Get Ready For RICO
Wednesday, May 23, 2007
RICO. That acronym for the Federal
Racketeer Influenced and Corrupt Organizations Act of 1970
represents the single most dangerous threat to gun rights looming
on the near political horizon. It is the hidden centerpiece ofU.S.
Sen. Chuck Schumer's, D-N.Y., anti-gun-rights legislation--S.
77--and the absolute short-term lobbying target of New York City
Mayor Michael Bloomberg's axis of 160 urban mayors throughout the
RICO, when it was enacted in 1970, was intended to make
prosecutions of organized crime figures easy, and was called the
"hydrogen bomb" of federal criminal law.
It lifts all manner of normal due process and lowers the burden
of proof needed to convict defendants. And it empowers federal
authorities to freeze all assets of RICO defendants upon mere
indictment so that they are denied the means to pay for a
One measure of any law--no matter how well meaning the sound of
its title--is how it will be administered in the wrong hands. For
RICO, the wrong hands could well be the next presidential
administration. Or it could be a rogue blue-state mayor or
Remarkably, there is nothing in RICO that is not already
illegal. Rather, it creates a new layer of criminal acts called
"derivative crimes" based on what the law spells out as "predicate"
crimes, which include violation of any law or even regulation
specifically named as "predicate" under RICO statutes. Two such
"predicate" offenses within a 10-year period is the standard for
creating a RICO prosecution.
For RICO to kick in, there is no requirement of conviction
involving an original "predicate" allegation.
RICO also provides federally assisted avenues for "racketeering"
civil actions under which individuals or organizations can sue
other individuals or entities and collect triple damages.
Such suits--especially when tied into RICO provisions providing
loose allegations concerning "racketeering conspiracies"--would
resurrect the big-city agenda to kill outright or extort total
control over lawful firearms commerce in America.
Among the bizarre legal theories that drove a series of New York
City lawsuits against the firearms industry was the absurd notion
that a conspiracy existed among lawful firearms producers and
distributors to intentionally "overproduce guns" to ultimately fill
a huge illegal gun market run by criminals circumventing federal
law. It was, of course, an insane theory, but clearly with RICO as
a tool, a future attorney general in, say, a Hillary Clinton
administration, could revisit such theories and likely prevail.
In fact, were S. 77 or any similar legislation expanding RICO to
become law, RICO provisions could wipe out any protections against
new punitive lawsuits that were ostensibly ended by enactment of
the Protection of Lawful Commerce in Arms Act of 2005.
But there is an even more evil side to RICO civil
action--punitive suits to take down opponents on purely political
In fact, were S.77 or any similar legislation
expanding RICO to become law, RICO provisions could wipe out any
protections against new punitive lawsuits that were ostensibly
ended by enactment of the Protection of Lawful Commerce in Arms Act
Keep in mind that a series of civil RICO actions was indeed
brought by the National Organization for Women against individuals
and groups alleged to be involved in peaceful picketing of abortion
clinics, claiming "extortion" as the predicate offense. Ultimately,
theU.S. Supreme Court threw out those actions, but considerable
damage was done to many groups and individuals all the same.
As for the immediate short-term goals of Bloomberg and Schumer,
look no further than S. 77. The same RICO civil litigation tools
that are ready-made for destruction of the firearm industry could
also become the means to vindictively pursue individual gun
One of the best descriptions of the criminal law aspects of RICO
can be found in a 2004 monograph by William L. Anderson and Candice
E. Jackson, published by the Independent Institute:
"[I]t has been used--with federal judges, members of Congress,
and the press acting as cheerleaders--to overturn the protections
inherent in due-process guarantees of theU.S. Constitution ... in a
RICO case, those charged are treated as guilty until proven
If applied to federal gun control statutes as prescribed in S.
77, RICO would open the way for unprecedented civil liberties
abuses against Americans who practice the Second Amendment.
Remember, to trigger a RICO prosecution, federal authorities
only need to claim "a pattern of racketeering activity" based
solely on allegations of two or more RICO predicate violations
within a 10-year period.
For a federal firearm dealer living under Schumer's S. 77, such
a "pattern" could entail two simple paperwork errors involving
anything Schumer might claim to include "illegal gun trafficking"
within a decade, or any number of unknowing, innocent business
Once RICO comes into play, the dealer, or an accused individual,
is subjected to a whole new set of procedures and rules that make
defense difficult, if not nearly impossible.
While the current burden of proof for conviction of a Gun
Control Act "predicate" charge is the high constitutional bar of
"guilt beyond reasonable doubt," the burden of proof for the
racketeering "derivative crime" is merely that required in civil
cases--guilt based on the "preponderance of evidence." There is, of
course, an enormous difference.
But what makes RICO so dangerous for firearm owners and those in
the lawful trade of firearms is that knowledge--"state of mind"--is
neither a defense nor a requirement for prosecution.
Where many predicate crimes require overwhelming proof that they
were committed "willfully"--that is, intentionally, with full
knowledge of the law and its consequences--RICO derivative crimes
require no such state of mind. Nothing. A breach of the law alone
constitutes the sole evidence considered by a court.
Yet there is another "state of mind" issue that also factors
into the inherent dangers of RICO--the malicious state of mind of
those who would abuse the law to federally prosecute gun
What RICO Could Really Mean
It is obvious how RICO could be used against any
business entity or person in the lawful chain of federally licensed
commerce. Yet what about individual gun owners?
What about the danger to any organization a RICO
defendant might be associated with or have membership in? Under
RICO, federal prosecutors could claim such an entity is a related
"racketeering enterprise." Gun clubs. Collectors' associations. The
NRA. All could be in danger.
For firearm collectors, and especially for ordinary,
casual firearm owners who know little about federal gun laws, there
are already provisions on the books that present a terrible
potential danger for individual gun owners under RICO.
For example, it is a federal felony to transfer a
firearm from one individual across state lines to another without
going through a federally licensed dealer for the
Here's a plausible RICO scenario:
As a birthday gift, a grandfather in Belpre, Ohio, gives
a 1930s vintage Savage .410 single-barrel shotgun to his
12-year-old granddaughter a few miles across the river in St.
Maries, W.V. Most would call him a wonderful grandfather, but
technically he has committed a federal felony.
That act--a gift across state lines for perfectly
innocent reasons--is known in legal circles as "malum prohibitum,"
meaning that there is nothing intrinsically criminal about it,
other than the fact that government has outlawed it. There is no
criminal intent; there is no knowledge of wrongdoing. Compare that
doctrine of law with "malum in se," criminal conduct that is
universally wrong, like murder, robbery, assault, rape, etc.
Included in that category is real gunrunning, where real criminals
commit real felonies with real criminal intent.
Today, absent RICO, to pursue a federal case against the
grandfather, a federal prosecutor would have to prove that this was
a willful violation of the law; that the grandpa had some criminal
intent in mind. It is doubtful that any court--given the
protections of Volker-McClure--would convict, or even agree to hear
such a case.
With RICO--absent criminal intent and with a soft burden
of proof--it could be a different story. Additionally, it's
possible the gun club the grandfather belongs to could also be
prosecuted under RICO for "racketeering conspiracies." In fact, if
the grandfather was an NRA member, our Association could also find
itself drawn into such a conspiracy allegation.
In the "bad old days," before enactment of the Firearm
Owners Protection Act, miscarriages of this type actually happened
quite often. If Schumer, Bloomberg and their ilk have their way,
those "bad old days" would return, ushered in by RICO statutes
being applied to federal gun laws.
If Schumer has his way, passing down a family heirloom
across a state line could jeopardize not only you, but your family,
your gun club and any other like-minded organization to which you
belong--even the NRA.
In his April 1997 "Standing Guard" column, NRA Executive
Vice President Wayne LaPierre exposed an internal planning memo
generated in then-U.S. Attorney General Janet Reno's Justice
Department that listed a series of anti-gun "initiatives."
Prominent among them was the use of RICO against gun owners. The
language of the memo gives a frightening look into the anti-civil
liberties mindset of those who would use RICO to persecute gun
It spoke of plans to "amend the RICO statute to add
certain federal offenses involving the illegal transfer of firearms
to the list of RICO predicates ... and facilitate the prosecution
of certain RICO cases by providing the prosecutors need not prove
that a defendant personally agreed to commit any acts of
racketeering." (Emphasis added.)
Of course, that is insane. But that could be the future under an
To see what such a future could hold, gun owners must take a
look at the past. A bit of history is in order here.
It has been 21 years since the enactment of Volkmer-McClure--the
Firearm Owners Protection Act of 1986--named in honor of its prime
co-sponsors, U.S. Rep. Harold Volkmer, D-Mo., and U.S. Sen. James
A. McClure, R-Idaho, who doggedly led a long battle for its
passage. Enactment of that law succeeded in curbing what had been
years of civil liberties abuses against federal firearm licensees
and ordinary gun owners by a rogue Bureau of Alcohol, Tobacco and
When NRA's young Institute for Legislative Action (ILA) began
its seven-year campaign to reform the law, the landscape was
littered with the shattered lives of thousands of men and
women--firearm dealers, collectors, ordinary gun owners--who had
become the victims of BATF abuse.
The evidence collected and presented to Congress was so
compelling that even key senators who had been major anti-gun
leaders, like Indiana'sU.S. Sen. Birch Bayh, took active part in
shaping the reforms. Because of the exposure of BATF abuses in a
series of congressional hearings, and through successful efforts by
NRA-ILA to reach the general public with stories of abuse, the
legislation passed both houses and became law in a truly
A very key provision of Volkmer-McClure was the inclusion of
intent as an element for arrest and prosecution. Prior to enactment
of the reforms, not a single violation of the Gun Control Act
required any element of criminal intent, and every violation was a
felony--even the most miniscule, innocent slip. It was a brutal
combination often abused by agents and prosecutors.
Lives were ruined, families were shattered, and people were
convicted and sent to prison over arbitrary interpretations of
simple regulatory mistakes where no intent was ever required for
prosecution. Under Volkmer-McClure, the government finally had to
prove that breaches of the law were knowing, or willful--that
violators knew the law and intended to break the law regardless of
The abusive prosecutions were stopped dead in their tracks.
If gun control violations were added in S. 77--all of those
essential protections would instantly vanish.
Again, as stressed by Anderson and Jackson,
"Conspicuously absent from RICO is any required mental
state: Violation of RICO does not require intent, recklessness,
willfulness or even knowledge on the part of the accused."
There is nothing new about the gun-ban crowd attempting to
harness RICO as their ultimate weapon. It was proposed in 1988 by
then-U.S. Sen. Howard Metzenbaum as an amendment to what became the
so-called Brady law.
Through a considerable effort by Second Amendment supporters in
both houses of Congress, RICO did not become part of that
Among those instrumental in stopping the RICO provision then was
Dave Kopel, one of the foremost writers and scholars on Second
Amendment issues, a frequent America's 1st Freedom contributor and
now research director for the Independence Institute in Colorado.
At the time he testified against the Brady RICO amendments before
the Senate Judiciary Committee, Kopel was fresh from a two-year
stint in law enforcement as an assistant district attorney in
"Approximately 75 percent of BATF gun prosecutions
were aimed at ordinary citizens who had neither criminal intent nor
knowledge, but were enticed by agents into unknowing technical
Calling the inclusion of federal gun laws as RICO predicates
"offensive to the Constitution," Kopel warned that "the case for
these proposals is based on deception, misstatement and outright
lies" and that its "only real utility is to increase police and
government control over law-abiding gun owners."
When Kopel testified against RICO, the abuses of BATF and the
relief provided by Volkmer-McClure were still fresh in the minds of
the nation's gun owners, and he nailed the heart of the matter:
"[T]he bill amounts to a back-door repeal of the Firearm Owners
Protection Act. This bill gives the Bureau of Alcohol, Tobacco and
Firearms new authority with which to harass non-criminal gun
"For many years, BATF spent much of its time pulling the
so-called 'straw man' entrapment game. Agents posing as fake buyers
would trick gun collectors and small-scale dealers into technical
"The Firearm Owners Protection Act took BATF out of this dirty
business," Kopel continued. "The RICO gun bill lets BATF back in.
Gun collectors tricked by BATF would now be 'gun racketeers
operating a criminal enterprise.' Further, BATF could invoke civil
forfeiture, even after an acquittal, to confiscate the collections
of these small-scale dealers.
"From a civil liberties or due process point of view, the last
agency that deserves any additional discretionary power is BATF,"
Furthermore, Kopel testified: "According to this subcommittee:
Approximately 75 percent of BATF gun prosecutions were aimed at
ordinary citizens who had neither criminal intent nor knowledge,
but were enticed by agents into unknowing technical
At that time, it was a numbers game pure and simple--a
conviction was a conviction.
That brings us back to S. 77--and to any future legislation that
would promote federal gun laws to RICO "predicates."
With a combination of RICO in firearm law and Hillary Clinton or
Barack Obama in the White House, you can bet the farm the "bad old
days" would quickly return. Every peaceable individual who owns a
firearm will be in jeopardy.
The gun-ban crowd always talks about "first steps." In the case
of the Bloomberg-Schumer big lie campaign about the phony issue of
"illegal guns," this "first step"--enactment of S. 77 or any other
RICO legislation--could easily be the final step.