- The Washington Times - Wednesday, September 4, 2013

The National Rifle Association has thrown its weight behind a challenge to the constitutionality of the National Security Agency’s domestic snooping.

In a court filing Wednesday with the federal district court in New York, the gun rights group argues that the NSA’s mass collection of records about every Americans’ phone calls and emails would allow the federal government to create a national gun registry.


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“It would be absurd to think that the Congress would adopt and maintain a web of statutes intended to protect against the creation of a national gun registry, while simultaneously authorizing the FBI and the NSA to gather records that could effectively create just such a registry,” the NRA’s attorneys said in a friend-of-the-court brief filed in support of a challenge by the American Civil Liberties Union.

The brief also argues that the collection of “metadata” about phone calls and emails — information about who is contacting whom and how frequently — inevitably chills the exercise of First Amendment rights of association and free speech, because it would enable the government to identify, for instance, who was a member of an NRA phone tree or email action network.


But in its argument about gun rights specifically, the brief criticizes the federal government’s broad interpretation of Section 215 of the USA Patriot Act.

This “business records” provision is used by the NSA to seize from phone companies and store for five years records about every phone call in the U.S.

The NRA brief comes as one of the authors of the Patriot Act — the huge suite of anti-terrorism laws hurriedly passed by Congress in the aftermath of the Sept. 11 terrorist attacks — said in another amicus brief in the same case that lawmakers never intended Section 215 to be interpreted that way.

Rep. F. James Sensenbrenner Jr., Wisconsin Republican and former chairman of the House Judiciary Committee, argues in the brief — filed by the Electronic Frontier Foundation — that Congress did not write the business records provision to permit the NSA to collect the records of every telephone call made to, from and within the U.S.

“I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security,” Mr. Sensenbrenner said in a statement.

“Centralized power threatens liberty. Americans are increasingly wary that Washington is violating the privacy rights guaranteed to us by the Fourth Amendment,” he added.

As the NRA brief notes, the Department of Justice had long sought a business records authority based on a nonjudicial subpoena, and the NRA and civil liberties groups successfully got such a provision struck from the Anti-Terrorism and Effective Death Penalty Act of 1996.

Moreover, Congress has repeatedly affirmed a ban on any centralized collection of firearms records, the NRA brief states, in order to protect the privacy and Second Amendment rights of gun owners.

“The broad view of Section 215 espoused by the government, however, would implicitly override these protections. Requests for ‘firearms sales records’ are expressly provided for in the statute … under the government’s reading, the United States could simply assert that it is necessary to seek all firearms dealers’ sales records … in order to facilitate later searching in connection with an anti-terrorism or counterintelligence investigation.

“It strains credulity to think that the Congress could have intended that result,” the NRA brief concludes.