Hearings to examine the Second Amendment.

The committee will now come to order. As we reflect on the 250th anniversary of our nation, some of our most cherished rights stand at the crossroads. Modern prosperity and technology provide us with the means to enjoy and exercise our God-given rights to a greater extent than ever before. Yet as the means and interest of Americans in exercising those rights have increased, so has the desire and tools for tyrants, both inside and outside of government, to tighten control over who, where, and how these rights are exercised. We have discussed at great length the grave attempts by our government to censor unfavored, unpopular, and inconvenient speech. No matter how true, during the pandemic and beyond. We've also examined the threats to privacy and collection of data about all aspects of our lives by a myriad of government agencies. Today we examine the growing threats by our government to restrict the right to keep and bear arms guaranteed by the Second Amendment. In the wake of a federal officer shooting and killing a protester who was legally carrying a holstered firearm, a succession of federal officials rushed to declare that citizens cannot exercise their First and Second Amendment rights at the same time. Administration officials stated, you cannot bring a firearm loaded with multiple magazines to any sort of protest that you want, it's that simple. Another administration official said, if you approach law enforcement with a gun, there's a high likelihood they will be legally justified in shooting you, don't do it. These statements were alarming and are part of the reason we're here today. Government employees take an oath to support and defend the entire Constitution of the United States, not just the parts which are convenient depending on the political news of the day. It is not their job to decide when and which of your rights count on any given day. Just as our constitutional rights are nonpartisan and belong to all Americans across the political spectrum, these liberties are also non-negotiable. These freedoms are not independent of each other, but are undeniably bolstered by one another. They ensure that not only that Americans have rights, but that they can defend and speak about those rights without fear of government overreach. Unlike free speech, free exercise, and privacy, the right to keep and bear arms has been strengthened recently by the courts and restrictions on that right are being overturned. In 2008, the Supreme Court upheld the Heller case, an individual's right to possess firearms in the home. Two years later, the court ruled in McDonald case that the right to bear arms is applicable to laws enacted at the state and local levels. And in 2022, the court again ruled on the side of liberty in the Bruen case, stating that the Second Amendment protects an individual's right to carry a handgun for self-defense outside the home. Even though the Supreme Court has made these rulings, politicians have not given up. Their attempts to usurp our constitutional right to keep and bear arms continues. In recent months we have seen in Virginia, the state where we won our independence from the tyrannical British crown, forced through the General Assembly countless pieces of misguided legislation intending to disarm lawful gun owners. In fact, just days ago, bills sent to the governor from the state legislature aim to prohibit the carrying of a loaded firearm in public across the Commonwealth. Another bill, poised to become law, makes it a class one misdemeanor for any person who imports, sells, manufactures, purchases, or transfers an assault firearm, all while creating an exemption for any government officer. As we see during as we saw during the pandemic, the government's mantra continues to be rules for thee, but not for me. Unfortunately, the case of Virginia is not unique. Many other states, including Colorado, Rhode Island, California, pass similarly egregious legislation. While most of these laws will undoubtedly be challenged through the courts, this should be a wake-up call for every state across the nation. It's important to look at these and other specific instances of infringements on the right to keep and bear arms. We must be watchful to any and all violations and act accordingly. But what we really should do is aspire to in this 250th year of our nation is a government that stops asking how much restriction on our liberties it can get away with and instead asks how it can protect and promote all of our rights, including our right to keep and bear arms. The ranking member is recognized for his opening statement.

Well, thank you, Mr. Chairman. And Mr. Chairman, I certainly appreciate you convening this committee for the discussion here today. But given President Trump's unconstitutional and unauthorized decision to go to war with Iran, his abuse of power to enrich himself and punish his political enemies, and his decision to usurp congressional powers, including the appropriations of funds, I'm troubled by the topic that we've chosen. So while I agree that the Constitution gives Americans the right to bear arms, the Second Amendment is one of many such liberties that are guaranteed by the U.S. Constitution. And while there are maybe some discrete examples where the right has been tested, the Second Amendment is simply not under the same threat as so many of our other constitutional rights today. The Trump administration's violations of Americans' First, Fourth, and Fifth Amendment rights and the administration's flouting of Congress's constitutional authorities are basically creating a crisis for the rule of law in our country. Meanwhile, Republicans in control of Congress have become mere cheerleaders of the executive while they allow the constitutional powers that Congress has to be undermined. That's something that as Senate top oversight body, I believe this committee should examine on a larger scale and hope that you would consider that, Mr. Chairman. So today I want to expand the discussion to address these other issues and what Congress must do to not only reclaim our own authorities as the co-equal branch of government, but also how we can restore the checks and balances that our Constitution created to ensure that no single branch of government can infringe on the constitutional rights and protections that are the very core of our democracy. The Trump administration has pushed the bounds of executive authority further than any other president, and our Republican-led Congress has failed to push back, instead seating its constitutional delegated responsibilities almost entirely to the president. Those in control have laid down and allowed loyalty to party to override duty and even self-interest when preserving a meaningful check on the president. Now, there's no question that past administrations of both parties have tested these boundaries of their authorities, and Congress led by both parties have basically been responsible for delegating away these authorities over many years. But today, today we have an administration that has refused to follow the laws passed by Congress, abused emergency powers for political purposes, imposed chaotic tariffs that have raised prices on everyday goods for American families, bypassed Congress to wage unjustified military interventions, and is now trying to completely circumvent Congress's power of the purse by refusing to pass bipartisan appropriation laws to fund key functions of government. And in return, we have a Republican majority that has almost entirely capitulated to the president's whims. On top of that, this administration has repeatedly violated the First Amendment rights of Americans by retaliating against and even going so far as to arrest individuals who exercise their rights to free speech, assembly, religion, petitioning the government, and the press. This administration has violated Americans' Fourth Amendment rights by allowing immigration enforcement officers to enter and search people's homes without a judicial warrant. And it has violated Americans' right to due process under the Fifth Amendment, detaining and removing individuals to countries they have no connection to and without any opportunity to petition for redress from the government in the courts. Last year I released a report detailing these constitutional violations and the overreach from the executive branch. And in that report I laid out how the checks and balances designed in our Constitution are absolutely vital to protecting Americans' freedoms. And I warned how President Trump's unprecedented actions to usurp Congress's Article 1 powers, disregard the limitations of the executive in Article 2, and defy the judiciary's Article 3 lawful court orders have undermined our democratic principles and left us with a president who now is completely unaccountable. The Constitution provides Congress with the means necessary to check an administration that is eroding the very principles and the institutions that have always made this country great. But that is only possible if Congress, especially the party in power, currently the Republican majority, stands up and takes action. And I know many of my colleagues on the other side of the aisle are eager to discuss their views on perceived attacks on the Second Amendment. But I urge all of you to join me in broadening this discussion and finding the courage to take action that will protect our laws and our most fundamental rights before it's too late. Thank you, Mr. Chairman.

Our first witness will be Representative Thomas Massie. Thomas Massie represents Kentucky's fourth congressional district, he serves as the chairman of the House Second Amendment Caucus and sits on the Judiciary Subcommittee on the Constitution and Limited Government. Congressman Massie, you are recognized for your opening statement.

Thank you, Chairman Paul and Ranking Member Peters for allowing me to speak to the upper chamber here today. I'm very passionate about this issue of the right to keep and bear arms. I got my first firearm when I was 12 years old from my father and with that I learned the responsibility and the rights that come with owning a firearm. I formed the Second Amendment Caucus about a decade ago and have been using that venue to bring in people like Alan Gura, the lawyer who was responsible for arguing the Heller case and also the McDonald case, and he won both of those cases in the Supreme Court. In fact, we've had Dick Heller in our caucus and we've had some of those brave men who have stopped mass public shootings. And it's been a great venue for teaching myself and others more about the Second Amendment. In keeping with the committee's request, I prepared a speech, but I'll only deliver part of that and then with your indulgence I'd like to talk about some legislation that I think is important that's sitting in the House. The simple and direct language of our Constitution is clear, the right of the people to keep and bear arms shall not be infringed. There are no qualifiers on who may keep arms, what types of arms they may keep or for what purposes, and it certainly doesn't say that the right to bear arms is about trivial matters like deer hunting or skeet shooting. The Second Amendment exists for one clear reason, defense. For the defense of one's home, one's family, and one's community. For the defense of liberty and safety, not only from a lone assailant, but from the whole of tyrannical government. That is why we have the Second Amendment. Our founders understood the greatest risks to liberty are not always found outside a nation's borders, even though we go looking for fights abroad sometimes too frequently. But oftentimes from within, when a corrupt and dangerous few grow too ambitious and attempt to subjugate the masses. And when such tyranny arises, snakes prefer the path of least resistance. They prefer a population that is vulnerable. And as George Mason reminded us in 1788, to disarm the people is the best and most effectual way to enslave them. History's riddled with oppressive states that stripped and abused their own people to keep riches for the assaulting cabal, and in every instance, before those snakes bit, they first took away the guns. Whether it was Hitler, Stalin, Mao, Castro, or Chavez, gun confiscations and restrictions came first, then the infringement of all the other liberties, and in many cases, millions were killed by their own governments. It's not by the grace that America has averted similar atrocities, it's because of our Constitution's design. As Madison wrote in Federalist 46, the advantage of being armed with the Americans possess over the people of almost every other nation forms a barrier against the enterprises of ambition, a barrier against tyranny and oppression by a ruling class. To this point, I think it's incumbent upon us to advance legislation that will protect the Second Amendment here. We've sworn an oath to the Constitution to protect it from enemies from within and abroad. Four pieces of legislation that I've sponsored in the House that I want to talk about today. One is to repeal the Gun-Free School Zones Act. 94 percent of mass public shootings happen in gun-free zones, and so we shouldn't be advertising as the default that our children are sitting ducks that are unprotected. In the states and school zones where they have allowed the carrying of firearms, there have been no such catastrophes. The other bill that's easy to explain is a bill to allow 18 to 21-year-olds to buy handguns from a federally licensed dealer. I think it's somewhat ridiculous that you can be conscripted to serve your country in a war, you can be 18, 19, or 20 and forced into service to fight for your country, but you can't defend your own family with a handgun that you've bought at a licensed dealer, so we should repeal this federal restriction. A piece of legislation that's coming up in the House next month, which I think is very important, is to report some of the data that we collect in the NICS database. When you go to buy a gun, you fill out a Form 4473, it's that gold form, and they collect data on there that they never report. And what we've discovered through my friend John Lott, who's an economist and a statistician and an author, is that there's inherent racism in the NICS background check system. Because it's sloppy and they check only phonetically similar names, when you go to purchase a gun, you can be deprived of purchasing that gun. And the appeals process can get messy to prove you're not the same person that they think is the person who's prohibited. It turns out if you're a Black American or Hispanic, you're far more likely to share a name phonetically with somebody who's a prohibited person who's been convicted of a crime of a year that has a punishment of a year or more. In fact, you're probably twice as likely if you're Hispanic to be falsely denied the purchase of a handgun and three times as likely if you're Black to be denied the purchase of a gun at a dealership at a dealer. So this bill that's coming up in the House would just and by the way, it's passed unanimously in our Judiciary Committee, Democrats and Republicans have both voted for it, simply requires the DOJ to publish that data. Not of individuals, but in the aggregate of the denials by sex and also by race or ethnicity. Finally, the bill that I'm most excited about is the National Constitutional Carry Act. And Senator Lee has that here in the Senate now and some of you are sponsors of that, I thank you. Several years ago, there was legislation advanced to force reciprocity among the states for concealed carry permits. Now that made sense at the time because in most of the states you needed a permit to carry a firearm. But 29 states now recognize that the right to keep and bear arms should not require permission from your government to bear those arms. And so they have permitless carry. I've advanced a bill, the National Constitutional Carry Act, that would extend that to all 50 states and the territories. Now you may ask, well, does that violate the 10th Amendment? Are you infringing on state rights? Well, thanks to the McDonald case in 2010, which came two years after the Heller case, see Heller was decided in D.C. so it didn't impinge on the states, but the McDonald case versus Chicago incorporated the Second Amendment to the states. So the states are constrained by the Second Amendment. So no, it does not violate the 10th Amendment to tell the states that you must follow the right to keep and bear arms in the Second Amendment. So I'd love to see some action on that here in the Senate. With that, I'll return to my prepared remarks and close. When we look to our Constitution, remember it's a document by our people for the purpose of constraining our government, not the other way around. The Second Amendment is the ultimate check on our government. Any attack on those core tenets, whether it's the Second Amendment, the First Amendment, or the Fourth Amendment, or any other provision of our Constitution is dangerous and wrong. And one does not need to look too far back in history to find examples of why. And I'll close with these words from Patrick Henry. Guard with jealous attention the public liberty. Suspect everyone who approaches the jewel. The great object is that every man be armed. Thank you very much for allowing me to testify today.

Congressman Massie, thank you for your statement today. We appreciate your time. Thanks for coming to be with us. The next panel will now come forward and take their seats. Congressman Massie, thank you for your statement today. We appreciate your time. Thanks for coming to be with us. The next panel will now come forward and take your places. It is the practice of this committee to swear in witnesses. Will each of you please stand and raise your right hand? Do you swear that the testimony you will give before this committee will be the whole truth, uh, will be the truth, the whole truth, and nothing but the truth, so help you God? Thank you.

Thank you, Mr. Chairman. Our next witness is Professor Stephen Vladeck, the...

Our first witness will be Ken Cuccinelli, currently serves as the senior fellow for Homeland Security and Immigration for the Center for Renewing America. He previously served in the Virginia Senate and as Virginia's Attorney General from 2010 to 2014. Mr. Cuccinelli, welcome to the committee.

And members of the committee, thank you for the opportunity to testify today on the evolving landscape of Second Amendment rights. I'll focus on recent developments in the Commonwealth of Virginia which provide a timely and instructive case study of how rapidly state-level policy can reshape the practical exercise of a constitutional right. In 2026, Virginia's General Assembly passed a sweeping package of firearm-related legislation. These measures taken together represent the most significant shift in firearm policy in Virginia's modern history. They illustrate not only the breadth of regulatory approaches being pursued nationwide, but also the constitutional tensions likely to define Second Amendment and state-level equivalence jurisprudence in the coming years. Most notably, Virginia lawmakers approved legislation that would prohibit the sale, manufacture, importation, and transfer of many commonly owned semi-automatic firearms classified as assault firearms, along with magazines capable of holding more than 15 rounds. While generally allowing current owners to retain previously acquired firearms, it would effectively halt the future legal acquisition of entire categories of arms that are widely possessed for lawful purposes and makes it impossible for current owners to transfer their firearms with exceptions for government officials, which I'll touch on later. This type of prospective ban raises serious constitutional questions under both federal and Virginia constitutions. In its individual rights jurisprudence, the U.S. Supreme Court has emphasized that the Second Amendment protects arms in common use for lawful purposes such as self-defense. Policies that prohibit future acquisition while allowing continued possession create a legal paradox. They implicitly acknowledge the widespread lawful ownership of these firearms while simultaneously restricting future citizens from exercising the same right. In addition to firearm-specific bans, Virginia's expanding restrictions on where firearms may be carried beyond historically recognized sensitive places to potentially encompass large portions of ordinary public life. This raises important questions under the Supreme Court's framework requiring firearm regulations to be consistent with the nation's historical tradition of regulation. Virginia lawmakers have also pursued policies imposing affirmative legal duties on firearm owners, secure storage legislation would require individuals to store firearms in a manner that prevents access by others, and while the goal of preventing unauthorized access is widely shared, such mandates must be carefully evaluated to ensure they do not unduly burden the core right of self-defense within the home, long recognized as a central component of the Second Amendment as noted, for example, in the Heller decision. Further, the Commonwealth is expanding its use of red flag laws, these laws allow for temporary removal of firearms from individuals deemed to pose a risk, although courts have generally upheld the concept, expansions to these laws, particularly those affecting evidentiary standards, duration, or who may initiate proceedings raise due process concerns that deserve careful scrutiny. I fully expect to see the 2026 expansions of these laws weaponized to punish gun owners for political purposes completely unrelated to gun safety. Finally, the Commonwealth has moved toward allowing civil liability actions against firearm manufacturers and distributors. Their approach seeks to navigate around existing federal protections in an effort to destroy this industry through litigation. Taken together, these measures demonstrate a broader trend to transform firearm policy from a framework focused primarily on prohibited persons and background checks into one that increasingly regulates categories of arms, locations of carry, methods of storage, and the broader ecosystem of lawful commerce. All in an effort to cut into the right of law-abiding gun owners and potential gun owners and in many respects to attempt to turn such citizens into lawbreakers of bureaucratic restrictions in order to take their guns away or deter them from buying guns in the first first place. In addition to obvious litigation, this devolution also creates growing divergence among states leading to patchwork of laws that may complicate compliance for ordinary citizens. And I would respectfully suggest that that is part of the point. It is one way of attacking Second Amendment rights as I noted as a practical matter. One law carried over to next year in the Virginia General Assembly is a double-digit tax rate on gun and ammunition purchases. And as we know from the beginning of the Republic, the power to tax is the power to destroy. And that is what is intended for it to be used as and I expect to see that next year in my beloved Commonwealth. With that, I appreciate your time and consideration and look forward to answering your questions.

Thank you. Next up we have Erich Pratt, who is the senior vice president for Gun Owners of America, where he has been employed since 1990. Mr. Pratt, you are recognized for your opening statement.

Thank you, Chairman Paul, Ranking Member, members of the committee, my name is Erich Pratt, I serve as senior vice president of Gun Owners of America and I represent more than two million Americans who believe the Second Amendment is the amendment that protects all the others. I appreciate the opportunity to discuss some of the threats to our Second Amendment rights and I want to begin with the gun owner registry that the ATF is compiling. In 2021, GOA exposed that the Biden administration had accumulated 54 million gun owner records in a single year. Now Representative Michael Cloud and 51 colleagues demanded answers from the ATF and what they received was shocking. The ATF admitted to amassing nearly one billion records of American gun owners with 94 percent already in digital format. This is gun owner registration, pure and simple. It's a violation of federal law and it's the reason the Senate should pass Senator Risch's bill S. 119. His bill would destroy this illegal searchable gun registry, hopefully by dropping the ATF computers containing this database into the deepest part of the ocean. Basically, ATF needs to have their own boating accident. Because look, a database like this invites abuse and we've already seen it happen. Biden's ATF tried to ban up to 40 million pistols with stabilizing braces and these were firearms that had been legal during the Obama administration, but by a stroke of the pen, Biden's ATF turned millions of Americans into felons overnight. Thankfully, GOA took this to court and we won protection for our members. But had this rule remained in place, the ATF would have known where every single one of those firearms were because of the 4473s forms on file and look, this is not a registry in name only, that is a confiscation list waiting to be used. And history tells us where this leads. The governments of Australia and Venezuela have carried out large scale gun confiscations in recent years. Canada is now threatening to use its registry to do door-to-door confiscations. But this is not just an other world problem, it's already happened here. In the 1960s, New York City began registering long guns with promises that they would never confiscate them. Yet by 1991, they banned many of those guns and in 1992, a New York paper reported that police raided the home of a Staten Island man who refused to comply, they seized his firearms and noted that spot checks were planned for other homes. That is the problem with maintaining records of gun owners' names. We're always just one step away from gun confiscation. Now turning to some other important federal issues, let me say this. The Trump administration has achieved many pro-gun victories in several departments outside of the DOJ and I champion those in my written testimony and talk about them. Sadly the Department of Justice has continued to fight us in court at almost every turn including on Biden's pistol brace ban, his engaged in the business rule, and the frame and receiver rule which registers every gun sold after 2002. The fact that a Republican DOJ is still defending Biden era gun rules in whole or in part should tell us everything. That is why Congress must repeal every federal infringement and finish the job by defunding, dismantling, and abolishing the ATF. After all, the Second Amendment is not about hunting, it's not about sport, it's ultimately about preserving freedom. But right now our rights are under attack by databases, by bureaucrats, and by government attorneys who too often would rather defend unconstitutional laws than the Constitution itself. And by the way, just a word for the wise for Republicans on the committee and in the rest of the Congress. These problems need to be fixed immediately if you hope to win the gun vote in the next in the midterms because gun owners as you know are very politically active and every time the DOJ attempts to moot our cases or continues to enforce a Biden era policy, gun owners become less excited to vote. Thank you and I look forward to answering your questions.

Thank you. Our next witness is Dudley Brown, who is the CEO of the National Association for Gun Rights where he has grown the group from a small grassroots organization into the nation's second largest gun rights group. Mr. Brown, you are recognized for your testimony.

Thank you, Mr. Chairman, Ranking Member, members of the committee. My name is Dudley Brown, I live in Northern Colorado, I am the president of the National Association for Gun Rights and it has been my privilege to represent gun owners for 33 years now. But a few months ago a man was shot and killed at a protest in Minnesota. Now I am not here to litigate Alex Pretti's actions, whether the shooting was legally justified or to endorse the politics of the protest he attended. I suspect he and I would have agreed on very little. My concern is what the current administration said afterward. In those 33 years representing gun owners in state legislatures and the federal government, what is the main tool I have relied on to preserve firearms freedoms? Easy, First Amendment. Today I find it prudent to speak on that intersection between the First and Second Amendments. And the reason is simple. We as a nation have never seen these rights as wholly separate. The First Amendment is how free people speak to power. Americans have shown since the founding they will tolerate being governed but not tolerate being ruled. That is the arrangement that makes this country different from every other on earth and is precisely why an attack on the right to bear arms at a lawful public assembly is not a Second Amendment problem alone. It is an attack on the entire architecture of American liberty. Now before I go further, let me disavow the notion that this is a bipartisan or this is a partisan issue. Regardless of the drastic changes of party control over the White House or the two legislative chambers, the one constant is that all those in power must be reminded that a civil right is in place to protect all the people regardless of their politics, their race, or their creed. I mean consider what was actually said by officials from the administration in the wake of that shooting. The President of the United States said, you can't have guns, you can't walk in with guns. The FBI Director remarked, you simply cannot bring a firearm to a protest. And the former Secretary of Homeland Security said, quotes, I don't know of any peaceful protester that shows up with a gun and ammunition rather than a sign. Now that last statement is most revealing. Former Secretary Nom was not citing law, she was declaring a world view that carrying a firearm is inherently incompatible with peaceful assembly. I think it is a world view the founders would not have recognized. Just before the Second Amendment was ratified, six of 13 colonies did not merely permit citizens to carry firearms to public assemblies. They actually required it. The generation that wrote the right of the people to peaceably to assemble looked at an armed citizen in a crowd and did not see a threat to the peace. They saw its guarantee. The argument being made implicitly is that you may have a Second Amendment right and a First Amendment right but not both at once. Choose one. If you choose wrong, don't be surprised if federal agents unceremoniously snatch one of those or both of those rights from you. Now several states today forbid the carry of firearms at public demonstrations. Those laws deserve scrutiny not only on a constitutional but also on a historical grounds. Their roots trace directly to Jim Crow laws. A law conceived to control a people does not become legitimate simply because time has passed and the target has changed. The states that enacted these laws were not concerned with public peace but with public control. Each party has the same capacity for authoritarianism as the other side when it serves the short term interest. So I will ask the members of this room directly, is this the precedent we intend to set? That officials can decide after the fact that a citizen had no right to carry because the administration disliked his politics? That is not a legal conclusion, that is a rationalization. There is no textual, historical, or traditional basis for the proposition that Americans must choose between their First and Second Amendment rights. You do not forfeit one by exercising the other. These rights are not in competition, they are the same right expressed twice. An armed people is a people whose assembly the government must take seriously. A disarmed people protest at the government's pleasure. The Second Amendment does not exist in isolation, it exists to ensure all the others remain meaningful. The founders understood that. The statements made by this administration suggest they do not understand it. The members of this committee have the standing, the authority, and the obligation to say so. I hope they will find the courage to use it. So on behalf of the millions of members of my organization who take this matter very seriously, let me thank you for your time.

Thank you. Senator Peters will introduce the next guest. Thank you. Senator Peters will introduce the next guest.

Thank you, Mr. Chairman. Our next witness is Professor Stephen Vladeck, the Agnes Williams Sesquicentennial Professor of Federal Courts at the Georgetown University Law Center. Professor Vladeck is a nationally renowned expert on the Supreme Court, federal courts, national security law, and military justice. He is also a highly recognized appellate advocate having argued before the Supreme Court, federal civilian courts, and military courts. Professor Vladeck is the recipient of numerous awards for his legal scholarship including the 2024 University of Texas President's Research Impact Award and a selection by the Order of Coif to serve as its distinguished visiting professor for 2025. Professor, thank you for taking the time to be here today.

Thank you very much, Ranking Member Peters, Chairman Paul, distinguished members of the committee. Thank you for the invitation to testify today. Of all of the conversations that we can and should be having about the U.S. Constitution, this committee's focus on the Second Amendment strikes me as singularly misplaced. Every day we see headlines documenting other unconstitutional behaviors by this administration, from arrogating Congress's appropriations power to claiming the authority to enter private homes without judicial warrants to suppressing and chilling the constitutionally protected speech of law firms, universities, and political critics to blowing up suspected drug boats, invading Venezuela, and going to war against Iran without even a scintilla of congressional authorization, which led one commentator to post on social media that, quote, it's a good thing Congress isn't alive to see this, unquote. Indeed all of this unconstitutional behavior is coming not in the face of a hostile Congress, but without any attempt to even obtain statutory authorization, even though the President's party also controls both legislative chambers including this committee. Instead of making the case for why Congress should loosen or repeal the various mandates that the executive branch is regularly violating or should authorize the unilateral conduct in which the executive branch is regularly engaging, this administration is effectively thumbing its nose at our elected representatives, that is at you. And in response this committee chose to hold this hearing. It seems to me, Mr. Chairman, that it would be far more useful for this committee to discuss the structural problems that have been highlighted by this administration's disdain for the Constitution and two in particular stand out. First, there's a large swath of unconstitutional behavior by the federal government that has proven to be effectively insulated from meaningful judicial review. On the individual right side, a combination of rulings by the Supreme Court and legislation from Congress has all but foreclosed damages suits by Americans whose constitutional rights have been violated. That lacuna comes at the particular expense of First and Fourth Amendment claims since unlike the Second Amendment claims about which we've heard so much already this morning, violations of those provisions are typically fleeting. And on the separation of powers side, the Supreme Court has likewise made it effectively impossible for litigants to challenge the President's arrogation of Congress's two most important powers: its power of the purse and its control of the war power. Second, the political constraints that have historically served to rein in systemic unconstitutional behavior by the executive branch have also completely broken down. Examples abound, but an especially revealing one is a statement by House Appropriations Committee Chairman Tom Cole, who suggested last year that it was perfectly fine for the President to ignore congressional appropriations because in his words, not mine, an appropriation, quote, "is not a law," unquote. In fact, the Constitution requires that appropriations be by law, entirely so that this branch and not the President will decide how the people's money will and won't be spent. Both of these problems could be fixed quickly and easily by a Congress that cared more about the separation of powers than the separation of parties. For instance, it would take a one-sentence statute to ensure that everyone whose constitutional rights are violated by the federal government can have their day in court. And beyond new legislation, Congress, including this committee, has numerous means to impose such accountability directly through its oversight function, its ability to exact concessions out of the executive branch in exchange for everything from appropriations to appointments, and if necessary, its impeachment power. Finally, to whatever extent members of this committee may tell themselves that they can just reclaim these abandoned powers the next time a Democrat is president, history and common sense are both to the contrary. The more time passes, the harder these powers will be to claw back. In the interim, the executive's lawlessness and Congress's abdication of responsibility have combined not just to produce an unprecedented breakdown in the separation of powers, but a growing and seemingly unending array of deleterious impacts on both everyday people and, at the risk of bringing some of this back to this committee's jurisdiction, the long-term security of our homeland. If we're going to talk about the Constitution, we should talk about why and how it is being so systematically violated by the current administration, why and how Congress is sitting idly by while that happens, why and how that attitude is destructive of our nation's most fundamental ideals, and why and how a Congress that actually took its constitutional responsibility seriously should and would respond. As for the nominal topic of today's hearing, it seems to me that at this moment in our history, devoting resources to the Second Amendment is burying all of our heads in the sand. Even if we can't agree on much, I hope we can all at least agree that it shouldn't be the case that the only way to hold the federal government accountable is to elect a new one. Thank you for inviting me to testify today, and I look forward to your questions.

Thank you. We will now proceed to a round of questions, and I'll start things off. You know, I've been to, I don't know, thousands of rallies. I've probably been the speaker at thousands of rallies. I've attended hundreds and hundreds of rallies. And every rally I go to, someone is armed. The people that are with me are armed. You know, my driver is armed. And we do it for self-defense. And I was also at the ball field when 160 shots were fired at me and others. So I know what violence is like, and I know how important it is to have people there. We had Capitol Hill police there that day, and they and the Alexandria police saved many lives, you know. Steve Scalise almost died. Another young man was shot under the arm. Bullet traveled around his rib cage, came out the front of his chest and didn't get inside his rib cage, and he survived. But you know, I think that if we pass laws like we're talking about in Virginia, where maybe it's okay for me to get protection but not for you because you're a private citizen, I just can't imagine, you know, the hypocrisy of something like that. We have very prominent people in our society, some of the richest people in our society, who all the time lobby for gun control and they want less guns out there, and yet they all have a phalanx of eight to 10 people with them, all armed, because they can afford that, and most of us can't. So I was wondering, Mr. Cuccinelli, if you'd comment on the law and the distinctions that they're talking about between that the government could have security but a private CEO or a private person or even a bail bondsman, not a rich person, but somebody who does a risky business of repossessing cars, that somehow it would be illegal for them to have a gun. I can't imagine, you know, a government official, yes, and then the bail bondsman or the repossessor of cars, no.

Well, I'll take the kind of highest profile law they're passing, the so-called assault weapons ban, exempts government officials and employees, thereby acknowledging the utility of the guns in question, which gets to the Supreme Court's judge of historical utility of a particular weapon. The law itself acknowledges that and yet denies it to ordinary citizens, but allows their own employees to carry. Then to your two examples closer along the lines of what you described, there have been several amendments. The governor, the way Virginia's process works, General Assembly is now out of session. The governor can propose amendments back to the General Assembly, and Governor Spanberger has done that this week. And the General Assembly will be back next week to either accept or reject those amendments and then vote on the original bill if they reject the amendments. Several of those bills restrict exactly the kind of carrying rights and location that you're describing. In Heller, Justice Scalia spoke about sensitive places and allowed room for regulation, meaning the banning of guns in, for instance, school buildings was an example that he used. And but what the Virginia General Assembly is now proposing goes far beyond that. So if you are a person whose business or whose safety involves being armed or you would choose to protect yourself that way, you are now going in Virginia to be restricted, depending on how litigation ends up. I'm sure all this will be litigated. I hope to participate in that. But those restrictions are now very real. Again, to my opening comment about the practical ability to utilize and exercise your right to self-protection. As we all know here, this isn't granted by government. James Madison didn't give us this right. The Bill of Rights was put in place to preserve what were understood to be already existing rights in the case of self-defense, both of self and society. So unfortunately, that's the direction that the current government in my home state is trying to go. I hope that we will be able to reintroduce them to the concepts of George Mason and Patrick Henry and James Madison. I know they've driven by their houses while they've been driving around Virginia since we have that history there. Nonetheless, it's being ignored and now abused, and it's going to unfortunately have to be fought out in the courts to protect it.

Senator Peters.

Thank you, Mr. Chairman. You know, the Constitution guarantees each of us certain liberties, including the freedom to speak our mind, the practice our religion, receive due process, and the right to bear arms, as we've been talking about here today. Our framers knew that the freedoms protected under our Constitution, however, would be at risk if any one branch of government was allowed to go unchecked. They didn't trust anybody in government, figured you had to make sure there were checks and balances. Ronald Reagan, I think, explained the importance of this system of checks and balances very well, and I'll just quote Ronald Reagan: "The genius of our constitutional system is its recognition that no one branch of government alone could be relied on to preserve our freedoms. The great safeguard of our liberty is the totality of the constitutional system, with no one part getting the upper hand." Professor Vladeck, as you noted in your testimony, President Trump has gone to war with Iran without congressional approval as required in the Constitution, usurped Congress's appropriations powers under Article I, powers are being usurped, and turned federal agencies against American citizens, all while unfortunately most of my Republican colleagues have either cheered him on or they just kind of look the other way. So my question for you, sir, is, is Congress currently functioning as a co-equal branch of government as outlined in the Constitution? And if not, what is the danger that we're facing right now? What should the American people be concerned about?

I mean, the short answer, of course, is no. And I think the danger is both a short-term danger, Senator, and a long-term danger. And just briefly, the short-term danger is that without Congress, without the president having to look over his shoulder, there is nothing to stop him from engaging in ever more aggressive usurpation of appropriations, spending money he doesn't have, not spending money he's supposed to, violating individual rights in contexts in which there's no way to challenge that in court, and going on ever more misguided, misbegotten military operations, all to the detriment of our national security, of our economy, of our rights. Senator, in the long term, this destabilizes the ability of Congress to ever exercise those powers again. We have a Supreme Court that has interpreted the separation of powers by reference to what Justice Frankfurter called historical gloss. If the gloss of the 2020s is that the president can do whatever he wants as long as a majority of Congress isn't going to stop him, that is a gloss that can be deployed by future presidents, Senator, with whom you and I might agree more, to do plenty of things that I think would be deeply problematic for our rule of law society.

Well, you mentioned the courts as a possible check. Obviously, Congress is a major check, and I would argue that our founders always saw Congress was the preeminent of the three branches, we are Article I. But the courts are important, and unfortunately we've seen this administration, based on recent actions, believes that they are above the law, including court decisions. Time and time again, judges have found that the administration has violated court orders. One federal judge found that the Department of Homeland Security had, quote, "utterly disregarded" the court's earlier order and made, quote, "no attempt to offer any justification for their blatant lack of effort to comply," thumbing their nose at the court. Another found that ICE failed or refused to provide information ordered by the court. Another case found that DOJ, quote, "elected to simply ignore valid court orders." You know, and I want to be clear, these are not liberal activist judges, as President Trump and some of my colleagues would claim. All of these quotes come from judges that were appointed by Donald Trump. These are judges he appointed who saw how outrageous it was for them to ignore these orders. So what does it mean for Americans if there is not a consistent adherence to the rule of law and some laws just simply don't get followed?

Yeah, I mean, you know, John Adams at the founding said ours is a government of laws, not of men. A world in which the executive branch doesn't abide by court orders and faces no repercussions in Congress for violating court orders is a world in which that's not true. And it's a world in which the president can do what he wants. And Senator, we may not care, too many people may not care about those cases because those are immigration detention cases. But if the government puts one of us in immigration detention and says you're not a U.S. citizen, even if it's a mistake, the only way to get out is a government that's going to comply with an adverse court order. That's the problem, that's the slippery slope, and it is very slippery, and it's one that we're falling down way too quickly.

Right. Thank you. The Fourth Amendment protects us from unjustified invasions of privacy by the government. However, this administration has basically discarded decades-old privacy protections to combine and share Americans' most sensitive tax, health, and Social Security data. It's tracking Americans' location using data brokers, it's monitoring their social media activity, and potentially even using spyware to break into the phones of Americans. Very concerned about these activities. So my question for you, sir, or Professor Vladeck, is at the time when so many people choose to share all kinds of details online, why should we be concerned about information the government is collecting right now and how might they use these tools against us?

I mean, I think that the concern, Senator, has been driven home by what we've seen this administration do, which is retaliating against people because of, for example, what's in their social media profiles, denying visas to non-citizens who have done nothing wrong other than perhaps express sympathy for Palestinians. That is not supposed to be how the government uses our data. And there is a rich tradition, Senator, as you well know, of this Congress actually stepping in to protect Americans' privacy rights even before the courts have had a chance to do so. The Wiretap Act was a response to the Supreme Court's refusal to apply the Fourth Amendment to wiretaps. That's the kinds of conversations we should be having about what's happening in our government right now, not the possibility that some state laws might be subject to challenge in court where those challenges are deeply available.

Thank you.

Senator Johnson.

Thank you, Mr. Chairman. I appreciate you calling this hearing. It's, I think, a very interesting one, I think it's an important debate. I always like hearings that kind of stay focused on the actual title of the hearing, which was the Second Amendment. You can go into other areas, that's fine. But, you know, Mr. Pratt, you seemed to not be particularly happy with this administration's reaction to some of these things, you know, same with Mr. Brown. I'm not disagreeing with you at all. Mr. Pratt, you said that Congress has to act. You know, the problem is we have, you know, those of us who support the Second Amendment, the opposition party basically wants to disarm Americans. I mean, they say they won't, but that's the direction, I think it's pretty obvious in terms of all these gun laws and stuff. So I guess I would just ask for the record, I would like you to list the things that the executive branch can do to undo some of the harm, some of the violations of, I would say, our constitutional right to keep and bear arms, and particularly that confiscation list, which I think is pretty much what it's going to be. I mean, why can't they just deep-six that? I mean, is that something this administration could do and should we be putting a lot of pressure on President Trump and members of his administration to do just that?

Well, thank you for the question, Senator Johnson. Gun Owners of America has been working with the administration to do just that with the registry. They are coming out with a new rule because under Biden, they made those records permanent.

So go through the Administrative Procedure Act and that'll happen.

I'm sorry?

They'll go through the Administrative Procedure Act and you believe that'll happen.

Yes. And so we are urging them, a shall not be infringed view would mean the ATF retains those 4473s for zero years, not 10, not 20, 30, or indefinitely, but zero.

Limited time. Mr. Cuccinelli, I think you're a pretty observant follower of the Supreme Court. A lot of President Trump's actions have been challenged in court, correct?

Yeah.

And the minority witness pointed those out. But President Trump has actually got a pretty good record before the Supreme Court, correct? Have you been keeping track of that?

He does have a pretty good record before the Supreme Court. He has a better record before the Supreme Court than many of the lower courts when you look at injunctions, for example, over 90 percent of them came in five districts. That's probably not a coincidence.

So there's been a little venue shopping in terms of some of these challenges.

There has been significant venue shopping. Yes.

Professor Vladeck, I assume that you are not a Trump supporter. I mean, doesn't sound like you're particularly enamored with this administration.

I'm not enamored of any administration, Senator, that doesn't commit to following the Constitution.

Right. You talked a lot about war powers. Has any president since the War Powers Act been passed accepted that as a constitutional constraint on that president?

I mean, I think we've seen presidents follow it, including President Carter.

But again, you're not answering the question. Has any president acknowledged, admitted that this is a constitutional act?

I think we've seen presidents follow it, including President Carter.

But again, you're not answering the question. Has any president acknowledged this is constitutional? Has any Supreme Court ruled on the constitutionality of the War Powers Act?

Well, no, because as I suggested in my testimony, the Supreme Court has made it hard to challenge.

What did, did President Obama ever get a congressional authorization in his military action against Libya?

No, he did not.

Okay. Did President Clinton ever get congressional authorization in his military action in Kosovo and Yugoslavia?

So I think that one's, that one's a tougher question because it depends upon how you interpret the NATO treaty and some of the authorities under that, but...

He did not get authorization. Congress did not declare war. Congress did not pass authorization.

I agree. And Senator, I've been critical, I've been critical of abuses of the war powers by presidents of both parties.

So again, you've got, you've got blinders, you've got blinders on.

No, I think presidents...

You have blinders on. Now let me ask another question. I thought it was very interesting in Representative Massie's testimony, the regime after regime after regime that he ticked off that the first action these totalitarians, these tyrants enacted was gun control. Okay. I thought it was interesting because I thought he was leading right up to, but he didn't mention, the Ayatollahs. You know, Professor Vladeck, you're part of, you know, academia who I just think, I'm not sure about Georgetown Law, but, you know, it was shocking how many protests in favor of Hamas occurred on college campuses. That's because we have leftist professors poisoning the minds of our young people. But I hope our young people are watching. I'm assuming you don't support the Ayatollahs in Iran, do you? Do you think they're anything less than a brutal, tyrannical threat and menace to world peace?

No, but I also don't think that's the standard for when presidents have the constitutional authority to send American citizens into harm's way.

I'm, I'm, I'm, I'm... Do you think it would be a good thing if the Ayatollahs were on the dustbin of history, that they no longer represented a threat and a menace to world peace? Do you think that'd be a good thing?

I mean, what I think and what this committee is asking me for...

You can't even answer that question?

Senator, I don't know why what I think is relevant. Yes, I do. But I also think that this committee should be more interested in what the Constitution provides for.

The point, the point I want to make is the point I want to make is they were a menace, they are an existential threat. I mean, they get a nuclear weapon, they've got missile technology, park a barge off the US, lob a missile up, hit off, you know, explode a nuclear weapon, wipe out our electrical grid. That's an existential threat. We had to act before we couldn't act. But the hope was in acting, the hope is still there, that if we weaken the regime, the Iranian people can take control, regain their freedom. Why can't they? Because they've been disarmed. Getting right back to the purpose of this hearing. Because the Iranian people have been disarmed by the brutal tyrannical regime within Iran. When are we going to finally learn that lesson? Thank you, Mr. Chairman.

Thank you. We'll do another round if anybody has any other questions and I'll start us off on that. I opened by talking about that I've been to a lot of rallies with guns. I've never seen anybody commit violence, and that's not why I support the right to have a gun at a rally. The right is separate of whether the practicalities are supportive of it. It's something that proceeds government, it's a natural right, the right of self-defense. But I would be interested, Mr. Brown, if you know of any statistics looking at legal gun owners and whether they commit crimes, how frequently compared to, you know, the criminal population, etc.

Yeah, thank you, Senator. The estimates are right now that there are somewhere around 22 million concealed handgun permits issued to Americans. There's, there are, however, now as you mentioned, 29 states that allow permitless carry. And so the estimates are roughly that 16 million people carry on a regular basis in America and that they commit crimes at one-third the rate of other Americans, people who don't carry. And of course, those are broad general estimates, but we know in states with permits that those people are arrested at a much lower rate, not just for gun crimes like, for instance, carrying in a quote, "illegal place" or a sitting duck zone, as Congressman Massie called them, but they're also on a regular basis not arrested for other means like assault. And I think we can surmise the reason. I know for me, I carry virtually every waking moment that I can, and it's because there's an added level of seriousness when you do carry a firearm and responsibility. And so, yeah, I think you just avoid problems wherever you can.

Same question, Mr. Pratt.

Yeah, the statistics show that concealed carry permit holders, for example, commit crimes at a lower rate than the police do. And interestingly enough, you have more private citizens who stop, over 50 percent of mass shootings in non-gun-free zones are stopped by law-abiding citizens. That's actually a greater percentage than police. And that's because if you're in danger and you're in a gun-free zone, the police are minutes away, but if you are able to protect yourself, you're able to immediately respond.

Yeah, and I think that's the thing about people who don't own guns and fear the sight of a gun and the gun scares them, is that people who own and carry guns are some of the most responsible people as far as safety, as far as everything else, and they don't brandish their weapon, they're carrying a weapon for self-defense and that it does work. On the idea of separation of powers, some of the discussion is the implication that this is a one-sided thing, that somehow this is Republicans are terrible, Trump is terrible, but maybe Democrats were somehow good. I would say both parties have been abysmal at this and frankly the court hasn't been very good either. And so one of your colleagues, Randy Barnett, you know, goes back to Lochner and I'm with him on that. I'm a libertarian that thinks Lochner was correctly decided, but it's been opposed by most on the left and many on the right, frankly, for the last 100 years. The problem is, as you see in Lochner, the court did decide that they were going to make assertive decisions based on constitutionality. They basically decided in Lochner that the right to contract is a right and that states can't infringe upon the right to contract. And that was a great direction which has been reversed by 100 years, but for 100 years now or more, the court really has shown deference. I won't mention the justice, but I recently met one in a casual situation and, you know, the discussion was concerning, you know, no longer giving deference to the administration, overturning Chevron, which I'm in favor of. But the question I had to the justice was, well, you seem pretty deferential, why wasn't there discussion of the First Amendment in the TikTok case or why was it sloughed over for national security? And the point that was made by the justice was that, oh, well, we still give deference to Congress. And when we've had questions of separation of powers, for example, some pretty explicit things, taxes have to originate in the House. TEFRA was a bill back in 1986, Congressmen took it there and the court basically will do stuff like, oh, you don't have standing, and so they never really decided it on it. Recently we had a really big case on tariffs. I agree with the court's decision on the tariffs, but they also made the decision of, I think based on Ashwander, that, oh, we're not going to really decide on the Constitution. Heaven forbid we make a constitutional decision, we're going to decide it on the statute. And so I think really there's some blame over there and there's certainly a lot of blame in Congress, but really the blame is absolutely bipartisan and people seem to switch their positions. People who were once or now very critical of the war power under President Trump, which I have been, many of them were very quiet when President Obama was bombing Libya or that was the point I think Senator Johnson was making, is that, you know, the consistency on this position has been very, very partisan. And I'll just finish with, I guess let's start out with the court, with Lochner, decided correctly, is that part of the problem, not decided correctly, and then with Ashwander, should Ashwander be binding us and keeping us for the court from making constitutional judgment on what they call political questions?

So, I mean, Mr. Chairman, I agree with I think a lot more of what you said than you might expect. I have been a consistent critic of abuse of the war powers by presidents of both parties and would have loved the chance to actually explain that to Senator Johnson. I think the point though that you're making, Mr. Chairman, is that the deference the court is showing assumes a Congress that is exercising its ordinary oversight and accountability powers. And I'm not here to blame one party or the other, Mr. Chairman. My point is just that at this particular moment in American history, we are seeing in technicolor just how significant the costs of that abdication, whenever it started and whoever's to blame, are for the rights of all Americans.

So here's my question. I think you're right, Congress is abdicating their duty. What about the court then? Congress isn't doing their duty, does the court have a duty and they try to, they skate political questions and they try to decide things on non-constitutional, which gets back to Lochner. In Lochner they had a more certain idea that if a state is acting unconstitutionally, if they are abridging the right to contract, we will overturn the state law. And then they got away from that. And so really it is the question of Lochner being correctly decided or not correctly decided, and if the court, you want them to act in separation of powers issues like this, then is Ashwander, should it be binding as far as trying to go to the least common denominator instead of deciding based on the Constitution?

I mean, Mr. Chairman, I think the Ashwander question is a is a nuanced one and really depends on exactly what Congress has done and said. And so, you know, a statute, Mr. Chairman, that was ambiguous, you and I might both think better to avoid the question. But where I think Congress has clearly tried to rein in the president and has clearly tried to push back, the court should be deciding the question. And if I may just very briefly, I think we're seeing some of the same problem in that direction that we're talking about with regard to the relationship between Congress and the executive branch, which is Congress also used to be much more active in regulating the courts and the Supreme Court in particular. And I think over the last generation we've seen that fall away as well.

Senator Hawley first and then you or do you want to do yours? He just got here. I'll do you then go to Hawley. Senator Peters.

Thank you, Mr. Chairman. I agree, the chairman and I agree. I mean, this has been an issue with both parties over time. In my opening comments, I was very clear that we have seen Congress give powers to the executive on a continuous basis. I think we could argue whether or not it's accelerating or not, which was part of your point, Professor. But to that point with war powers, I know that Mr. Chairman and I would actually like to hear your answer to the question our colleague asked about war powers. We're actually interested in learning about that, not just to give a speech.

Yeah, I mean, I think the point I was trying to make to Senator Johnson is that I think presidents of both parties have abused the war powers. And I don't think it's a particularly Democratic or Republican or conservative or liberal phenomenon. Presidents are going to use the powers they have, Senator. And so I think part of the problem is that we have seen perhaps more aggressive pushback when the president was a Democrat, perhaps because those were periods when you had some cross-party control. And so, you know, we have seen more aggressive pushback when a different party has controlled one or both chambers of Congress than when it's been the same party. And that's been true in both directions. It seems to me the result should not be to say, you know, so-and-so is a hypocrite, but rather to say, well, then let's fix the problem period as opposed to let's fix the problem when someone else is in charge.

Yeah, I think that's right. And the checks and balances works sometimes when you don't have one control, one party in all control based on the partisanship that we're seeing in the country right now, unfortunately. Professor, you also state in your testimony that the Trump administration has taken sweeping actions to undermine the First Amendment. The chair of the Federal Communications Commission threatened ABC for airing a comedian who criticized the administration. This administration has also revoked the press credentials of journalists whose coverage it basically didn't like. It targeted law firms, universities, and former government officials because it didn't like their protected speech and is trying to use federal grants now to force organizations to adopt the president's political ideology with federal money. Could you talk about Congress's role in addressing the scale of the Trump administration's systemic violations, particularly of the First Amendment right now?

Yeah, I mean, it seems like there are a couple of different things that Congress could do and that prior Congresses have done. I mean, I think the first is more robust oversight, using, for example, nominations hearings, using oversight hearings, using budget hearings as opportunities to ask the administration what exactly it's doing and why. I think there are ways in which Congress could condition funding for some of these agencies on not engaging in those behaviors. It is not unconstitutional for Congress to condition federal funds on the administration refusing to retaliate. But also, Senator, I think Congress could make it easier for those who are having their speech chilled in these contexts to sue directly because I don't think it's possible even for a well-meaning Congress to actually enforce every single flashpoint between the government and its citizens. That's why I think the absence of a meaningful remedy even for ephemeral constitutional violations is something that has been exposed over and over again as a structural flaw of our current moment.

Professor, you also noted in your testimony the Constitution grants Congress, not the president, the power to decide how the government spends taxpayer money. This power of the purse allows us to basically serve as a check on abuses by the by the executive branch. After two American citizens were shot and killed by DHS officers as a result of the administration's tactics, many of us tried to use the Congress's spending power to ensure reform as well as accountability. But when the president decides to ignore Congress and claims the spending power for himself, not Congress, it leaves Congress basically with no leverage and the American people with basically no accountability. So my question for you, sir, is are you aware of other instances in history where the president has violated Congress's power to appropriate funds and Congress basically did absolutely nothing? And what are the consequences when the administration ignores Congress's appropriations power as granted in Article 1 of the Constitution?

Senator, I'm not aware of another example where we saw this degree of appropriations misbehavior by the executive branch and no congressional reaction. I think as you know, the Impoundment Control Act itself was Congress's response to not comparable, but at least loosely analogous behavior by the Nixon administration. And Congress responded by I think quite powerfully reclaiming its power and indeed authorizing, Senator, some of the behavior President Nixon had engaged in while prohibiting the rest of it. And it seems to me that that is the point I would have liked to have made to Senator Johnson, which is you can think the president having this power is a good thing or not. The point is that Congress has to provide it. And so it seems like what is missing from this conversation is the idea that if we like what the president is doing, we shouldn't worry about the separation of powers. Just to quote the Supreme Court for a second, it would be ironic if in the name of national defense, we would sanction the subversion of one of our civil liberties that makes defense of the nation worthwhile.

Thank you.

Senator Hawley.

Thank you very much, Mr. Chairman. Thanks to all of the witnesses for being here. Mr. Pratt, if I could just start with you. I want to ask you about something that I think deserves some answers. In fact, I've waited years for a substantive response on this. Back in 2021, I sent a letter to then President Biden's ATF asking about Rule 2021R-05, which is the rule that requires gun dealers to keep records on buyers permanently. They never gave me an answer. Thankfully, we now have a new administration, but it's often the case that old rules live on in a sort of zombie-like lifestyle through bureaucratic inertia. How many do you know, Mr. Pratt, how many Biden-era ATF rules are still either on the books or continue to be enforced that we ought to be concerned about?

Thank you for the question. Unfortunately, there's several. With the one you just mentioned, the DOJ even as of late as of last week was saying they intend to enforce the Biden rule. The same with the engaged in the business rule, same with the pistol brace rule. We're fighting every single one of those. And, you know, I'm so glad you took an interest in the registry because GOA actually FOIAed the ATF manual. And you can search the make, model, and serial number of, let's say, every firearm made by Smith & Wesson. And so you could then use that as a confiscation list to know which ones were the pistols with stabilizing braces. And when ATF Director Steven Dettelbach testified before the Congress, he told the Senate Judiciary Committee that they actually pay extra money to remove the search function on the names. And that was supposed to be our big defense against a confiscation list, our big defense against tyranny. They're paying extra money. What if they stop paying the extra money? Or what if they open up that Adobe document in some other type of document? They would still be able to search by name. So the only answer that we really have is to delete the registry.

Speaking of registries, my understanding is that sitting right now in a warehouse in West Virginia, and you described this in your testimony, is roughly one billion gun owner records, 94 percent of them that are already in digital format. Now, federal law is supposed to prohibit a national gun registry, but I'm wondering, what would you call that?

We call that a registry.

Looks like it to me too. I mean, let's just walk through this. If a future administration that's hostile to Second Amendment rights in this country were to get its hands on those records, billion gun owners' names, other information contained there, what do you think it might be able to do with them?

Well, that's absolutely the problem is with any gun ban that's passed, they're able to search the makes and models of those guns. And if they stop paying for the names attached to them, they know exactly who's not in compliance with the law, which again is something that already happened in New York City when they registered guns in the '60s, passed a ban in the '90s, and then they did spot checks on people that they believed were not complying with the law.

In 1967, correct? New York required registration of rifles, I think it was, and shotguns as well and promised then that oh it wouldn't be used for confiscation, but then in fact they were confiscated. I think they went door-to-door back in the late '60s.

Mayor David Dinkins signed the ban and that's exactly what they did.

Then in 1991, New York City also banned another class of weapons and officials used, as I understand it, an existing database to do the same thing, to force confiscation. There's also I suppose the example of of our Australian friends. In 1996, I think it was, Australia passed the National Firearms Agreement they called it, which as I understand it restricted gun ownership and mandated the creation of a firearm registry and then lo and behold, they went and used that to enforce mandatory buybacks. I seem to recall more than one Democratic candidate for president talking about mandatory buybacks. I mean, this is not a far-fetched conspiracy theory. This is something that's happened in our country, it's happened in our in our allies' nations, and you've got members of the opposition party who are saying it's a great model. I mean, we should be concerned about this, shouldn't we?

We should be concerned about it and that's why that registry cannot continue to exist, Senator.

What is what is the thing that we've got to do? What's the most urgent action we need to take, Mr. Pratt, to make sure this registry A isn't abused and B is is eliminated so that it cannot be used for nefarious purposes, namely the violation of constitutional rights in the future?

Well, the No Registry Rights Act by Cloud in the House and Risch in the Senate would delete that registry. So if Congress would take that up and send it to the president, that would be fantastic.

I hope we'll do that posthaste. Thank you very much for your testimony. Thank you, Mr. Chairman.

I think this is a good discussion and furthering on this, I would just like to add that, you know, we've been requesting information also from the ATF for quite a while. We sent a letter in April of last year requesting some of the same information that you FOIAed and we've gotten no response and no documents and we've followed up. So we are going to pursue through the committee the process of subpoenaing that information. It'll be in consultation with minority, but if you have an interest in that, if you'll work with our office, if there's specific information you want to add to that subpoena. It's a friendly administration, but the ATF still isn't giving us anything in a year and so that's just too long and we we should figure out more about it. In our letter, we refer to some of the FOIAed things and apparently there is evidence now that ATF agents can have their own target that they can monitor for 30 to 180 days and monitor along with the FBI through this with it sounds like sort of no due process or courts or anybody involved with this. And the fact that they won't tell Congress what they're doing, I think our patience should wear thin. I think we should really find out what's going over there because sometimes even when an administration changes, people at the top change, but somebody who's in charge of this program may be the exact same people that were doing it in the previous administration. But we're going to try to to get to the bottom of that. I don't have any further questions. We have gone a couple rounds. Do you have anything else you'd like to say? I think we're going to wrap it up.

Mr. Chairman?

Yes.

Can I just comment on that briefly? And Senator Peters earlier, he didn't use the phrase third-party doctrine, but he described examples of what is what is the third-party doctrine. The third-party doctrine was established by the Supreme Court in the '70s in a bank case and a phone case back when we made a phone call and wires actually connected to connect you to me. You could put a trap on it and you could see everybody I dialed. And the theory of the third-party doctrine is that if I dial my phone, I know that I'm giving the phone company that information and therefore giving up all constitutional rights to privacy.

A terrible theory.

Regardless of whether I have a contract with that phone company to keep those records private on the old old pre-privacy theory of Fourth Amendment rights, which was based on oh the Constitution and trespass theory, etc. Contract would fit in there. Same with my bank records. When I use a bank and we all do, they fall under the same rules. So you just commented, Mr. Chairman, about no warrants, no judicial, no due process. That's exactly right because all of our government agencies can just go ask the bank for your records. Now then it's up to the bank whether they turn them over or even let you know about it.

But this is a huge issue and then the court helped a little bit to abbreviate the expanse of the third-party doctrine in the Carpenter decision. And I actually think and several senators were caught up in this recently in Carpenter, I believe it's either Carpenter or the other case before that, they make the decision that your geolocation is actually amongst all the data that the court doesn't care about and they say you have no privacy interest to no personal interest in, you do have it in your location.

That was Jones, Mr. Chairman.

Excuse me?

The Jones case, Mr. Chairman.

Jones case. So there's two different and they're kind of but it was the Jones case. But I think I really think absolutely and I don't know if any of the senators you weren't on that list, were you? You were on the list. But I think it needs to be pursued based on that case because they did look at geolocation. They're looking at where you were on January 6th and of course the phone companies did not defend any one phone company defended one senator and the other one didn't defend anybody. But I think you have a real case on this. The question is whether or not this is a violation of the government or whether the phone companies have an obligation to protect geolocation. Can you sue both you could sue the phone companies, but can you sue the government over it too? On this, the question is whether or not this is a violation of the government or whether the phone companies have an obligation to protect your location. Can you sue both? You could sue the phone companies, but can you sue the government over it too, Mr. Cuccinelli?

Well you're going to run into sovereign immunity and with the third-party doctrine established by the Supreme Court, you will not be able to successfully sue the government absent trying to go all the way to the Supreme Court and getting the third-party doctrine overturned.

But even though they've protected, but even though they've allowed now that geolocation is it does not is not protected by the third-party doctrine.

Well there was I mean Mr. Chairman, there was there was the bill that Congress passed last year that I believe-

Senator Hawley can correct me, but I believe authorized at least some members, perhaps senators, to sue over at least some of the phone records questions. But I do think the larger point, Mr. Chairman, is that whether whether we are particularly concerned with the phone records of senators or Americans who don't hold elected office, the problem is the same, which is that there are woefully insufficient remedies for any government violation of our Fourth Amendment rights.

I agree oh I agree completely. I think Smith and the other decisions were all incorrectly decided and it took 60 years to go from Olmstead and saying you can wiretap anybody's phone all the way to Katz. And so you had a long period of time till the court finally started getting it right, but they still aren't completely getting it right and Carpenter and Jones are a step in the right direction. But I actually think Jones is on point here and I do think that you can win a case. So my suggestion is that you get a oh you are a lawyer. You should I I think that I don't know, I think there still is an opening that third-party doctrine doesn't because of geolocation they say is something that is not just data anymore, you have a personal interest in geolocation.

They they ratcheted or created exceptions is how I would characterize it to the third-party doctrine with respect to that level of nuance, which of course they didn't foresee in the 1970s. But the 1970s technology wasn't foreseen by the founders. I would suggest that it would be better and it doesn't strike me as particularly difficult to get bipartisan support to to introduce this kind of protection, particularly given what's happened around here recently.

Yeah we have that legislation and I will introduce it again. Thank you. Mr. Vladeck, did you have another comment on this? Thanks everybody. I think we actually covered more than just the Second Amendment. We did the Second Amendment, we got some of the Fourth Amendment, we talked about First Amendment, the separation of powers. I think it was a good hearing. Thanks everybody.

Thank you, Mr. Chairman.