must have notice that their Second Amendment rights are at 
risk and they must have an opportunity to be heard in protection of 
those rights. Loose talk by this President about sweepingly denying 
people the right to buy a gun without any adjudicatory process is 
irresponsible, and actual steps in that direction would be downright 
tyrannical. I wish I could assume that no one on this subcommittee 
would ever fund or countenance such action, but how about if I just 
express my hope that none of you would be so unconstitutionally rash?
    I am happy to answer any questions that you may have.

    Senator Shelby. Mr. Barden.
STATEMENT OF MARK BARDEN, FOUNDER AND MANAGING 
            DIRECTOR, SANDY HOOK PROMISE
    Mr. Barden. Thank you, Chairman Shelby. Thank you, members 
of the committee, for inviting me to testify.
    My name is Mark Barden. A little over 3 years ago, I was a 
professional musician, a husband and a father enjoying a 
simple, happy family life. I had the opportunity to be home 
with my children most of the day. My wife Jackie grew up in the 
Bronx and put herself through school to pursue her passion, 
which is teaching. We now live in Newtown, Connecticut, with 
our three beautiful children, James, Natalie, and Daniel.
    Daniel was our youngest and an absolute light of happiness 
and joy. Daniel's sense of awareness, empathy, and tenderness 
transcended his 7 years in a way that prompted many to refer to 
him as an ``old soul.'' In school, Daniel earned the reputation 
as the sweet, little boy who would ask to sit with someone who 
was sitting alone or having a bad day. In fact, some of the 
parents of Daniel's kindergarten peers asked to have their 
children placed with Daniel again in first grade. At home, 
Daniel was a bastion of ethics and respect. For instance, at 
dinnertime he would scold James and Natalie if they attempted 
to pick at their food before my wife and I were seated at the 
table, and he also insisted that we offer a prayer of gratitude 
before we enjoyed our dinner.
    I do not mean to sound like a braggy parent, but I think it 
is really important I think especially in this context that you 
take a moment to consider the humanity and the personal impact 
of what has been taken from us and what is at stake here.
    My family and I had what we considered an idyllic existence 
and an ideal life.
    And it all changed on the morning of December 14th, 2012 
when a gunman wielding an AR-15 semi-automatic assault rifle, 
equipped with 30 round magazines, shot his way into Sandy Hook 
elementary school and shot and killed six educators and 20 
first grade children. One of those children was my sweet, 
precious Daniel. In an instant, the little boy who danced 
around our house and rescued worms from the sun and held doors 
open for strangers was gone forever.
    In the days and weeks following Daniel's murder, like all 
of us, James and Natalie were bewildered and heartbroken with 
questions that Jackie and I were ill equipped to answer, 
questions like ``why would somebody do this, how could this 
happen?''
    And so in an effort to try to answer those questions and 
through the course of research in hopes of answering those 
questions, we learned that over 30,000 people are killed as a 
result of gun-related tragedies in the U.S. every year. That is 
89 people, including seven children, every single day. Gun-
related fatalities are on track to exceed deaths by car 
accidents nationally and already do in some States. And this is 
unacceptable.
    I have subsequently made it my life's work to try to 
identify realistic, sustainable solutions and ultimately save 
other families from having to live this never-ending pain. I am 
now one of three managing directors of Sandy Hook Promise, a 
national nonprofit organization dedicated to bringing the 
numbers of gun-related tragedies down through prevention 
programs.
    The bottom line here is that we as a nation, as Americans, 
as individual members of our families and our communities have 
to do better.
    Shamefully, Congress has done nothing to address this 
epidemic. And thankfully, President Obama and Attorney General 
Lynch are doing what they can within their authority as our 
elected leaders and President Obama as a father to take 
meaningful steps toward protecting our Nation's children and 
making our communities safer.
    The package of executive actions the President is offering 
will help enforce laws already on the books. Adding staff and 
resources to the existing background check system will 
facilitate a faster, more efficient transaction for law-abiding 
citizens who wish to purchase firearms. Since many guns used in 
crimes have been stolen, reporting lost or stolen guns in 
transit will help minimize the number of firearms that end up 
in the hands of criminals through this pipeline. Applying 
better technology to firearms and making them safer will cut 
down on tragedies across the board from stolen guns, accidental 
discharge by children, and suicide.
    The President has also proposed increased funding and 
resources be made available to bolster and improve our mental 
health care system. Access to quality mental health care is 
critical to early identification and treatment for individuals 
who may be on the path to hurt themselves or somebody else.
    I am before you today as an informed, proud American who 
knows these modest proposals will go a long way toward not only 
saving lives but also improving quality of life. I am also 
before you today as a grieving father who knows firsthand the 
cost of inaction. So I am asking you guys to think of my sweet, 
little Daniel and what was lost here and the 90 American 
families who will lose a loved one today and the 90 American 
families who will lose a loved one tomorrow and so on every day 
until we do something.
    President Obama is trying to do something. Please help him.
    [The statement follows:]
                   Prepared Statement of Mark Barden
    My name is Mark Barden, a little over 3 years ago I was a 
professional musician, husband and father enjoying a simple, happy 
family life. My wife Jackie grew up in the Bronx and put herself 
through school to pursue her passion which is teaching. We now live in 
Newtown, Connecticut with our three beautiful children: James, Natalie 
and Daniel.
    Daniel was our youngest and an absolute light of happiness and joy. 
Daniel's sense of awareness, empathy and tenderness transcended his 7 
years in a way that prompted many to refer to him as an old soul. In 
school, Daniel earned the reputation as the sweet, little boy who would 
ask to sit with someone who was sitting alone or having a bad day. In 
fact, the parents of some of Daniel's kindergarten classmates requested 
that their children were placed with Daniel again in first grade. At 
home Daniel was a bastion of ethics and respect, for instance, at 
dinnertime he would scold James and Natalie if they tried to pick at 
their food before Jackie and I were seated, and he also insisted that 
we offer a prayer of gratitude before we enjoyed our meal.
    I apologize if I sound like a braggy parent, but I feel it is 
important, especially in this context, that you take a moment to 
consider the humanity and the personal impact of what has been taken 
from us and what is at stake here.
    My family had what we all considered an idyllic existence and an 
ideal life.
    And it all changed on the morning of December 14, 2012. When a 
gunman wielding an AR-15 semi-automatic assault rifle, equipped with 30 
round magazines, shot his way into Sandy Hook Elementary school and 
shot and killed 6 educators and 20 first grade children. One of those 
children was my sweet, precious Daniel. In an instant, the little boy 
who danced around our house, rescued worms from the sun and held doors 
for strangers--was gone forever.
    In the days and weeks following Daniel's murder, like all of us, 
James and Natalie were left bewildered and heartbroken, with questions 
that Jackie and I were ill equipped to answer. Questions like ``Why 
would somebody do this'' ``How could this happen?''
    Through the course of research in the hopes of answering these 
questions, we have learned that over 30,000 people are killed as a 
result of gun related tragedies in the U.S every year, that's 89 
people, including 7 children, every single day. Gun related fatalities 
are on track to exceed deaths by car accidents nationally, and already 
do in some States. This is unacceptable.
    I have subsequently made it my life's work to try to identify 
realistic, sustainable solutions and ultimately save other families 
from living this never ending pain.
    I am now one of three managing directors of Sandy Hook Promise, a 
national nonprofit organization dedicated to bringing the numbers of 
gun related tragedies down through prevention programs.
    The bottom line here is that we as a nation, as Americans and as 
individual members of our families and communities--have to do better.
    Shamefully, Congress has done nothing to address this epidemic. 
Thankfully, President Obama is doing what he can within his authority 
as our elected leader--and as a father, to take meaningful steps toward 
protecting our Nation's children and making our communities safer.
    The package of Executive actions the President is offering will 
help enforce laws already on the books. Adding staff and resources to 
the existing background check system will facilitate a faster, more 
efficient transaction for law abiding citizens who wish to purchase 
firearms. Since many guns used in crimes have been stolen, reporting 
lost or stolen guns in transit will help minimize the number of 
firearms that end up in the hands of criminals through this pipeline. 
Applying better technology to make firearms safer will cut down gun 
tragedies across the board from stolen guns, accidental discharge by a 
child and suicide. The President has also proposed increased funding 
and resources be made available to bolster and improve our mental 
healthcare system. Access to quality mental healthcare is critical to 
early identification and treatment for individuals who may be on the 
path to hurt themselves or someone else.
    I am before you today as an informed, proud American who knows 
these modest proposals will go a long way toward not only saving lives, 
but also improving quality of life. And I am before you today as a 
grieving father who knows firsthand the cost of inaction. I'm asking 
you to think of my sweet little Daniel and what was lost here . . . and 
the 90 American families who will lose a loved one today, and another 
90 tomorrow . . . and so on every day until we do something.
    President Obama is trying to do something, please help him.

    Senator Shelby. Dr. Malcolm.
STATEMENT OF DR. JOYCE LEE MALCOLM, PROFESSOR, GEORGE 
            MASON UNIVERSITY SCHOOL OF LAW
    Dr. Malcolm. Thank you very much for inviting me today to 
discuss this important issue.
    We are here today because on January 5th, President Obama 
announced plans to impose increased gun control measures on the 
country without obtaining the legislative approval of Congress.
    Certainly gun safety is a central duty of government, and 
we are all very dismayed by the terrible incidents and mass 
shootings that have taken place, most recently in President's 
hometown of Chicago, and Baltimore, and terrorist murders in 
San Bernardino, California.
    The President has the authority and in fact the duty to see 
that existing laws are well enforced.
    However, Members of Congress have not ignored the problem. 
They are sensitive to the need to balance the fundamental 
constitutional right of Americans to firearms for self-defense 
with government measures to keep persons likely to misuse 
weapons from obtaining them. And I must say I am happy to see 
the Congress and the Senate debating about helping do something 
about those who are mentally dangerous to themselves and 
others.
    However, the President, thwarted in the effort to get his 
ideas through Congress, is acting on his own initiative to 
address gun violence. And there is a fundamental problem, 
whether his measures without congressional approval are 
constitutional, and I would like to address two of these 
proposed measures that I believe fail the test of 
constitutionality.
    The President certainly has many opportunities through 
executive orders and actions to direct Federal agencies in the 
execution of the law. But the Constitution forbids him from 
changing the law. This is what he means to do with his plan to 
expand the definition of gun dealer. Current law requires 
individuals, as you have heard, who are in the business of 
selling guns to get a Federal license and perform background 
checks on buyers. Obama would now expand this to require 
everyone who sells even a few guns and who Federal law 
expressly excludes to get a Federal gun dealer license and 
perform background checks. And as you heard from the Attorney 
General, the administration really is not clear on how many gun 
sales would require a seller to obtain a license, the penalty 
of which is up to 5 years in prison and a fine of $250,000. The 
ATF has explicitly warned that under the 1968 Gun Control Act 
when this type of licensing for kitchen table gun sales was 
upheld and part of the law that the courts upheld convictions 
for failing to have a license when as few as two firearms were 
sold in a year. In short, President Obama is planning to alter 
present law in opposition to the explicit will of Congress.
    Is this permissible? In the famous case of Youngstown Sheet 
& Tube, in which President Truman was not allowed to carry out 
his planned seizure of steel mills, Justice Jackson explained 
the scope of a President's power to take unilateral action. 
What he did say was that--and I am quoting here--``when the 
President takes measures incompatible with the express or 
implied will of Congress, his power is at its lowest ebb, for 
then he can rely only upon his own constitutional powers minus 
any powers of Congress over the matter. Courts can sustain 
exclusive presidential control in such a case only by disabling 
the Congress from acting upon the subject.'' And he warns, 
``Presidential claim to a power at once so conclusive and 
preclusive must be scrutinized with caution, for what is at 
stake is the equilibrium established by our constitutional 
system.'' The President's action to alter this law unilaterally 
is plainly unconstitutional.
    I just have another minute, but I would like to also 
mention the President's plan to put people who are on the No 
Fly List from being able to purchase a gun, and I think many of 
us have heard of people like former Senator Edward Kennedy who 
was surprised to find his name on the No Fly List. It is 
compiled in secret. For the last 5 years, the American Civil 
Liberties Union has challenged the law's operation. It is 
extremely hard to get your name off the list, and there does 
not seem to be any due process to do so. The ACLU is 
representing people, including two Marine Corps veterans, one 
of whom is disabled, a U.S. Army veteran, and a U.S. Air Force 
veteran. And in an article that their project manager for the 
National Security Project wrote, she claims, ``Until the No Fly 
List is fixed, it shouldn't be used to restrict people's 
freedoms.'' That holds true for their freedom to travel. 
Certainly also they should not have their Second Amendment 
right for self-defense impugned as well.
    Thank you.
    [The statement follows:]
              Prepared Statement of Dr. Joyce Lee Malcolm
    We are here today because on January 5 President Obama announced 
plans to impose increased gun control measures on the country without 
obtaining the legislative approval of Congress. Certainly public safety 
is a central duty of government and a concern of us all. We are rightly 
dismayed by the rash of shootings, most notably in the President's 
hometown of Chicago, and recent terrorist murders in San Bernardino, 
California. And the President has the authority, indeed the duty, to 
see that existing laws are well enforced. However, Members of Congress 
have not ignored the problem. They are sensitive to the need to balance 
the fundamental constitutional right of Americans to firearms for self-
defence with government measures to keep persons likely to misuse 
weapons from obtaining them. With the exception of bills now under 
discussion in Congress proposing more facilities for the dangerous 
mentally ill, the majority of members have concluded that there is 
sufficient gun legislation in place, it simply needs better 
enforcement.\1\ Thwarted in his effort to get his preferred ideas 
through Congress, President Obama is acting on his own initiative to 
address gun violence.\2\ Beyond the efficacy of his proposed measures--
and there is good reason to doubt that they would prevent gun crime-- 
is the fundamental question whether Obama's plan to impose these 
measures without congressional approval is constitutional. I would like 
to address two of his proposed measures that fail the test of 
constitutionality.
---------------------------------------------------------------------------
    \1\ Representative Tim Murphy, Helping Families in Mental Health 
Crisis Act (H.R. 2646) has bipartisan support with 178 cosponsors.
    \2\ Although the President refers to ``the epidemic of gun crime,'' 
in fact gun crime and gun murders have been declining for more than 20 
years. See for example Robert Farley, ``Gun Rhetoric vs. Gun Facts,'' 
December 21, 2012, http://www.factcheck.org; ``Firearms and Crime 
Statistics,'' Bureau of Justice Statistics, Jan. 22, 2015.
---------------------------------------------------------------------------
    The President has many opportunities through Executive orders and 
actions to direct Federal agencies in the execution of the law. But 
what the Constitution clearly forbids him from doing is changing the 
law. That is what he means to do in his plan to expand the definition 
of ``firearms dealer.'' Current law requires individuals who are in the 
business of selling guns to get a Federal license and perform 
background checks on buyers.\3\ Obama would now expand this to require 
everyone who sells even a few guns and who Federal law expressly 
excludes, to get a Federal gun dealer license and perform background 
checks on buyers. The administration was unclear how many gun sales 
would require the seller to obtain a license but the penalty for 
failure to do so would be up to 5 years in prison and a fine of up to 
$250,000 in addition to further penalties for the failure to carry out 
a required background check. The ATF has warned that under the 1968 Gun 
Control Act, a law that required licensing for so-called ``kitchen 
table'' gun sales, courts upheld convictions for failing to have a 
license when as few as two firearms were sold in a year. In short Obama 
is planning to alter the present law in opposition to the explicit will 
of Congress.
---------------------------------------------------------------------------
    \3\ [A] person who devotes time, attention, and labor to dealing in 
firearms as a regular course of trade or business with the principal 
objective of livelihood and profit through the repetitive purchase and 
resale of firearms, but such term shall not include a person who makes 
occasional sales, exchanges, or purchases of firearms for the 
enhancement of a personal collection or for a hobby, or who sells all 
or part of his personal collection of firearms. 18 U.S.C. 
Sec. 921(a)(21)(c).
---------------------------------------------------------------------------
    Is this permissible? In the famous case, Youngstown Sheet & Tube 
Co. v. Sawyer, 343 U.S. 579 (1952), where the Supreme Court found 
President Truman's seizure of steel mills unconstitutional, Justice 
Jackson carefully explained the scope of a president's powers to take 
unilateral action, setting out three scenarios to guide us.\4\ First, 
he points out, ``When the President acts pursuant to an express or 
implied authorization of Congress, his authority is at its maximum for 
it includes all that he possesses in his own right plus all that 
Congress can delegate in these circumstances.'' \5\ The second type of 
action Jackson describes occurs ``When the President acts in absence of 
either a congressional grant or denial of authority, he can only rely 
upon his own independent powers, but there is a zone of twilight in 
which he and Congress may have concurrent authority, or in which its 
distribution is uncertain.'' \6\ But Justice Jackson insists, ``when 
the President takes measures incompatible with the expressed or implied 
will of Congress, his power is at its lowest ebb, for then he can rely 
only upon his own constitutional powers minus any constitutional powers 
of Congress, over the matter. Courts can sustain exclusive presidential 
control in such a case only by disabling the Congress from acting upon 
the subject.'' \7\ The justice warns, ``Presidential claim to a power 
at once so conclusive and preclusive must be scrutinized with caution, 
for what is at stake is the equilibrium established by our 
constitutional system.'' The present instance is in this category. 
Congress has expressly exempted individuals who only occasionally sell 
a gun from the requirement to be licensed. Only Congress can change 
that requirement. The President's action to alter the law unilaterally 
is plainly unconstitutional.
---------------------------------------------------------------------------
    \4\ Justice Jackson, Youngstown Sheet & Tube Co. v. Sawyer, 343 
U.S. 579 (1952), p. 343 p. 343 U.S. 635.
    \5\ Ibid., p. 343 U.S. 636.
    \6\ Ibid., footnote 4/3.
    \7\ Ibid., p. 343 U.S. 638. Footnote 4/4.
---------------------------------------------------------------------------
    Another of Obama's proposals would prohibit anyone whose name 
appears on the Government No Fly List from being able to purchase a 
gun. While this sounds like a sensible idea since the No Fly List is 
meant to target potential terrorists, it is compiled in secret and 
includes people who have no specific evidence against them and whose 
names are on the list merely because they sound like or are spelled 
like someone else's. The late Senator Edward Kennedy was surprised to 
find his name on the No Fly List. By 2014 the Obama administration had 
greatly increased the number of people on the No Fly List although 
since the list is classified it is uncertain how many names are on it. 
Estimates vary from 21,000 to 47,000.\8\ For the past 5 years the 
American Civil Liberties Union has challenged the law's operation. Last 
year the organization complained that in 12 months the Government's 
secret list of suspected terrorists banned from flying to or within the 
United States had more than doubled. They estimated that 35 percent of 
the nominations to the terrorist watch lists were outdated, while the 
Government watch list network included tens of thousands of names 
placed on the lists without adequate factual basis. Worse, the 
Government had no meaningful way to correct the errors and permit 
people to clear their names. In fact the ACLU has been suing to change 
the list's redress process.\9\ Their challenge is on behalf of 15 
American citizens and lawful residents who found themselves on the list 
and unable to fly. These include two Marine Corps veterans, one of whom 
is disabled, a U.S. Army veteran, and a U.S. Air Force veteran. None 
were told why they were on the list or given a chance to clear their 
names. These people were stripped of their right to travel without 
proper due process. Now President Obama wants to add the names of all 
those on the No Fly List to the National Instant Criminal Background 
Check System (NICS) also depriving them of their fundamental right to 
be armed. The title of an article written by the ACLU director of its 
National Security Project protests, ``Until the No Fly List Is Fixed, 
It Shouldn't Be Used to Restrict People's Freedoms.'' That certainly 
holds true for their freedom to exercise their Second Amendment right 
to be armed for self-defence and other lawful purposes.
---------------------------------------------------------------------------
    \8\ Jeremy Scahill, Ryan Devereaux, ``Barak Obama's Secret 
Terrorist-Tracking System, by the Numbers,'' The Intercept, August 5, 
2014, https://theintercept.com. The ACLU reported that only 21,000 
people were on the No Fly List including some 500 Americans. ``No Fly 
List Grows, Along with Injustice for Those Wrongly Stuck on It,'' 
American Civil Liberties Union, https://www.aclu.org.
    \9\ Hina Shamsi, ``Until the No Fly List Is Fixed, It Shouldn't Be 
Used to Restrict People's Freedoms,'' December 7, 2015, https://
www.aclu.org.
---------------------------------------------------------------------------
    There is much the President can do to enforce those laws already on 
the books to defend citizens against gun violence. The NICS depends on 
States reporting the names of felons and individuals whose mental 
illness has made them dangerous to themselves and others from buying 
guns. These records are woefully incomplete. Despite Congress passing 
the NICS Improvement Amendments Act in 2007 the NICS lacks up-to-date 
and accurate reports from many States. Without timely reporting the 
background checks cannot be effective.
    If the President has a case to make for his ideas on preventing gun 
violence he needs to work with the Congress to pass the necessary 
legislation. Taking unilateral action that is patently unconstitutional 
is, in the long run, just as dangerous to the welfare of Americans as 
gun violence itself.

    Senator Shelby. I thank all of you.
    I will start with you, Attorney General Strange. According 
to the President's executive actions, the U.S. Attorney General 
will begin a new dialogue with States to ensure the robust 
provision of data into the National Instant Criminal Background 
System.
    Yet, in recent years, as we have noted, his budget has 
proposed to cut the funding for the NICS program. That is 
grants to States and local law enforcement agencies that help 
to make technology upgrades that enable better criminal data 
sharing, as has been pointed out here.
    Congress has balked at the President's proposal. This 
committee has balked at it and instead restored funding levels 
for these important grants.
    Attorney General Strange, how have the President's 
disjointed funding priorities for Justice Department grants and 
other State-related support programs impacted communities in 
our State of Alabama and elsewhere?
    Mr. Strange. Senator, they have not been helpful. And I 
want to commend the leadership here in this committee for its 
support of local law enforcement because I think, as has been 
made abundantly clear, without the resources, the States cannot 
adequately get the information to the instant check system. 
Without doing that, we have a system that is functionally 
broken, and that is a very detrimental thing for law 
enforcement in our States. And I do not think I am speaking 
just for Alabama here. I think as a chief law enforcement 
official, every law enforcement official at the State level 
would say that.
    And I did some checking. Even though we have had a 
requirement to provide this information for some time, it is 
only recently within the last year that we have received any 
money at the State level to develop the technology and all the 
information that is needed to put that information into the 
Federal database.
    Senator Shelby. Well, should this not be a high priority 
for the President, as well as this committee?
    Mr. Strange. I think the best thing this committee could do 
would be to make that the highest priority and allow the States 
to fund that information, put it into the system so that we can 
identify gang members and others who attempt to violate the 
law.
    Senator Shelby. What Senator Lankford pointed out earlier 
in the committee--and I think you were here--I thought that was 
spot-on.
    Mr. Cuccinelli, in our public service as the Attorney 
General of Virginia and in your position as State Senator at 
one time, you have been a strong supporter of the Second 
Amendment rights. Now, as a founding partner in the United Self 
Defense Law Firm, which focuses on providing counsel in the 
area of self-defense rights, you are continuing to focus your 
career on the protection of the Second Amendment rights.
    My first question: Do you believe that the President's 
executive actions to implement new gun control measures will 
have a deterrent effect on violent gun crimes in our country?
    Mr. Cuccinelli. The answer to that is a simple no. What he 
has done in the area of guns is so thoroughly indirect as it 
relates to actual crime occurring either on the street or when 
you have tragic mass shootings and mental health-related 
incidents. There cannot be a connection. Anyone contemplating 
crime--when you think of deterrence, you think of them 
contemplating the consequences. This will have nothing to do 
with that.
    Senator Shelby. You have spent a lot of time in your 
background dealing with the mental health issues that face all 
of us in this country. How can we do more there, and what would 
you recommend?
    Mr. Cuccinelli. In your exchange with Attorney General 
Strange, you noted States reporting information, and one of the 
lessons learned out of Virginia Tech for us was, in the case of 
Cho, he had encountered our mental health system, but he had 
not been formally adjudicated without his objection for mental 
health incapacity. However, he had submitted within our court 
system to mental health treatment, and because he went that 
route rather than resisting the adjudication, he was not 
reported to the NICS system.
    We have fixed that in Virginia, and I believe a lot of 
other States learned some of our informational lessons, if you 
will. If you look about a year to 2 years after Virginia Tech, 
you start to see in the data a much higher rate of reporting of 
these sorts of people to the NICS system because we do not want 
them to be able to purchase firearms. And that as a failure of 
a system that we thought would cover this area in Virginia, and 
I think a lot of other States are learning from that mistake 
and fixing it.
    Senator Shelby. You are not saying you solved the problem, 
but we have taken some steps in the right direction.
    Mr. Cuccinelli. We have taken some steps in the right 
direction. You heard statistics earlier today about the number 
of gun checks, 23 million or so, and in Virginia--and I am sure 
it is true in Alabama as well--we stop hundreds if not 
thousands of gun sales already, many of them being caught up in 
the system because of the information provided this way. And 
those information blocks are substantial. That is the one way 
that we might have changed the outcome at Virginia Tech. In a 
lot of these incidents, it is hard to find any way to have 
changed the outcome based on the kinds of regulatory 
impositions the President is talking about here.
    Senator Shelby. Sir, the executive actions, which we have 
been talking about--and I call it chipping away at the Second 
Amendment rights here. How would the President's proposal 
infringe on the Second Amendment rights of law-abiding 
citizens?
    Mr. Cuccinelli. Well, to take the word you used earlier, 
the ``deterrent,'' the impression given to those operating as 
individuals, though not in their mind conducting the business 
of gun sales, is that they are being intimidated here. They are 
being harassed. You know, the Attorney General kept saying that 
they were clarifying. I have to say I was sitting back there 
thinking she knows what this word means, and that is not what 
they are talking about. They are holding a 5-year prison 
sentence out over the heads of anyone who is not a gun dealer 
and who by any objective standard ought not be considered one 
but who does sell a gun--and the Attorney General has said one 
is enough--to fall under their umbrella. And with penalties 
like that, the obvious intent is to deter people from even 
considering making those otherwise and objectively entirely 
legal sales.
    Senator Shelby. But millions of Americans--millions--own 
guns. I, for one, have sold a gun and taken money to buy 
another gun, but I am not a gun dealer and so forth.
    Mr. Cuccinelli. Yes.
    Senator Shelby. But under the Attorney General's 
recommendation or the President's recommendation, that could 
curtail my rights to do that. Could it not?
    Mr. Cuccinelli. And that is how it affects your actual 
exercise of the Second Amendment. If you are a law-abiding 
citizen--and I am a gun owner. I have done exactly what you 
just described, Senator. I have sold one gun and bought another 
one to kind of upgrade the kind of gun I own. And the idea 
here--my impression from the President, the Attorney General on 
down--is that they want folks in that situation to think twice, 
to maybe not be comfortable selling that gun except directly to 
and from a firearms dealer where there are background checks 
going both ways. And so the ultimate effect is to slow down the 
opportunity to legally purchase by law-abiding citizens 
firearms. That is where the imposition on the Second 
Amendment----
    Senator Shelby. Chipping away at our constitutional right.
    Mr. Cuccinelli. Yes, sir.
    Senator Shelby. Do you believe that rather than saving 
lives, the President's executive actions could result in more 
lives lost through the violation of a constitutionally 
guaranteed right to self-defense?
    Mr. Cuccinelli. Well, certainly one of the things that is 
little discussed in situations like this is the defensive use 
of guns, is the actual use of guns for protection. If you go 5 
years before Virginia Tech, we had another school shooting down 
in southwest Virginia at Appalachian Law School where a student 
came onto the campus, shot and killed three, and was stopped by 
two students who ran to their cars and got their guns. And that 
person, unusually enough, simply surrendered. Normally when 
confronted, someone with mental health issues--they actually 
take their own lives most of the time, statistically speaking. 
But there it was used 5 years before Virginia Tech as a 
protective measure.
    And there is no compilation of those occurrences anywhere 
that I know of, and yet we see them all the time. In my law 
firm, those are the kinds of people we are defending. We have 
hundreds of clients. We have never had a client inappropriately 
use a gun. We have defended clients who have drawn their guns 
in defense and had to then protect themselves from prosecution, 
for instance, and all of those have been resolved favorably. 
But that is understated here.
    There is no questioning the tragic outcomes that happened 
time and time again in this country, but it is also the case 
that Second Amendment rights are exercised and guns drawn to 
protect people, to defend families, to stop crimes that are in 
process.
    Senator Shelby. Just share with us for a minute something 
we all believe in and we were taught and practice. We have a 
right to defend ourselves. Do we not?
    Mr. Cuccinelli. Absolutely. It is a natural right. And we 
are a natural law country, and the Second Amendment, as one of 
the Justices--I believe it was Scalia--said, did not give us 
this right. It preserved the right that we already had as a 
matter of natural law.
    Senator Shelby. Thank you.
    Professor Malcolm, the President has announced that 
stricter standards, not past or vetted or evaluated with 
Congress, will be applied by the ATF to determine if the seller 
of a gun ``is engaged in the business of selling firearms,'' 
and required to perform background checks.
    My question. Do you believe that the President's 
announcement of an undefined measurement--undefined 
measurement--for determining when a gun seller is ``engaged in 
the business of selling firearms'' and thus required to perform 
background checks will result in harassment and legal 
consequences for law-abiding citizens who are simply engaged in 
constitutionally protected firearms transactions, as Mr. 
Cuccinelli and I discussed?
    Dr. Malcolm. Yes, I do.
    Senator Shelby. And why? Explain why.
    Dr. Malcolm. Well, because as the Attorney General said, we 
keep explaining and getting all these calls. She would not say 
how many guns were required to put someone in the category of 
being a gun dealer. Right now, the law is quite explicit that 
it has to be someone whose main business is selling guns. And 
the law explicitly exempts and kind of explicitly exempts the 
casual gun seller from that. And they seem to be blurring that 
definition and really thwarting the will of Congress because I 
think Congress took pains to make sure that it would not 
include people who were just occasional gun sellers.
    Senator Shelby. Do you think that this announcement by the 
President will have a chilling effect on citizens who merely 
want to exercise their constitutional rights? I use myself as 
an example. I have guns, and I have bought guns and I have sold 
guns and upgraded. And I believe I have that right to do it. I 
am not a gun dealer.
    Dr. Malcolm. You are not a gun dealer, no.
    Senator Shelby. I am not a gun dealer.
    If this went into effect, I might say, well, gosh, somebody 
might come after me for doing that. Yet, I might sell the gun 
to a judge or somebody, you know, a good citizen, or a 
prosecutor or lawyer or something like that.
    Dr. Malcolm. Well, it is bound to have a chilling effect, 
especially when they have announced that the punishment for not 
having that license as a gun dealer is up to 5 years in jail 
and a fine of $250,000, not counting additional punishment for 
not doing a background check. So with that kind of draconian 
punishment, a threat and no explicit explanation of how many 
guns would require you to be listed and get a license.
    Senator Shelby. In a way, it would be an intimidation 
syndrome--would it not----
    Dr. Malcolm. Oh, yes.
    Senator Shelby [continuing]. Out there saying you better be 
careful. In other words, I have these rights but I better be 
careful to exercise them. I better do this because of somebody 
signing an executive order infringing on my constitutional 
rights. Is that fair?
    Mr. Cuccinelli. Yes.
    Senator Shelby. Thank you.
    Dr. Malcolm. And when the ATF has made a point of saying 
that in the past they have prosecuted someone for selling as 
little as two guns in a year, I mean that is sort of indication 
of what their intentions are.
    Senator Shelby. Dr. Malcolm, you spent a great deal of your 
professional life studying constitutional rights, the Second 
Amendment, and so forth. Is the Second Amendment just as 
important to the wellbeing of this country as the First 
Amendment, Third Amendment, Fourth Amendment, and so forth?
    Dr. Malcolm. It certainly is because it embodies your right 
to self-defense, which has been mentioned. And no right is more 
important than your right to defend yourself and your family. 
And so it absolutely is extremely essential. And there are 
countries where people do not have the right to self-defense, 
and they are supposed to depend on the government. And no 
government can protect everyone all the time. So it tends to be 
ignored. As Mr. Cuccinelli said, these self-defense uses of 
guns--and while the FBI does not record self-defense uses of 
guns, it has been estimated from studies that there is 
something like a million and a half of these a year where law-
abiding citizens protect themselves and their families, for the 
most part, just having to show a gun to stop a crime from 
taking place.
    Senator Shelby. Have you seen any administration in recent 
years or even in past years in the presidency that would look 
at part of our constitutional makeup and attack this amendment, 
the Bill of Rights, or attack this part of the Constitution 
like this administration?
    Dr. Malcolm. I think they have been rather clear that if 
they had just desserts, as it were, their preference, that they 
would ban guns. I mean, the President spoke glowingly of 
Australia's buyback and banning of guns for its people. I think 
that if they could, they would.
    I always find it interesting that when they talk about the 
Second Amendment, they like to refer to hunting. You know, it 
is fine to have a gun for hunting. Hunting does not rise to the 
level of constitutional right. It is self-defense that does.
    Senator Shelby. Self-defense is self-preservation. Is it 
not?
    Dr. Malcolm. Yes.
    Senator Shelby. Mr. Attorney General?
    Mr. Strange. Absolutely.
    Senator Shelby. Senator Murphy.
    Senator Murphy. Thank you very much, Mr. Chairman. Thank 
you all for your very candid testimony.
    I sort of feel as if this is a hearing on a document that I 
have not seen, and so I want to explore some of the 
inconsistencies between the interpretation of three of our 
witnesses and the words on the page.
    But first I want to just start with you, Mr. Barden. I want 
to thank you for your advocacy in the face of unimaginable 
grief. And I want to specifically thank you for holistic way in 
which Sandy Hook Promise has attacked this problem. We are 
sitting here talking about the ways in which we can change the 
enforcement of gun laws in order to prevent homicides. But your 
organization recognizes that the way in which we attack the 
issue of gun violence is not simply through changing gun laws 
or better enforcement of gun laws, but also through increased 
efforts to buttress mental health resources or to increase gun 
safety or to prevent violence in the first place. So you have a 
much broader agenda. Do you not?
    Mr. Barden. Absolutely. And I think I hear words like 
``attack'' and this adversarial approach, and I think we should 
all be on the same page here. I think really we should be 
looking for solutions where we can agree that we need to move 
forward. Something has to be done. And the problem of gun-
related tragedies is huge and broad and complex, and no one law 
will fix it all, no number of laws will fix it all, nothing 
will fix it all. But we have to approach it in a more, as you 
said, holistic way, Senator.
    Senator Murphy. One of the reasons that you do focus on the 
issue of gun laws is because the research that you have looked 
at makes it pretty clear that States that make it harder for 
criminals to access guns have lower rates of gun homicide. And 
in fact, a very recent report from Johns Hopkins, comparing 
Connecticut's law against Missouri's law and the effect of gun 
violence rates and gun homicide rates in those two States, 
suggests there is a real connection between the laws on the 
books with respect to the easy access of guns to criminals and 
rates of gun homicide.
    Mr. Barden. Yes, that is correct, Senator. There is clear 
evidence-based research conducted by Johns Hopkins that clearly 
indicates that the permit to purchase regulation actually has 
reduced homicides by 40 percent. It has reduced suicides by 
over 15 percent. And those numbers are reflected in the 
inversion in States like Missouri that do not have this law 
where homicides have risen by 40 percent in the same time 
period. Suicides have gone up 15 percent. And it comes down to 
access.
    And what we are talking about here is the whole fabric of 
this with regard to access, with regard to prevention. As you 
mentioned, my organization, Sandy Hook Promise, is looking--we 
do a lot of work in the space of prevention and finding those 
individuals who are on the path to violent behavior and getting 
them to the help that they need. And so we should be bolstering 
our mental health system. We should have better legislation and 
mental health reform in place--for a place to get these people 
to the help that they need.
    Senator Murphy. Let me get at this inconsistent reading of 
the words of the guidance here. So let me start with you, Dr. 
Malcolm. I just want to make this clear for the record. You 
spent a decent amount of your written testimony in the last 
portion of your verbal testimony talking about a conversation 
about including individuals on the No Fly List on the list of 
those that would be prohibited to purchase guns. Let us just 
make it clear for the record that is not in the President's 
executive order that is the subject of this hearing. Is that 
not correct?
    Dr. Malcolm. The President said that he wanted to include 
people on the No Fly List in the background checks so they 
would not be able to buy guns.
    Senator Murphy. But he has asked that Congress to make that 
change. He has not included that in--let us just make it clear.
    Dr. Malcolm. It was one of his proposals.
    Senator Murphy. That is not in the executive actions 
announced.
    Dr. Malcolm. It was one of those he announced. That is how 
I know about it.
    Senator Murphy. For the record, it was not in the set of 
executive----
    Dr. Malcolm. Then where did it come from?
    Senator Murphy [continuing]. Actions that he announced. He 
has requested that Congress make that change, and the President 
has acknowledged that that is a subject that is within the 
jurisdiction of Congress, not within the jurisdiction of 
enforcement of existing law. So I think it is important to 
point out for the record that that is not part of the 
underlying executive actions.
    Second, I just want to make clear. You said in your 
testimony or maybe in answer to a question from Senator Shelby 
that he announced that the penalty for violating the existing 
law with respect to who needs to be licensed is a certain 
period of time in jail.
    Dr. Malcolm. I said announced and I misspoke. The penalty 
is listed as on the record, the part of which you read.
    Senator Murphy. That is existing law. Correct?
    Dr. Malcolm. That is existing law.
    Senator Murphy. That is existing law.
    And I think this speaks to part of our disagreement. If the 
very notion of expressing what the penalty is for violating the 
law equals intimidation, then that is a very different reading 
of our set of criminal statutes that many of us have come to 
understand. That is a simple recitation of the existing 
penalty.
    Dr. Malcolm. But when you imply that a whole lot of people 
who are not at the moment under the law are going to be and 
will face that penalty, then I think that it is important.
    Senator Murphy. So then let us get to that implication.
    Thank you very much, Attorney General Strange, for being 
here today.
    You used strong words in referring to the President's 
executive order. I think you talked about this being an 
unwarranted assault on the Second Amendment. And I think this 
is where we get down to a question of the words on the page 
versus your perceived intention. And maybe we can all concede 
that it is a little difficult for us to understand what sits in 
the thoughts and minds of the individuals who write laws and 
write guidance. And so we are left, first, with the words on 
the page.
    So maybe just share with me which of these sort of five key 
points that are in this guidance do you perceive to be the 
unwarranted assault on the Second Amendment. Or is that 
interpretation dependent on an interpretation of intentions 
that you have derived independent of what the Attorney General 
has testified to today?
    Mr. Strange. Well, I think I would adopt the comments of my 
colleague, Senator Cuccinelli, and I think Senator Shelby has 
already sort of gone into that detail. And I am happy to answer 
that question.
    But I really jumped at the opportunity to come at the 
Senator's invitation because I wanted to deliver the message 
from the men and women on the street, the people who are 
actually going into the catastrophic active shooter situations 
and get their opinion and bring that here not only to criticize 
the President's proposal, because I do not think it is the 
right way to go about addressing these issues we all care 
about, but to point out that the areas that do make a 
difference and where the Senate committee here can make a 
difference have been neglected. And one example is the----
    Senator Murphy. But I guess my question is--I am going to 
run out of time. I know I am already over. But what 
specifically, what is the section here that you perceive to be 
intimidating? What is the language here that is the assault on 
the Second Amendment, to the extent that you can point me to 
the provision that you are referring to?
    Mr. Strange. If I could follow up with that, I will be 
happy to, Senator. I do not have it in front of me. But I can 
tell you that the sentiment of the men and women in law 
enforcement, the people that I work with every day who are 
devoted to solving the problems that we all care about----
    Senator Murphy. I appreciate that. I think you have an 
obligation to point to the specific provisions given that we 
are talking about it.
    I think, Mr. Cuccinelli, you might be jumping at that 
opportunity. So let me just turn it over to you.
    I get the sense that you probably have the most problem 
with the recitation of the existing court cases that are 
currently the way in which you would interpret whether you are 
subject to the requirement or not. And so you repeatedly 
referred to the suggestion that if you sell only one firearm, 
that you may be required to obtain a license. That is included 
in a section which simply recites existing court cases.
    So let me just ask you a simple question. Do you dispute 
any of the information that is listed in this section relative 
to the description of existing court cases on this question of 
who has to get a license?
    Mr. Cuccinelli. My concern partly arises from experience. I 
mean, in my 4 years as Attorney General of Virginia, I dealt 
with the business end of the spear of the Federal Government as 
they over-read, if you will, over-interpreted and thereby used 
very aggressively authority they did not have. And we beat them 
back occasionally, but we had to do it. And they are counting 
on the fact that corporations and individuals do not want to 
fight with the Federal Government.
    And the intimidation you were asking the professor about, 
it is rather vaguely worded despite the Attorney General's 
continual use of the word ``clarify.'' It is exactly the 
opposite of what they are doing. They are opening the door to 
the application of 5-year jail penalties to a bunch of people 
who right now under the existing law believe they understand 
that they do not fall under that----
    Senator Murphy. What is vague here? Point me to the--what I 
see is a recitation of the existing law and then a recitation 
of existing court cases that are public records. So what of 
that is intentionally vague such as to be intimidating?
    Mr. Cuccinelli. Senator, if all they wanted to do is 
actually apply the laws that exist today, they would not have 
to say anything. They can just keep pressing ahead and make 
greater efforts, hopefully, to apply the existing laws.
    Senator Murphy. What is vague here?
    Mr. Cuccinelli. When you bring all of it together--and you 
all or the Attorney General with one of you on the panel was 
discussing circuit-to-circuit differences, for instance. The 
Fourth Circuit, which I am in--we have some unique case law, 
but the people who live in the Fourth Circuit who do think of 
themselves as dealers and who do make a business of selling 
recognize what that law is. They have come to understand it. 
And so now you are introducing at the national level a new 
threat of enforcement that there would not be any need for if 
the law was not going to change. So what are they to think? 
They are to think that something has now changed and the 5-year 
penalty is being held out over their heads in a way that they 
now have to be concerned about. That intimidation has been used 
in all sorts of regulatory arenas by this administration for 7 
years.
    Senator Shelby. I just want to go back to the law. This is 
the U.S. Code and I am going to quote from it that you all are 
familiar with for the record.
    As applied to a dealer in firearms, as defined in section 
921 and so forth, a person who devotes time, attention, and 
labor to dealing in firearms as a regular course of a trade or 
business with the principal objective of livelihood and profit 
through the repeated purchase and resale of firearms, but such 
term shall not include a person--this is very important--who 
makes occasional sales, exchanges or purchases of firearms for 
the enhancement of a personal collection or for a hobby or who 
sells all or part of his personal collection of firearms.
    So the President, I believe, is trying to assault the 
constitutional rights, and also he is trying to get around the 
law. The law is clear here. Is it not? Am I wrong?
    Mr. Cuccinelli. I think he is trying to eliminate the last 
clause of that section.
    Senator Shelby. That is right, by executive order not 
through Congress and a debate. Is that correct, sir? You all 
agree with that. You agree with that, Doctor?
    Mr. Barden. May I make a comment on that? I think there is 
a part of that that everyone seems to be missing in that there 
are other factors that have to be included. It is not just that 
you are one person that you are saying is selling one gun. And 
that is why they do not have a number because the widow whose 
husband dies and she is trying to sell off his collection would 
not be subject to this.
    Senator Shelby. Dr. Malcolm, go ahead.
    Dr. Malcolm. Because you had asked me.
    Mr. Barden. I am sorry. Can I finish?
    Senator Shelby. Let her answer. Go ahead.
    Dr. Malcolm. Yes. I think that the Congress has been very 
explicit that it wanted to prohibit the inclusion of the 
occasional gun seller from having to be listed as--get a 
firearms license as a gun dealer. And you have read us the 
existing law. But the President has announced that he wants to 
change the existing law.
    Senator Murphy. I did not read you the existing law. I read 
you the actual executive action that we are debating today.
    Dr. Malcolm. Okay. But the President announced that he 
wanted to include the so-called gun show loophole, the people 
who sell here or there, the occasional----
    Senator Shelby. He wants to include rights that are 
protected in the law.
    Dr. Malcolm. Yes.
    Senator Shelby. He wants to do it by executive order. Is 
that correct?
    Dr. Malcolm. That is as I----
    Mr. Barden. May I finish?
    Senator Shelby. Yes, sir. Go ahead, Mr. Barden.
    Mr. Barden. Let us look at what this is actually aimed at. 
It is aimed at these people who have emerged especially with 
the Internet to sell thousands of firearms while they have 
another--maybe they are a used car salesman. That is their job. 
But in the meantime, they may not have a store, but they have 
business cards. They may be selling firearms in their existing 
packaging. They are clearly in the business. And that is why 
they have not defined a certain number to delineate who is in 
the business and who is not so that people who should not be 
captured are not captured like the widow who is trying to sell 
her husband's arms to Cuccinelli who wants to operate will not 
be captured in this.
    Senator Shelby. Well, I think a lot of us would agree that 
we want to keep guns away from people with mental health 
problems, criminals, terrorists, and everything else. But we 
want to, I hope, always protect the right of gun owners and 
people who own guns, have guns, sell guns under the Second 
Amendment.
    Mr. Barden. I do not see any infringement on that in any of 
this language.
    Senator Shelby. Do you agree with that?
    Mr. Cuccinelli. I do, but I think Mr. Barden raises a 
legitimate issue about the change in the nature of sales with 
the growth of the Internet. I mean, I will just name 
Craigslist, for instance. And there is nothing wrong--I do not 
think anybody would object to making sure that folks using 
those avenues are properly following--either licensed, if they 
should be----
    Senator Shelby. Follow the law.
    Mr. Cuccinelli [continuing]. As it exists now. But new law 
was not needed for that.
    However, the requests for additional enforcement tools 
perhaps would get to exactly those kinds of folks.
    I would note for you what is called the gun show loophole 
is not a new debate. 40 miles west of here we have the largest 
gun show on the East Coast. We have it because of legislation I 
got in the State Senate that Mark Warner, one of your 
colleagues, signed as governor at that time. And we went 
through that gun show, over a thousand tables, over 400 of them 
with gun sales going on--400 tables--with the proprietor 
filming it and went to every single seller of guns and asked 
every single one if they were a licensed dealer. Every single 
one of them was except six. Of the six, we asked three of them, 
well, what are you doing? Why are you here selling these guns? 
And all three of them had the same answer, that they were all 
private collectors liquidating part of their collection. All 
three of them.
    Senator Shelby. Which is covered here in the law.
    Mr. Cuccinelli. It is covered in the law.
    And the debate, just in Virginia--it happened every year. 
There is never a year off from this debate. There was never 
identified in Virginia a purchase, referring to the statistics 
that Attorney General Strange mentioned--that came from the 
Clinton administration, by the way--where we found criminally 
used guns being bought and sold at gun shows. It has never 
happened in Virginia.
    Senator Shelby. Yes, Senator.
    Senator Murphy. Mr. Chairman, just kind of wrapping up, 
kind of a concluding thought.
    I think at the heart of this issue is simply a disagreement 
about what the words on this page say. And I think it is 
important that when pressed, none of our witnesses could 
actually recite any actual verbiage in the order which speaks 
to this claim of intimidation.
    And I think the exception that you talked about, Mr. 
Chairman, for those that are just engaging in personal sales 
from their collection is important, but that is in the 
guidance. The guidance says very specifically if you only make 
occasional sales of firearms from your personal collection, you 
do not need to be licensed. You need to be licensed if you 
repetitively buy and sell firearms with the principal motive of 
making a profit.
    I think there is just a fundamental disagreement about what 
is actually on the page here, and I hope that as we have this 
debate, it is not anchored in perceived intentions of what the 
administration is quietly, secretly planning to do, but that 
the objections are based in the actual text of the executive 
order. And I think that has really been missing in this hearing 
so far. We have been missing disputes and objections that are 
anchored in the actual text. If you come back to the text, it 
says exactly what we all agree on, which is that we should 
enforce the existing law, we should require people engaged in 
the business of selling firearms to get licensed wherever they 
do so, and that we should let out from under that rubric of 
regulation those that are just selling firearms occasionally 
from their personal collection.
    Senator Shelby. Well, thank you, Senator. I believe the end 
game should be that we all uphold the Constitution, all 
amendments, including the Second Amendment.
    I want to thank the witnesses for coming here today. We 
have had an interesting debate, and I think the timeliness is 
good.
    Any questions that would be submitted to you, we would hope 
you would answer within 30 days for the record.

                     ADDITIONAL COMMITTEE QUESTIONS

    [The following questions were not asked at the hearing, but 
were submitted to the Department for response subsequent to the 
hearing:]
              Questions Submitted to Hon. Loretta E. Lynch
             Questions Submitted by Senator Lisa Murkowski
    Question. A premise of the enforcement guidance is that there is 
some substantial number of people conducting business at gun shows who 
are not licensed dealers but should be. I have heard from constituents 
who frequent gun shows telling me that this is not the case. In fact, 
they think that the administration is simply hostile to private seller 
transactions at gun shows and wants to chill lawful sales by non-
dealers because it cannot win political support for the universal 
background check.
    Is there any empirical data to suggest the extent of the problem 
the administration seeks to address and consistent with its ``Smart on 
Crime'' initiative does your department intend to approach enforcement 
in a targeted way?
    Answer. The guidance does not change the law. Drawing on court 
decisions and the statute itself, the guidance explains to the public 
when a Federal firearms license is required under Federal law. 
Importantly, the guidance makes clear that it does not matter where you 
conduct your business, from a store, at gun shows, or over the 
Internet: If you are engaged in the business of selling firearms, you 
need to get a license and conduct background checks. This guidance 
gathers existing case law in one place and discusses common scenarios 
so that there are clear, definitive standards set forth for anyone who 
seeks to sell a firearm, and individuals can know if they are required 
to register or not.
    I am confident that the actions announced earlier this year will 
help to make our communities safer, and our law enforcement more 
effective. I also have no illusions that these measures by themselves 
will end gun violence in America. At a time when there is so much work 
to be done and so much capacity for progress, there are many areas 
where only Congress can act. We would welcome the opportunity to work 
with you to further these goals.
    Consistent with our Smart on Crime policy, I have directed ATF to 
continue to focus its resources on illegal firearms traffickers who 
supply firearms to criminals and other persons prohibited from having 
them--whether those traffickers are unlawfully engaging in the business 
of dealing in firearms without a license, or are one of the small 
number of licensed entities who willfully violate the law to arm 
dangerous persons.
    Question. Another criticism that I have been hearing from my 
constituents is that your department will deploy the hundreds of new 
ATF agents the administration proposes to hire to walk up and down the 
aisles at gun shows, demanding that those who are not FFLs to prove 
that they are not violating the law, distracting the exhibitors from 
paying attention to their customers and driving traffic away from their 
booths.
    What is your reaction?
    Answer. This concern is unfounded. Consistent with our Smart on 
Crime policy, I have directed ATF to continue to focus its resources on 
illegal firearms traffickers who supply firearms to criminals and other 
persons prohibited from having them--whether those traffickers are 
unlawfully engaging in the business of dealing in firearms without a 
license, or are one of the small number of licensed entities who 
willfully violate the law to arm dangerous persons. Our efforts are 
focused not on law-abiding gun owners, but on violent offenders and the 
illegal firearms traffickers who supply their guns. We will continue 
that targeted approach going forward with our existing resources, as 
well as any additional resources we may receive to help reduce violent 
crime.
    Question. Does the department intend to issue written guidance to 
ATF agents on how they are to enforce the new guidance if so will that 
guidance be available to Congress and the public so we can ensure that 
it discourages harassment of those who are within the law?
    Answer. The Department's enforcement priorities have not changed as 
a result of the guidance. Consistent with our Smart on Crime policy, I 
have directed ATF to continue to focus its resources on illegal 
firearms traffickers who supply firearms to criminals and other persons 
prohibited from having them--whether those traffickers are unlawfully 
engaging in the business of dealing in firearms without a license, or 
are one of the small number of licensed entities who willfully violate 
the law to arm dangerous persons.
    Question. The President contends that the enforcement guidance 
doesn't make any new law but simply cobbles together elements of 
``engaging in the business'' which have been upheld by the courts. When 
my staff read the guidance they were expecting to see footnotes 
explaining which cases support which propositions--there were none 
there. This leads to suspicion that the Justice Department cherry-
picked the lower court case law which supported the policies it wanted 
to advance in the guidance and turned that case law into national 
precedent.
    How would you respond to this criticism regardless of the 
precedents do you really think that selling one gun makes one a gun 
dealer?
    Answer. The guidance ATF issued regarding when a person is 
``engaged in the business'' of dealing in firearms, and therefore must 
obtain a Federal license, did not in any way alter existing law. The 
purpose of the guidance is to help the public understand when a Federal 
firearms license is required. The guidance is intended to explain in 
plain language the statutory licensing framework and the factors that 
courts have used to determine whether a person 's activities require a 
license under Federal law. As such, the guidance did not include 
citations to specific cases; it does, however, fully and fairly 
summarize how the courts have applied the law.
    The statutory definition of ``engaged in the business,'' 18 U.S.C. 
Sec. 921(a)(21)(C), does not require any minimum number of sales for a 
person to be engaged in a firearms business requiring licensure. 
Rather, under the statute, the person must devote time, attention, and 
labor to dealing in firearms as a regular course of trade or business 
with the principal objective of livelihood and profit, and it excludes 
occasional sales, exchanges, or purchases of firearms for the 
enhancement of a personal collection.
    Courts interpreting this provision have identified factors that 
demonstrate when a person meets this statutory definition. As the 
guidance explains, these include: whether the person represents him/
herself as a dealer in firearms; whether the person is repetitively 
buying and selling firearms; the circumstances under which the person 
is selling firearms; and whether the person is looking to make a 
profit. No single factor is determinative, and the relative importance 
of any of the factors will vary depending on the facts and 
circumstances applicable to the individual seller.
    Question. In 1979, the Carter administration issued an Advance 
Notice of Proposed Rulemaking which suggested that the ATF ``engaging 
in the business regulation'' was vague and asking the public whether it 
should go through a notice and comment rulemaking to make it better 
understandable. That effort fell by the wayside but the regulation in 
question is just as vague today as it was in 1979.
    Why did the administration opt for writing guidance on ``engaging 
in the business'' behind closed doors rather than pick up on the notice 
and comment process that the Carter administration started and act more 
transparently?
    Answer. When ATF issued the Advance Notice of Proposed Rulemaking 
in 1979, there was no statutory definition of ``engaged in the 
business'' of dealing in firearms. That changed in 1986 with the 
passage of the Firearms Owners' Protection Act, which provided 
statutory definitions for the relevant terms. The guidance issued by 
ATF in January 2016 restates those statutory definitions as enacted by 
Congress, and explains how Federal courts have interpreted them. To the 
extent that there is any confusion about when a license is required 
under Federal law, we believe clearly communicating the scope of the 
statute, as interpreted by Federal courts, helps clarify those 
requirements and enhances compliance with the law.
                                 ______
                                 
                Questions Submitted by Senator Mark Kirk
    Question. As part of the President's Executive actions on firearms, 
the Bureau of Alcohol, Tobacco, Firearms and Explosives is directed to 
enhance the National Integrated Ballistics Information Network (NIBIN). 
NIBIN is a critical tool for uncovering investigative leads in gun 
crimes around the country.
    The Department of Justice (DOJ) recovers a number of firearms over 
the course of their law enforcement activities. How many recovered 
firearms are in the DOJ's possession? Does the DOJ test fire all 
recovered firearms to enter ballistic evidence into NIBIN? If not, what 
percentage of recovered firearms are test fired? What is the protocol 
for what firearms should and should not be test fired?
    Answer. All four Department of Justice law enforcement components 
(ATF, FBI, the Drug Enforcement Administration (DEA), and the U.S. 
Marshals Service (USMS)) routinely recover firearms in the course of 
their operations. Oftentimes, however, State and local law enforcement 
partners are the actual seizing entity of these firearms for 
evidentiary reasons. Moreover, the Department does not specifically 
track the number of firearms in the possession of each component at any 
given time, as that number will vary regularly based on the need to 
preserve firearms for evidence in criminal prosecutions and during the 
pendency of forfeiture proceedings. ATF took into custody 24,941 
firearms in calendar year 2015. Department policy requires that all its 
law enforcement components submit for entry into National Integrated 
Ballistics Information Network (NIBIN) ballistics information (test-
fires) from all recovered firearms that are suitable for entry into the 
network (suitability for entry is further described below). To ensure 
100 percent entry of ballistics information for suitable firearms it 
takes into custody, ATF requires entry of test-fires into NIBIN within 
7 days of a firearm being in custody. The other components also follow 
Department policy requiring 100 percent entry. In calendar year 2015, 
the number of firearms in ATF custody for which it directly entered 
test-fire information into NIBIN was 4,041; the other three components 
directly entered test-fire data from an additional 961 firearms.
    In most instances ATF, FBI, DEA and USMS do not directly submit 
ballistic information from suitable firearms they have recovered into 
NIBIN, but instead have State or local partners with NIBIN equipment 
enter the information into the network. This is the most efficient 
means to enter NIBIN data. Whether the Department component or other 
partner enters the recovered firearm ballistics information depends 
upon the circumstances of the particular investigation. For example, in 
calendar year 2015, State and local partners entered test-fire 
information into NIBIN for more than 20,000 of the firearms ATF took 
into custody.
    In general, firearms suitable for entry into NIBIN, for which test 
firing is mandatory, include all semi-automatic pistols including .22 
caliber, semi-automatic rifles, 12 gauge shotguns, and long guns that 
use handgun ammunition. Firearms that are not suitable for entry in 
NIBIN and are not typically test fired include revolvers, single shot 
or bolt action rifles, shotguns in other gauges, weapons never fired, 
or firearms deemed unsafe, inoperable, or incomplete.
    Question. What guidance does the DOJ provide to Federal, State, and 
local law enforcement agencies to facilitate successful submission of 
ballistics evidence into NIBIN? How does the DOJ assist law enforcement 
agencies in rural areas connect with NIBIN? What is the DOJ doing to 
ensure that NIBIN resources are properly utilized and distributed 
around the country? What steps is the DOJ taking to increase the reach 
of NIBIN? Is there an established timeline for growing the Network?
    Answer. Through ATF, the Department provides substantial guidance 
to Federal, State, and local partners to encourage and facilitate the 
submission of ballistics information to NIBIN. One of the primary 
vehicles ATF uses to provide guidance for the use of NIBIN is through 
publication and distribution of the NIBIN Reference Guide (the Guide). 
The Guide provides an outline to law enforcement agencies on how to 
collect and submit evidence to NIBIN, and sets forth model policies and 
procedures for agencies to follow to ensure effective and successful 
use of the system. The guide also provides in-depth guidance on how to 
successfully utilize NIBIN in the field to support ongoing criminal 
investigations and to implement long term strategic plans. In addition 
to publication of the Guide, ATF also provides extensive training to 
partner agencies on the use of NIBIN technology including a 
standardized NIBIN Authorization training course as well as more 
specialized courses on the BrassTRAX system and the use of the network 
itself. In calendar year 2015, ATF provided training and NIBIN access 
to 96 new State, local, or Federal users. In addition, the NIBIN staff 
provided generalized NIBIN training to more than 2,700 law enforcement 
and/or laboratory entities throughout the United States. Finally, ATF 
conducts on-site evaluations at partner locations--using both forensic 
lab and investigative experts--to provide individualized assessments of 
the effectiveness of the partners' policies and procedures, and 
recommendations for improvement.
    With respect to providing access to NIBIN for law enforcement in 
rural areas--or to any other department that does not have direct 
access--ATF will arrange for access to the network for any requesting 
U.S. law enforcement agency regardless of location. Access can be 
arranged either through establishment of a use agreement with a nearby 
State or local NIBIN site, or directly through ATF, utilizing one of 
ATF's Forensic Laboratories in California, Georgia, or Maryland.
    To ensure NIBIN resources are efficiently utilized and 
appropriately distributed, ATF closely follows and analyzes trends in 
violent crimes involving firearms and monitors usage of ATF-funded 
NIBIN equipment. If ATF-funded equipment is not being efficiently and 
effectively utilized by a NIBIN site, ATF will redeploy the equipment 
to identified areas of need and provide the training and support 
necessary for success in the new locations.
    The Department is employing a variety of strategies to increase the 
reach of NIBIN. One of the primary mechanisms to expand NIBIN is 
educating law enforcement on the value of participating in the network. 
ATF actively promotes participation in NIBIN throughout the law 
enforcement community, citing examples of successful investigations and 
prosecutions to demonstrate the effectiveness of the program in 
combatting firearm violence. For the network to be the most effective, 
the more agencies contribute ballistics data to the network, the 
greater the number of successful correlations there will be between 
incidents and investigative leads generated to help solve and prevent 
violent firearm crimes.
    ATF also promotes expansion of the network's capacity by 
facilitating the purchase of NIBIN hardware by agencies with the 
financial means to do so or, when appropriate to ensure service 
availability where it is most needed, by funding the purchase of 
hardware for agencies unable to afford the cost. Regardless of whether 
an agency self-purchases NIBIN equipment or ATF funds the acquisition, 
ATF ensures that NIBIN sites meet established security standards and 
facilitates access to the network via secure telecommunication lines.
    Finally, ATF is expanding the reach of NIBIN through the creation 
of the NIBIN National Correlation and Training Center (NNCTC) in 
Huntsville, Alabama. The NNCTC began operations in February 2016. It 
will provide NIBIN correlation (or ``matching'') services at one 
national location, rather than requiring local police departments to do 
that work themselves. The NNCTC will immediately service 10-15 percent 
of NIBIN partner sites, and expects to bring all other sites on-line 
within 18 months, depending on funding. When fully operational, it will 
have the capacity to make connections between crime guns locally, 
regionally, and nationally. The Department's goal is to initially 
provide investigative leads to participants within 48-72 hours, and to 
reduce that time to 24-48 hours when fully operational and staffed. By 
assuming the correlation function, the NNCTC will allow individual 
sites to utilize their personnel for NIBIN evidence acquisition, 
thereby enhancing the reach and effectiveness of NIBIN, and will allow 
individual sites the option of reducing hardware costs by discontinuing 
the use of hardware needed to conduct correlations required for NIBIN 
usage.
    Question. What steps is the DOJ taking to transition NIBIN from an 
investigatory tool to an evidentiary tool?
    Answer. NIBIN is an essential element of the Department's violent 
crime prevention strategy. To ensure the most effective use of NIBIN, 
over the last several years ATF has restructured the program to expand 
its use from that of a forensic tool primarily utilized to process 
firearm ballistics as trial evidence, to a broader use as a holistic 
investigative mechanism. This enables law enforcement to proactively 
establish links between firearms used in previously unrelated violent 
crime incidents, thereby allowing for the identification and 
apprehension of the shooters responsible for the crime and the sources 
of the firearms used in those crimes. By providing leads and evidence 
needed to proactively identify and remove shooters and their firearm 
suppliers from the streets, NIBIN helps law enforcement prevent and 
reduce violent firearm crimes.
    This is perhaps most apparent in the way that NIBIN has been 
integrated into ATF's Crime Gun Intelligence Center (CGIC) model. For 
example, in Denver, Colorado, ATF has established a multi-agency CGIC 
that centers its investigative strategies on synthesizing NIBIN with 
other intelligence and investigative tools such as crime gun tracing, 
acoustic gunshot detection technology, prompt analysis of evidence from 
separate shooting incidents linked by NIBIN ``hits,'' and human 
intelligence from witnesses, cooperating defendants, and confidential 
sources.
    The Denver CGIC has extensively educated Colorado law enforcement 
agencies on the importance of comprehensive collection and processing 
of firearm ballistics evidence at all shooting scenes, regardless of 
the crime involved in the discharge of the firearm, for timely 
submission to NIBIN. When a NIBIN ``hit'' links shootings, the CGIC 
engages in immediate follow-up through analysis of reports and all 
available evidence from each incident to generate actionable leads to 
its field investigators. By integrating NIBIN with these other tools, 
the Denver CGIC proactively identifies shooters and sources of crime 
guns, allowing law enforcement to arrest and prosecute shooters and 
other offenders at every level of involvement in violent firearm 
crimes.
                                 ______
                                 
              Questions Submitted by Senator John Boozman
    Question. Please explain to my fellow Arkansans, and the American 
people, what the President's ``engaged in the business'' executive 
action actually does.
    How does it affect our citizens, and how does it combat violent 
crime?
    Answer. The President's ``engaged in the business'' executive 
action is a guidance document that explains, in plain language, the 
Federal law governing when a Federal license is required to buy and 
sell firearms. By consolidating statutory provisions, case law, and 
specific, concrete examples of real-world situations, the guidance 
provides a road-map for compliance with existing law.
    Federal firearms licensees are critical partners in promoting 
public safety because, among other things, they help keep firearms out 
of the hands of prohibited persons by running background checks on 
potential firearms purchasers, ensure that crime guns can be traced 
back to their first retail purchaser by keeping records of 
transactions, and facilitate safe storage of firearms by providing 
child safety locks with every transferred handgun and having secure gun 
storage or safety locks available any place where they sell firearms.
    Question. Also, please explain how we can trust you that this 
``clarification'' of existing law, coupled with the request for 200 
more ATF agents, will not turn into harassment for law-abiding citizens 
who enjoy selling or trading guns with family or friends to enhance 
their own personal collection?
    Answer. This clarification of existing law is just that, 
clarification. It does not change the Department of Justice's (the 
Department) interpretation of the definition of ``engaged in the 
business'' or its enforcement priorities, but rather aims to provide 
additional guidance to the general public so that individuals can 
analyze their personal circumstances and determine whether their 
activities constitute dealing in firearms and therefore require a 
Federal firearms license.
    Consistent with our Smart on Crime policy, I have directed the 
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to continue 
to focus its resources on illegal firearms traffickers who supply 
firearms to criminals and other persons prohibited from having them--
whether those traffickers are unlawfully engaging in the business of 
dealing in firearms without a license, or are one of the small number 
of licensed entities who willfully violate the law to arm dangerous 
persons. Our efforts are focused not on law-abiding gun owners, but on 
violent offenders and the illegal firearms traffickers who supply their 
guns. We will continue that targeted approach going forward with our 
existing resources, as well as any additional resources we may receive 
to help reduce violent crime.
    Question. Federal prosecutions of gun crimes have continually and 
significantly declined since the President has taken office. Reports 
show that Federal criminal weapons convictions are down 34.8 percent 
from 2005. In the President's own Executive actions, he stated that for 
the past several years under the department's Smart on Crime 
initiative, the department has focused resources on the most impactful 
cases, including targeting violent offenders, illegal firearms 
traffickers, and dangerous individuals who bypass the background check 
system. In complete contrast, former Attorney General Eric Holder 
issued a memo in 2010, and another in 2013, which states that 
prosecutors should generally advocate for a sentence utilizing the 
sentencing guidelines, with clear permission, and some interpret as a 
push, to advocate below the guidelines. His 2013 memo goes even further 
as to require Federal prosecutors to not charge violations that trigger 
minimum mandatory sentences but in extreme situations, and to not 
charge certain drug offenses even though the large amount of drugs 
involved triggered a harsher sentence.
    Attorney General Lynch, is former Attorney General Holder's memo 
still in effect?
    Answer. The memoranda issued by former Attorney General Holder on 
May 19, 2010 and August 12, 2013, cited in the question for the record, 
reflects the current policy of the Department.
    It is important to prosecute those who violate Federal firearms 
laws. I have long recognized the importance of ensuring that the 
Department focuses its limited resources on the most serious cases at 
the Federal level, and that we also work with State and local partners 
to ensure that every case receives due attention. In Fiscal Year 2015, 
the Department actually increased the number of defendants prosecuted 
for firearms and violent crimes. Also, a large percentage of the 
Department 's overall total caseload involves crimes of violence and 
firearms. Any decrease over the last 10 years appears largely 
consistent with overall crime trends, as the Federal Bureau of 
Investigation's (FBI) Uniform Crime Reporting (UCR) data estimate a 
16.2 percent decrease nationwide of all violent crimes from 2005 to 
2014.
    In January 2016, I had a call with all 93 U.S. Attorneys to direct 
them to continue to focus their resources--as they have in recent years 
under the Department's Smart on Crime initiative--on the most impactful 
cases, including those targeting violent offenders, illegal firearms 
traffickers, and the most dangerous individuals who acquire weapons 
illegally or try to manipulate the background check system.
    Consistent with a Smart on Crime approach, ATF has several 
initiatives focusing on gun crimes which pose the most significant 
threat to public safety, including its new Internet Investigations 
Center (IIC), which combats illegal firearms trafficking facilitated by 
the Internet.
    Question. Will you be continuing this philosophy, or what are your 
plans as the AG with regards to filing charges and minimum mandatory 
sentences?
    Answer. As the memorandum issued by former Attorney General Holder 
on May 19, 2010 reflects, the Department is committed to the Principles 
of Federal Prosecution, as written in Title 9 of the U.S. Attorneys' 
Manual, Chapter 27. Federal prosecutors should charge the most serious 
offense that is consistent with the nature of the defendant's conduct, 
and that is likely to result in a sustainable conviction. USAM 9-
27.300. The Department will continue to emphasize that charging, plea 
agreements, and advocacy at sentencing should always reflect an 
individualized assessment and fairly represent the defendant's criminal 
conduct. The 2010 memorandum specifically states that the sentencing 
``guidelines remain important in furthering the goal of national 
uniformity throughout the Federal system.'' Any departures and 
variances from the guidelines require supervisory approval and must be 
based on specific and articulable factors that follow from the 
individualized assessment of the facts and circumstances of each 
particular case. See ``Memorandum to All Federal Prosecutors, 
Department Policy on Charging and Sentencing, May 19, 2010.''
    The Department will also continue to utilize its resources to focus 
on matters with a substantial Federal interest and reserve the most 
severe mandatory minimum penalties for serious, high-level, or violent 
drug traffickers, as delineated in the memorandum issued by former 
Attorney General Holder on August 12, 2013. To achieve this end, this 
memorandum specifies criteria common to nonviolent low-level drug 
offenders where prosecutors should decline to charge the quantity 
necessary to trigger a mandatory minimum sentence, and outlines a 
framework for sentencing advocacy, which requires the application of 
the United States Sentencing Guidelines and provides for the 
utilization of the factors listed in 18 U.S.C. Sec. 3553(a) in certain 
circumstances. See ``Memorandum to the United States Attorneys and 
Assistant Attorney General for the Criminal Division, Department Policy 
on Charging Mandatory Minimum Sentences and Recidivist Enhancements in 
Certain Drug Cases, August 12, 2013.''
    Question. Based on a 2013 study conducted by the National Institute 
of Justice on violent crime reduction strategies such as, gun buybacks, 
large capacity magazine restrictions, universal background checks, 
assault weapon bans, and smart gun technology, all were found to be 
ineffective in combatting and reducing violent crime. With regards to 
the smart gun technology, NIJ determined that this would be unlikely to 
affect gun crime because of the number of firearms already in 
circulation. The President's Executive action authorizes the 
expenditure of funds by three different departments to further the 
research into smart gun technology.
    How do you justify the Department of Justice spending taxpayers' 
dollars on a program that evidence already indicates will not likely 
reduce or affect violent crime?
    Answer. Given the toll that gun violence takes in this country, we 
must continue to advance the science that informs strategies to reduce 
gun violence, including gun safety technology. This belief is supported 
by a 2013 report of the Institute of Medicine, Priorities for Research 
to Reduce the Threat of Firearm-Related Violence (http://www.nap.edu/
catalog/18319/priorities-for-research-to-reduce-the-threat-of-firearm-
related-violence), which identified major gaps in the understanding of 
gun violence and its prevention and stated the importance of investing 
in and advancing the science related to the prevention of gun violence.
    The Presidential Memorandum lays out a plan to expand the Federal 
Government's investment in and use of gun safety technology. It directs 
the Departments of Defense, Justice, and Homeland Security to conduct 
coordinated research and development as well as to regularly review 
available products and consult with one another to consider whether 
they are consistent with operational requirements. The memorandum does 
not establish any requirement for adoption. If the technology is 
eventually commercialized, the Departments will have to determine 
whether using such technology is consistent with operational needs.
    In June 2013, the National Institute of Justice (NIJ) published A 
Review of Gun Safety Technologies. The review summarized existing and 
emerging technologies to inform future research, development and 
innovation in gun safety technology. When it was released, no 
personalized ``smart guns'' were commercially available in the United 
States, but at least three products--two handguns and a shotgun--were 
at a technology maturity level that can at least be described as pre-
production.
    The 2013 document referred to in the question was not a research 
study and was not officially distributed or published by the Department 
of Justice, but rather was an internal memo written by a then-NIJ 
deputy director to provide what the document's author refers to as a 
``cursory summary of select [firearm violence reduction] initiatives'' 
at that time. The document solely reflects the opinions of its author, 
and was not the product of an NIJ research grant or study.
    Question. In early December, Congress had voted on various firearm 
related amendments. One was to prevent individuals listed on the 
terrorist watchlist from legally purchasing firearms.
    I would like for you to explain to me as much as possible without 
being in a classified setting, what the terrorist watchlist is, and how 
does one come to be placed on it, without violating their due process 
protections afforded them through the Fifth Amendment of the 
U.S.Constitution .
    Answer. Following the attacks of September 11, 2001, Congress and 
the President mandated that Federal executive departments and agencies 
share terrorism information with those in the counterterrorism 
community responsible for protecting the homeland, such as U.S. Customs 
and Border Protection (CBP) officers who conduct inspections at U.S. 
ports of entry, Department of State (DOS) personnel conducting visa and 
passport screening, Transportation Security Administration (TSA) 
personnel responsible for aviation security, and domestic law 
enforcement officers.
    Prior to the attacks of September 11, 2001, 9 U.S. Government 
agencies maintained 12 different watchlists intended to accomplish a 
variety of purposes. In 2003, the Terrorist Screening Database (TSDB), 
also referred to as the ``terrorist watchlist,''was created by the 
Terrorist Screening Center (TSC) pursuant to the Homeland Security 
Presidential Directive Six (HSPD-6) to consolidate the U.S. 
Government's numerous watchlists into a single database, and to provide 
for the appropriate and lawful use of terrorist information in 
screening processes. To accomplish this, the TSDB contains law 
enforcement sensitive terrorist identity information consisting of 
biographic identifying information such as name or date of birth, or 
biometric information such as photographs, iris scans, and 
fingerprints. The identity of persons in the TSDB is treated as law 
enforcement sensitive so that the database can be shared with domestic 
and foreign screening partners. The TSDB does not include substantive 
derogatory intelligence information or classified national security 
information, but nonetheless contains sensitive national security and 
law enforcement information concerning the identity of known or 
suspected terrorists. The National Counterterrorism Center (NCTC)'s 
Terrorist Identities Datamart Environment (TIDE) database contains 
classified national security information about international known and 
suspected terrorists, their associates and international terror groups.
    The TSDB is continuously updated and receives terrorist identity 
information for possible inclusion from two sources: (1) the NCTC, 
which provides information about known and suspected international 
terrorists; and (2) the FBI, which provides information about known and 
suspected domestic terrorists. While operated as a focused identities 
screening database, the TSDB contains two subsets, known as the No Fly 
and Selectee lists. Generally speaking, the No Fly list contains 
identities of individuals who are barred from flying on commercial 
aircraft out of, within, or over the United States because they pose a 
threat of committing an act of terrorism, while individuals on the 
Selectee list are subject to heightened levels of security screening.
    Terrorist identity information is added to and removed from the 
TSDB through an ongoing nomination and review process. In general, 
nominations of known and suspected international terrorists are 
submitted by Federal departments and agencies (including the FBI) for 
inclusion in TIDE. NCTC then reviews the nominations and provides the 
TSDB with Unclassified/For Official Use Only information about the 
known and suspected international terrorists. Since FBI is responsible 
for the nominations of known and suspected domestic terrorists, the FBI 
submits those nominations directly to the TSC.
    Inclusion in the TSDB is not a determination that someone has 
committed a crime. Rather, it is an analytic assessment based on a 
review of available intelligence and investigative information that the 
person meets the applicable criteria for inclusion. Interagency-
approved policies and procedures provide the standards for this 
assessment. With limited exceptions, nominations to the TSDB must 
satisfy minimum identifying criteria to allow screeners and law 
enforcement officers to be able to discern a match, and must include 
minimum substantive derogatory information. In order to abide by the 
Equal Protection Clause of the U.S. Constitution, nominations must not 
be based solely on the individual's race, ethnicity, national origin, 
or religious affiliation. Further, engaging in First Amendment 
protected activity alone cannot be the basis for nominating an 
individual for inclusion in the TSDB. These protected activities 
include the exercise of free speech, the exercise of religion, freedom 
of the press, freedom of peaceful assembly, and the right to petition 
the Government for redress of grievances.
    Upon receiving a TSDB nomination, TSC personnel review it to 
determine: (a) whether the biographic information associated with the 
nomination is sufficient to support the screening activities of the 
receiving entities (e.g., CBP, DOS, TSA), that use the data to match to 
or distinguish an individual against a known or suspected terrorist in 
the TSDB; and (b) whether the nomination is supported by derogatory 
information that meets the criteria for inclusion in the TSDB.
    Before accepting a new nomination into the TSDB, TSC personnel use 
a multifaceted review process that involves coordination with NCTC and 
the nominating agency, as necessary, to verify that the nomination 
meets the criteria for inclusion and is not based on impermissible 
grounds. At the conclusion of the TSC's review, TSC personnel will 
either accept or reject the nomination for inclusion into the TSDB.
    As directed by Congress, the Department of Homeland Security (DHS) 
has established a formal administrative process, the DHS Traveler 
Redress Inquiry Program (DHS TRIP), which provides the public with a 
single point of contact for individuals who have inquiries or seek 
resolution regarding difficulties they may have experienced during 
travel screening at transportation hubs (such as airports) or during 
their inspection at a U.S. port of entry. This program acts as a 
mechanism for travelers who have, for example, been delayed or denied 
airline boarding, delayed or denied entry into or exit from the United 
States at a port of entry, or have been repeatedly referred for 
additional (secondary) screening at an airport. DHS TRIP is also the 
vehicle through which individuals may seek redress for travel 
difficulties they perceive to be the result of their inclusion in the 
TSDB.
    When a traveler's inquiry may appear to concern data in the TSDB 
(i.e., if the individual's name matches or closely matches that of a 
person listed in the TSDB), the inquiry is referred by DHS to the TSC 
for further review. In the case of individuals who are, in fact, 
included in the TSDB, TSC conducts an in-depth review to determine 
whether the person continues to meet the criteria for inclusion, or 
whether the person's status should be changed. As part of this review, 
the TSC contacts the original nominating agency to ensure that its 
analysis is based on the most recent and complete information 
available. Where appropriate, the TSC will remove any individual from 
the TSDB or downgrade the individual's status when information 
indicates the person no longer meets the specific criteria for 
inclusion. To the extent feasible and consistent with the national 
security and law enforcement interests at stake, U.S. persons may 
receive information regarding the reasons supporting their placement on 
the No Fly List. The amount and type of information provided will vary 
on a case-by-case basis, depending on the facts and circumstances. 
Lastly, the revised redress procedures also provide the opportunity for 
the person to submit material they believe is relevant to their 
placement on the No Fly List for review and consideration during an 
administrative appeal of the No Fly determination.

                          SUBCOMMITTEE RECESS

    The subcommittee stands in recess, subject to the call of 
the chair. Thank you very much.
    [Whereupon, at 12:56 p.m., Wednesday, January 20, the 
subcommittee was recessed, to reconvene subject to the call of 
the Chair.]
```