Joseph Woodrow Hatchett United States Courthouse and Federal Building--

Floor Speech

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Mr. LEE. Mr. President, I rise to speak in opposition to the bill before us.

All too often, we very often applaud instinctively the concept of ``bipartisanship'' but fail to actually evaluate the policies underlying bipartisan legislation and the effect that our policies may have on law-abiding Americans.

Bipartisanship is a good thing. In fact, bipartisanship is an inevitability in any legislative body that contains multiple parties with significant representation. It certainly is an indispensable feature of this legislative body, as it is virtually impossible to pass any legislation--with only the rarest of exceptions arising at most once or twice in a year--except through bipartisanship.

The question isn't whether to achieve bipartisanship or whether it is good but what policies are produced through the bipartisanship in question.

Don't get me wrong--in this polarized climate, it is good when people of different political affiliations and different backgrounds, representing different parts of our great country, are able to come together and have productive conversations. These conversations occur with some regularity. In fact, they occur far more often than most people would assume based on depictions in the news and entertainment media in this country.

It is also good when those conversations lead to legislation that is further refined on the Senate floor through robust debate and an amendment process, one that refines the legislation in question to make sure that all viewpoints have been taken into account. But that is, tragically, not what happened with this legislation. No one--no one except a small ``gang'' of Senators and a few favored members of the news media--no one was allowed to view the legislation until Tuesday evening. Less than an hour later, less than an hour after it had been released to the public, released to us, the Senate was forced to vote on whether we should proceed to the legislation in question.

Immediately after that vote, the majority leader filled the amendment tree and filed the cloture motion to end debate on the bill without a single hearing held or a single amendment having been debated or considered or even offered. In fact, it couldn't be offered because prior to that time, there was nothing to amend.

Now, less than 48 hours after we received the text of this legislation for the very first time, the Senate has voted to end debate--a debate that never really started; a debate that involved not a single amendment passed--no, not one single one; a debate in which there was not a single opportunity for Members to offer improvements to the legislation. No. This small gang came together, materialized, and put together a bill. It released the bill, and all of a sudden, we were expected to vote on it up or down, yes or no, no changes, no questions asked.

Those of us who are not members of this particular gang were told, essentially: Too bad. We don't want your input. Your only option is to support this entire bill, warts and all, ambiguities and all, vagueness and all, without any changes; or, on the other hand, you can oppose it, and you would be accused of savagely not wanting to protect children from school shootings.

That is not what our Founding Fathers envisioned for the U.S. Senate. It is not how they imagined it working. It is also not how it worked for hundreds of years.

For more than two centuries, the U.S. Senate functioned in a way that has had as its distinguishing characteristic those procedures that earned it the title of being the world's greatest deliberative body. Chief among those features was the willingness and the ability of each Member to offer up improvements in the form of amendments and have those amendments considered, debated, discussed, and ultimately voted upon.

But, unfortunately, this is how the Senate has been run over the last few Congresses. Sadly, we have seen some of this under Democratic and Republican leadership alike. This isn't just bad news for the Senate; it is especially bad news for the American people, who deserve better from an entity that still calls itself the world's greatest deliberative body.

It is not without notice that this has become a problem. It is not without notice that we have deviated from this. The thing is, when we deviate from our own procedure and our own processes, the substance shows. The inadequacies of the substance are the natural, foreseeable result. They are the inevitable product of a defiant refusal to abide by our most time-honored procedures: rules and customs.

In this case, the substantive problems with this bill are pretty significant. The restrictions that it imposes on the Second Amendment rights of law-abiding Americans are significant, and those impositions come about in such a way that burdens the American people, while doing little or nothing to address actual gun violence committed by prohibited persons in many of our largest cities.

You would think that a bill that purports to be able to keep kids safe in schools would at least have some funding for school security measures or school resource officers, but if you felt that, you would be wrong.

I am very skeptical of Federal intervention in education. If Congress is going to provide billions of dollars of mental health funding to schools and claim to keep kids safe, we should at least allow States to use some of their funding for security measures, like reinforced doors, school resource officers, or training programs for teachers who are allowed to conceal and carry if they choose.

This bill provides Federal grant funding for State red flag laws without sufficient due process protections. This is a trick--a trick-- often used by Congress, increasingly so of late. Congress does this sometimes when it has no constitutional authority and sometimes when it lacks political will.

Instead of passing the Federal law at issue--the Federal law that it wishes it could pass--Congress bribes the States with money to pass the laws that Congress wants, that Congress wishes Congress could pass but for whatever reason can't or won't. This allows Members of Congress to go to their home States and take credit for doing ``something,'' even if that ``something'' does nothing to address the problem.

That impulse to do something has been noticed. It has been noticed by Professor Robert Leider of George Mason University and the Antonin Scalia Law School. He penned an op-ed in today's copy of the Wall Street Journal. In that op-ed, he begins with the following words:

When mass shootings such as Uvalde happen, a rallying cry emerges for Congress to do something--anything--to prevent such tragedies in the future. On Tuesday, senators introduced the Bipartisan Safer Communities Act--their effort to do something. But when your sole rallying cry is to do something, the thing you do may be worse than the status quo. The Bipartisan Safer Communities Act is a terrible bill, and in its current form, it ought to be defeated by a bipartisan coalition of Congress.

Professor Leider then goes on to explain why opposition to this legislation ought to be coming from the left and from the right. He explains in great detail why Democrats and Republicans, liberals and conservatives alike, sometimes for similar reasons, sometimes for different reasons, should be outraged, should be upset by this legislation. It offends people at every end of the political spectrum. I will go more into some of those details in a moment from Professor Leider.

But, look, when the government seeks to deprive an American citizen-- a law-abiding American citizen--of a constitutional right, we have protections in place, and those protections can be found among other provisions in the Constitution. They can be found in the 5th and 14th Amendments to the Constitution. In both provisions, you have a due process clause. In both the 5th and the 14th Amendments, it says that a person can't be deprived of life, liberty, or property without due process of law.

What does ``due process'' mean? Well, ``due process'' means the right to be heard. You can't have a deprivation of life, liberty, or property without due process. The word ``without'' has been interpreted and fairly does mean ``before.'' You have to have due process before they take it away from you. It means meaningful review at a meaningful time. It doesn't--it can't mean they can take away life, liberty, or property and then ask questions later. It doesn't mean they can take away life, liberty, and property and thereafter demand that the person from whom they took it return to litigate his or her right to exercise that thing that was taken.

Red flag laws enacted in States thus far get this exactly backward-- confiscation first; due process later. That is not how due process works. That is not what due process is. You can call that process, but it is not due process, not for these purposes. It doesn't work.

The confiscation before notice and a hearing, this model--this confiscation before notice and hearing model of red flag laws raises concerns of civil asset forfeiture, when a person is forced to forfeit her firearm pursuant to a civil order without a hearing.

This legislation places overly broad and undefined restrictions on Second Amendment rights--the Second Amendment rights of law-abiding citizens--creating the risk that false allegations could and inevitably would lead to the deprivation of a constitutional right with no recourse afforded to address the harm suffered.

Now, when you look at the legislation, there are pieces of the legislation that pay lipservice to due process. While the legislation, you might say, draws near unto due process with its lips, its heart is far from it. When you read the fine print, the due process of which it refers is not due process at all; it is post-depravation due process.

The very specific procedural protections that we associate with due process--an opportunity to be heard before a fair, impartial tribunal; the opportunity to offer up evidence; the opportunity to cross-examine adverse witnesses, for example--things that we associate as inextricably intertwined with due process because they are, those things are all articulated at the back end of this due process paragraph of the bill.

And it makes reference to the fact that that is the type of due process that, in the view of the bill, can, according to State law, be made either before or after the constitutional depravation in question, depending on the dictates of the State law at issue. That is not due process; that is something else, and that creates a lot of problems.

There are other problems with the legislation dealing with juveniles, problems arising out of uncertainties that the legislation itself creates.

Now, I want to be clear about something: I could certainly consider supporting a measure prohibiting certain older juveniles who have been convicted of crimes as adults, crimes that if they had been committed by an adult would have been deemed felonies, and, on that basis, deem them prohibited persons. I could consider that. There are a lot of public policy questions surrounding that.

And I think there are a lot of people on the left and on the right who would have concerns with opening that up, with saying: We are going to allow--in fact, require--juvenile records to be entered into the NICS system. Remember, the NICS system is a database, a database that is used to identify prohibited persons, persons who are prohibited from buying or otherwise acquiring or even possessing firearms and ammunition, as defined by 18 U.S.C. section 922(g) or, alternatively, persons to whom one may not lawfully sell or otherwise transfer firearms or ammunition, as defined by 18 U.S.C. section 922(d). Both 922(d) that talks about those to whom you may not transfer a weapon and 922(g), those who may not acquire or possess a weapon--both provisions have nine paragraphs attached to them. In each instance, the nine paragraphs are virtually identical. In other words, the universe of those who may not buy or possess weapons is essentially the same as those to whom you may not sell them.

It is almost essential--in fact, the only distinction I can think of under existing law is that while under 922(g) you may not possess a firearm if you are a convicted felon, that same prohibition extends in 922(d) in such a way that you may not sell or otherwise transfer a firearm to a person who is either a convicted felon or has been indicted for a felony and is standing under indictment, under currently pending criminal charges. Other than that, as far as I can tell, 922(d) and 922(g) are coextensive.

This legislation changes that a little bit, and it prohibits the transfer of a weapon, under 922(d), to a person who, as a juvenile, stood convicted of a crime that would be a felony. Now, this creates all sorts of uncertainties in the law because, in many if not most States, juvenile proceedings--what we would consider juvenile criminal proceedings--are, in fact, not criminal proceedings. The defendant isn't entitled to a jury trial. And in the Federal criminal system, a juvenile criminal defendant may not have a jury trial; that even if they want one, even if all the parties were to agree, they can't allow them.

In many State systems, including the State system in my State, the State of Utah, juvenile criminal proceedings are not even criminal proceedings; they are civil proceedings, very often conducted under civil law procedures rather than criminal law procedures. So the same protections aren't in place.

Again, I am open to the idea of opening this up because I think there are some juveniles who commit some offenses, particularly in their later teenage years, that perhaps ought to be taken into account for purposes of 922(d) such that you can't give them a gun or under 922(g) such that they may not possess a gun without committing a felony.

I think we could have that debate and discussion. We should have that debate and discussion. That hasn't occurred here. Instead, what we have done is muddied the waters by creating a very significant difference between 922(d) and 922(g), between those prohibited from being given a gun and those who are prohibited from possessing a gun. But we haven't defined it well, and it is not really clear what it is that we are doing or what it is that makes it fair; nor is it clear, as I read the legislation--and, again, it has been less than 48 hours since we have had access to it. It is about 80 pages long. It doesn't read like a fast-paced novel. It is full of cross-references.

And even someone such as a former Federal prosecutor who is very familiar with these laws and prosecuted cases under them--even with that level of familiarity, it has taken me some time to get through it and understand what it means. In fact, to this moment, it is difficult for me to ascertain exactly how far these changes go.

It is not clear to me, for instance, which kinds of criminal records for juveniles will be added onto the NICS system. Remember, the NICS system is this database that identifies those prohibited from possessing firearms or being given firearms under 922(g) and 922(d), respectively. It is a database that keeps track of those prohibited persons. It is not clear to me which types of juvenile records can be taken into account in those proceedings.

This also allows for a prohibited--one can be a prohibited person under 922(d) and 922(g) if they have been adjudicated--and this is terribly awkward language--if they have been adjudicated as a ``mental defective'' or if they have been ordered institutionalized. No one really knows what that term means. It is a sloppy term. It is an offensive term to many, and it is full of uncertainty.

We have compounded the uncertainty by now saying that mental health records of older teenagers, those between 16 and 18, will now be uploaded onto the NICS system such that certain mental health crises one experiences as an older teenager could result in an older teenager later in life being unable to possess a firearm without committing a felony.

That raises some concerns--or at least those drafting the bill would probably interpret it differently, to say they may possess one in some cases but not necessarily be someone to whom a gun can lawfully be sold or otherwise transferred. That also raises additional questions. Sections 922(d) and 922(g) are currently nearly identical, except in the rare exception that I noted just a moment ago.

Yet we have had no conversations about these. We have had no conversations about what this does for juvenile criminal justice, about what this does to the rights of individuals who, as juveniles, may not fully understand the ramifications of the criminal proceedings against them or of decisions regarding their mental health at the time those decisions are made and that might affect them later in life, including after they have become adults.

My point is not to say these things don't matter. They do. And I think there are a lot of these people who probably shouldn't have guns and should be prohibited persons, but we need to know what we are doing. We need to agree on what is actually happening because right now we take some areas of the law that are already fraught with some uncertainty, and we are magnifying that uncertainty manyfold.

I think that is dangerous, and I think it is dangerous in a way that both Democrats and Republicans ought to find offensive--sometimes for the same reasons, sometimes for entirely different reasons. My point is this. There is no reason why legislation like this--it does--it has got some good provisions in it. There is no reason why this couldn't be amended in such a way that would allow more Members of this body to vote for it or vote against it, depending on what it looked like at the end of the day.

But the way it is written, it has got a lot of problems with it. We have got the due process problem that I mentioned with the red flag laws. That is their distinguishing characteristic is due process problem. You have got the juvenile records problem that I mentioned just a moment ago. It is not fair to people to leave them in that state of uncertainty, especially juveniles. So that ought to be a concern to all of us.

Perhaps we might get to the place where these provisions do just what the proponents of the bill say that it does. But in this instance, as in so many other areas, the best way to get there is to go through the normal deliberative process, the process that long defined this institution as the world's greatest deliberative body, which includes a full opportunity to present and vote on amendments and to hear concerns and objections raised by Members of this body, Members of this body some of whom have experience with the statutory framework in question and can offer insights as to what might have been overlooked.

Now, look, I speak here of my colleagues who were part of this effort. I speak with great respect toward them and admiration for the fact that I think they are motivated, by and large, by a desire to help people. I don't think any Member of this body wakes up every day and says, ``I want to make America less safe'' or ``I want to make America less fair.'' I don't think that is what is going on.

But I do think we delude ourselves, we sell ourselves short, and we harm our constituents when we pretend that it is OK to pull the functional equivalent, the legislative equivalent, of running through a congested intersection with our eyes closed and think that that is not going to cause problems. That is exactly what we are doing here. This is the legislative equivalent of driving with your eyes closed through a busy intersection, and we are making some really big mistakes here. And a lot of these are mistakes that could be fixed with relative ease.

Now we will never know. We will never know what might have happened. It may be that this could have been something that, had we gone through the whole amendment process, could have been supported by nearly all or even all Members of this body, but we will never know of that now. We will never have that opportunity. Instead, we are going to push through this rushed piece of legislation that I am convinced no one had read in its entirety prior to its release and, essentially, no one was familiar with by the time we started voting on it.

And then we were told: No opportunity to make it better. If you notice a problem with it--and I have noticed several--we really don't care to hear about it. Expediency demands that we somehow just rush this through.

But the American people deserve better. There are, moreover, other provisions of the legislation that have raised some eyebrows in some corners. They are provisions of this bill that provide funding to encourage States to provide Medicaid and CHIP services in schools under the auspices of an effort to increase access to mental health, to mental health services in the schools.

While Federal Medicaid funding is, of course, something that cannot lawfully be used to perform abortions except in the case of rape, incest, or to preserve the life of the mother, some have pointed out that schools under this legislation easily could use the clinics established under the bill as a means of accomplishing the provision of abortions and also prescribe abortifacient drugs using State rather than Federal Medicaid funds. There has been some discussion even today about this. The fact that we still don't know this is troubling to many. I certainly would like to know what the definitive answer to it is. As far as I can tell, it does open the door to that, and we ought to at least have that discussion.

Now, there are some legislative options before us that address things that can be done practically to improve safety. One is the Luke and Alex School Safety Act, which is included in this bill. Like I said, there are plenty of things in this bill that are unobjectionable. And this is, certainly, first among them. And it codifies into law the Federal clearinghouse on school safety. I spoke in favor of this bill at a Judiciary Committee hearing just last week.

Additionally, I support the bill's provisions increasing penalties for straw purchasers who know or have reason to know that the gun they are purchasing for someone might be used in a crime. And I am open to other proposals that tackle safety in schools head-on.

Senator Marshall, from Kansas, has an interesting amendment that would use unspent COVID funds to improve school safety and school security.

Look, there are a lot of things in this legislation that really ought to be discussed in greater detail. And we haven't been able to discuss them. We haven't been able to debate them. We haven't been able to amend them because of the rushed process. It begs the question: Why are we in such a rush? Don't America's schoolchildren and America's teachers and America's moms and dads deserve better consideration than this?

Schools are out for the summer at the moment. It would actually be a good thing for us to take a few more weeks to debate and discuss these things and get to a better solution. Why are we rushing it?

I want to get back to the juvenile provisions for a minute. This is something that Professor Leider speaks about at some length. And he raised some observations that I hadn't entirely considered. And I would like to share some portions of that. At the end of this, I will be offering this.

Professor Leider describes one feature of the bill as particularly discouraging, particular troubling. I spoke of the juvenile provisions a moment ago. I identified some troubling features of them. Professor Leider gives additional commentary on this and provides additional observations, not all of which had been noticed by me. Here is how he puts it:

The most significant provision in the bill is the prohibition against firearm possession by those convicted of a misdemeanor violent crime against a dating partner--closing the ``boyfriend loophole.''

He goes through this after he has discussed the problems with the juvenile provisions, noting that this will create disparities. It will cause uncertainties with juvenile offenders of one sort or another. And then he does go through a fuller explanation of how those operating under the boyfriend loophole provisions might be affected.

He continues:

But the senators who negotiated this bill evidently couldn't agree on the definition of a dating partner. They define ``dating relationship'' as a ``relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.'' But relationships come in all forms, and this definition provides little guidance.

He continues:

The senators provided three criteria for consideration: (1) the length of the relationship, (2) the nature of the relationship and (3) the frequency and type of interaction between the people involved in the relationship.

Professor Leider continues:

This means that a ``continuing serious relationship'' will be some function of quantity of dates, length of time and physical intimacy. But these vague factors don't provide fair notice and are susceptible to inconsistent application.

We pause there to just note what he is referring to. The so-called boyfriend loophole exists because two of the provisions in 18 USC 922(g), defining the prohibitive persons, paragraphs 8 and 9 respectively, apply to those individuals who have either been in receipt of a restraining order arising out of a domestic relationship, under paragraph 8, or those who have been convicted of a misdemeanor crime of domestic violence under paragraph 9 of 922(g).

In both cases, there has to be a relationship that makes it about a domestic situation, has to be an intimate partner of one sort or another. Current law tends to define that as a spouse--when you are dealing with a spouse or a live-in partner, for example. But this provision seeks to address what the sponsors of the bill referred to as the ``boyfriend loophole,'' meaning what about someone who is not married and who doesn't reside with or hasn't resided in the past, didn't reside at the time with the person but was nonetheless in a type of romantic relationship.

Now, here again, it is not a bad impulse to want to close some ambiguities in the law, but you have got to do it with language that makes sense. You have to do it with language that puts people on fair notice of what the consequences of a guilty plea might be or what the consequences of not litigating more aggressively in the context of a restraining order or something like that might be. Particularly in the context of 922(g)9, where we are dealing with a domestic violence misdemeanor, the person needs to know when that person is being asked to plead guilty what consequences that might have on the person later in life. And those questions aren't answered here.

Professor Leider continues:

By failing to define ``dating relationship''--

The term ``dating relationship''-- [A]dequately--

That is the term of art that they introduced into this legislation-- Congress is effectively delegating the critical question of who falls within this ban. To whom it is delegating the hard details remains to be determined. Perhaps it will be to the Bureau of Alcohol, Tobacco, Firearms and Explosives, which has regulatory authorities over firearms or the courts may decide as they resolve cases. Either way, Congress has yet again handed off its responsibility for defining crimes to unelected bureaucrats and judges.

Then he continues:

Until a specific definition exists, it is unclear how the federal government will implement this prohibition. Suppose a criminal-records check indicates that a potential purchaser has committed assault or battery. What next? Maybe the trial record will show that the defendant was in a relationship with the complaining witness. Or maybe it won't.

If such information is available, how is the examiner supposed to gauge the relationship? The available records likely won't provide the precise details of the relationship. Even if they do, the examiner still has to decide whether the relationship was serious enough to trigger the gun disability. The Senate compromise feeds many prospective gun owners to the bureaucratic wolves.

Professor Leider's point is an excellent one. When people are going through criminal proceedings, if they have been charged with a misdemeanor and they are deciding how aggressively to fight it--whether to take it to trial, whether to plead guilty, under what terms to plead guilty--it is nearly always going to be in State court. After all, very few criminal convictions are in criminal court, a tiny percentage of them. And the prohibited persons, as defined under sections 922(d) and 922(g), the underlying convictions can be either State or Federal.

These proceedings, nearly always taking place in State court rather than Federal court, are not going to be in a position, it is not knowing to be within their jurisdiction to decide whether, or to what extent, this will put them in that status, in that boyfriend status, in that status of a ``dating relationship.''

The fact that the term is so vague, the structure is so broad and undefined that it is not reasonably possible to know what consequences the law might attach to a guilty plea in that circumstance or to a conviction following a jury trial in that circumstance.

You know, James Madison said, in ``Federalist No. 62''--and I am paraphrasing here--something to the effect that it will be of little avail to the American people that their laws may be written by individuals of their own choosing. If those laws are so voluminous, complex, or ever changing that they can't reasonably know from one day to the next what the law requires of them, this is one of those moments. We are imposing a pretty significant restriction--a restriction on a constitutionally protected right, one that may well apply for the rest of their life in some cases without them even knowing what is happening.

This is the kind of rain that will fall on the criminal defendant of all backgrounds, of all political views. Every demographic could be harmed by this in one way or another. So it really would be better if we were taking the time to draft this legislation carefully. And that is my No. 1 complaint. That is why I can't vote for it.

There are some things in here I wish I could vote for, but they have lumped it all together. They said: Here you go. Take it or leave it.

But, look, you put red flag laws in here, knowing the red flag laws, the way we have now outsourced them to States and that we have now started paying the States, giving them money to adopt red flag laws whose distinguishing characteristic is to take away someone's constitutionally protected right without due process of law--that is a problem. And when you add to that complexity by adding uncertainty about the juvenile records problem that I identified, which ought to be concerning to many liberals as well as many conservatives, and when you add to that by coming up with this vague, broad definition of ``dating relationship,'' it has huge consequences with no reasonable ability to understand and ascertain how certain court proceedings might affect someone's rights, perhaps for the rest of their life, that is a problem.

It doesn't have to be this way. I look forward to the day when the Senate will operate the way that it was designed to, the way that it once did, the way that, in fact, it has operated in the not-too-distant past. But we have to demand it. As long as people continue to tolerate, continue to accept and condone and reward and encourage this type of sham process, we will be left with subpar legislation, sloppily written.

I will conclude with the words, once again, of Professor Leider, who says it well.

The Bipartisan Safer Communities Act will likely pass because members of Congress feel enormous pressure to do something. But it is not a good bill, and it deserves further deliberation and refinement. The Senate's job is to help draft good laws by cooling the passions of the moment. Right now, it is failing.

On Tuesday senators introduced the Bipartisan Safer Communities Act--their effort to do something. But when your sole rallying cry is to do something, the thing you do may be worse than the status quo. The Bipartisan Safer Communities Act is a terrible bill, and in its current form, it ought to be defeated by a bipartisan political coalition of Congress.

Liberals should hate the bill because most of its gun- control provisions are antithetical to their criminal-justice reform agenda. The law expands the categories of those to whom it is unlawful to sell a gun or ammunition to include anyone convicted of a felony as a juvenile. This will ensnare many because the modern definition of a ``felony'' is exceptionally broad and includes offenses that aren't particularly serious. The bill also changes the federal prohibition on selling firearms to those who have been involuntarily committed to a mental institution. While it excludes involuntary commitments before age 16, the bill significantly strengthens the enforcement of the prohibition against those involuntarily committed between 16 and 18.

We should be cautious before we make it impossible for children to live normal adult lives. As liberals often point out (particularly when the death penalty is involved), children and teenagers lack maturity and impulse control. If this bill becomes law, a 12-year-old who joyrides in a car may find that he may never be allowed to purchase a gun or ammunition. Although liberals may not cry at the thought of fewer people being able to own guns, they should be concerned. A gun ban for youthful indiscretions means that these juveniles will become unemployable as adults in many security, law-enforcement and military positions that require firearm possession. And this ban will affect them no matter how much time has passed since their juvenile convictions.

The gun ban would have significant racial and socioeconomic disparities. Wealthy communities will find ways around the gun ban for their children: having robust pretrial diversion programs that don't result in technical convictions, accessing pardons through the political process, and hiring lawyers to expunge convictions. In poorer communities, children will simply be forced to take pleas that will forever alter their futures. The same goes on the mental-health side: Wealthy parents can seek voluntary treatment for their children in circumstances that may cause poorer families to seek involuntary commitment. The bill also raises the maximum prison term for unlawful firearm possession from 10 years to 15, and these regulatory offenses--as liberals often complain--disproportionately affect poor and minority communities.

Conservatives and gun owners should hate the bill, too. Gun owners who have committed juvenile indiscretions will find that they are no longer able to purchase firearms or ammunition. The bill also has strange technical defects. It prohibits the sale of guns and ammunition to those convicted of juvenile offenses, but it doesn't explicitly ban possession--a loophole that someone will clamor to close later. For adults who had involuntary commitments before they were 16, the reverse is true:

The bill allows firearms to be sold to them, but it doesn't decriminalize their possession of a firearm.

The most significant provision in the bill is the prohibition against firearm possession by those convicted of a misdemeanor violent crime against a dating partner--closing the ``boyfriend loophole.'' But the senators who negotiated this bill evidently couldn't agree on the definition of a dating partner. They define ``dating relationship'' as a ``relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.'' But relationships come in all forms, and this definition provides little guidance. The senators provided three criteria for consideration: (1) the length of the relationship, (2) the nature of the relationship and (3) the frequency and type of interaction between the people involved in the relationship. This means that a ``continuing serious relationship'' will be some function of quantity of dates, length of time and physical intimacy. But these vague factors don't provide fair notice and are susceptible to inconsistent application.

By failing to define ``dating relationship'' adequately, Congress is effectively delegating the critical question of who falls within this ban. To whom it is delegating the hard details remains to be determined. Perhaps it will be the Bureau of Alcohol, Tobacco, Firearms and Explosives, which has regulatory authority over firearms. Or the courts may decide as they resolve cases. Either way, Congress has yet again handed off its responsibility for defining crimes to unelected bureaucrats and judges.

Until a specific definition exists, it is unclear how the federal government will implement this prohibition. Suppose a criminal-records check indicates that a potential purchaser has committed assault or battery. What next? Maybe the trial record will show that the defendant was in a relationship with the complaining witness. Or maybe it won't. If such information is available, how is the examiner supposed to gauge the relationship? The available records likely won't provide the precise details of the relationship. Even if they do, the examiner still has to decide whether the relationship was serious enough to trigger the gun disability. The Senate compromise feeds many prospective gun owners to the bureaucratic wolves.

The Bipartisan Safer Communities Act will likely pass because members of Congress feel enormous pressure to do something. But it is not a good bill, and it deserves further deliberation and refinement. The Senate's job is to help draft good laws by cooling the passions of the moment. Right now, it is failing.''
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