UPDATE: OK, a bit of editorializing here. After reading and re-reading a lot of these provisions, it’s not abundantly clear what circumstances are or aren’t covered. This bill is not just limited to Internet sales, as it was advertised, but also includes soliciting for a transfer in “publications,” which are poorly defined in the Toomey-Manchin amendment. Senator Toomey says this measure throws some bones to gun owners, but without it being clear what it takes away, how can we possibly support it?
Can be found at Senator Toomey’s website. First, GOA’s assertions that doctors can put people in NICS is completely false. So is their assertion that being on anti-depressants will get you in the database. This is the same crap we heard during the last bill after Virginia Tech. With that out of the way…. I’m going to try to give you my best interpretation of the language, with no spin or chicken little routine.
(t)(1) Beginning on the date that is 180 days after the date of enactment of this subsection and except as provided in paragraph (2), it shall be unlawful for any person other than a licensed dealer, licensed manufacturer, or licensed importer to complete the transfer of a firearm to any other person who is not licensed under this chapter, if such transfer occurs-
(A) at a gun show or event, on the curtilage thereof; or
(B) pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.
This basically sets forth what is illegal under the Toomey-Manchin proposal. The definitions come later. I’d note that this only seems to make transfers between non-licenees (e.g. private individuals) subject to checks if (A) or (B) apply. Next we look at the exceptions:
(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-
(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and
(ii) the transfer was conducted in compliance with the laws of the State;
(C) the transfer is made between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins, if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law; or
(D) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986.
By my reading, those exceptions apply to transactions conducted at guns shows, on the Internet or in publications, because transfers between unlicensed individuals is only prohibited under those circumstances. BTW, (D) refers to NFA transfers.
Paragraph (4) gives the Attorney General limited powers to promulgate regulations. They stipulate a number of things the Attorney General may not do, which addresses some of the concerns with S.374. I’d encourage folks to game through this one. This is important language.
Paragraph (5) and (6) applies PLCAA civil immunities to gun show promoters and to people who operate “interactive computer services,” which in this case would mean sites like Gunbroker.com.
Paragraph (7) is where we get to definitions.
(7) For purposes of this subsection, the term ‘gun show or event’-
(A) means any event at which 75 or more firearms are offered or exhibited for sale, exchange, or transfer, if 1 or more of the firearms has been shipped or transported in, or otherwise affects, interstate or foreign commerce; and
(B) does not include an offer or exhibit of firearms for sale, exchange, or transfer by an individual from the personal collection of that individual, at the private residence of that individual, if the individual is not required to be licensed under section 923.
A flea market where a few guns go out wouldn’t be affected. Selling a gun at a huge flea market? Better run around and count! Likewise, most yard sales would not be. This doesn’t create any liability for organizers or promoters that I can tell. As for advertised sales on the Internet and in publications, I’m not pleased that there’s not more clarification on what a “publication” is, or what types of medium on the Internet are covered. Club newsletters would seem to apply. What about a bulletin board at a club? Sending an e-mail to a friend? I think the Internet/Publication language is more inadequate than the gun show language.
It gets interesting in Section (c) of the Amendment, which is supposed to offer protections from a national gun registry, except that the proposed new 18 USC 923(m) fails to forbid the attorney general from compiling a registry from all the information from closed FFLs that’s residing on microfilm in a huge warehouse in West Virginia. This is a huge oversight! By spelling out what he can’t do, you better be thorough, or the implication is that he can do it.
Now we get to penalties:
(8) Whoever makes or attempts to make a transfer of a firearm in violation of section 922(t) to a person not licensed under this chapter who is prohibited from receiving a firearm under subsection (g) or (n) of section 922 or State law, to a law enforcement officer, or to a person acting at the direction of, or with the approval of, a law enforcement officer authorized to investigate or prosecute violations of section 922(t), shall be fined under this title, imprisoned not more than 5 years, or both.”; and
(2) by adding at the end the following:
(q) Improper Use of Storage of Records.-Any person who knowingly violates section 923(m) shall be fined under this title, imprisoned not more than 15 years, or both.
Section (8) makes no sense to me, and I think they might be missing a word. Either way, it sounds like the intent was to criminalize the transfer only if it ended up to be to a prohibited person, and to exempt if you’re law enforcement, or being directed by law enforcement, but I think they are missing some “not” language in there. Either way, this would make Bloomberg’s stings illegal if I’m reading what they mean rather than what they said correctly. UPDATE: I forgot to mention. The penalty only seem to apply if you actually sell to someone who’s prohibited. If someone sold his buddy a gun not knowing there was a law against that kind of thing, because his buddy saw he posted it somewhere and said “Hey, don’t sell that online, I’ll buy it,” the penalty would only apply if his buddy was actually prohibited. At least that’s how I read it.
UPDATE: I’m striking out the above language in light of this comment. If this is indeed the case, selling to an undercover cop, or an undercover cop’s informant, also invokes the felony penalty.
The rest of the bill seems to be to be pretty much as advertised. Anyone else feel free to read over the parts I haven’t talked about and see if I missed anything.
UPDATE: I’m not sure how I feel about the state license exemption. For instance, in the proposed new 18 USC 922(t)(2)(A)(i):
… except that when processing a transfer under this chapter the licensee may accept in lieu of conducting a background check a valid permit issued within the previous 5 years by a State, or a political subdivision of a State, that allows the transferee to possess, acquire, or carry a firearm, if the law of the State, or political subdivision of a State, that issued the permit requires that such permit is issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by the unlicensed transferee would be in violation of Federal, State, or local law;
The language here is nearly identical to the current 18 USC 922 (t)(3)(A)(ii), which would just move up to (s), the current (s) being moot and proposed to be struck. The language in the proposed bill is different, but says it applies to “a transfer under this chapter.” It is not limited just to that subsection. The language is different. So which one controls? Does it change if you’re processing a transfer under proposed subsection (s) or subsection (t)? Shouldn’t those be harmonized, or rather, wouldn’t it better just to fix the one in (s), move it up, and call the subroutine from (t)? It’s also not clear to me that this would change much in terms of how ATF treats state licenses as NICS equivalents. I’m not very knowledgable in this area though.
UPDATE: If I had to sum up the effects of this amendment in a sentence: “If you’re selling a gun to someone you really don’t know, you better do it through an FFL.” The idea that this only applies to Internet sales or gun shows is really nebulous. Also, if you know your friend is a cop, don’t sell it to him.
UPDATE: John Richardson has some analysis here.
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