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The Negotiations on Private Transfers Continue

Lindsey Graham is quite often the attack dog for Senator McCain in the Senate, so it’s interesting that he’s taking a hard position on the private sale ban:

“The current system is broken,” he said. “Why in the world would you expand that system if you’re not enforcing the law that exists today to include private transfers? So I think that legislation is going nowhere, but I’d like to have a robust debate about improving the system.”

McCain would be a crucial vote for getting to 60, in order to pass something in the Senate. I would have previously thought he’d have hung us out to dry long ago if the issue was banning private transfers, so I’m surprised he is (so far) holding out. Perhaps even Senator McCain sees the current proposal regulating even temporary transfers is completely unacceptable, but McCain’s bills regulating private transfers and gun shows were pretty awful too.

This is where things start to get tricky. If the Republicans and Democrats go along party lines, the Democrats have 55 votes out of the gate, but reality is that there would likely be some aisle crossing on both sides. This is where things can come down to how badly you lose, rather than whether you can win. Sure, you can bet the Dems can’t come up with 60 votes, and oppose any and everything, and maybe you’ll win that bet. But what if you don’t? Do you trust House leadership to kill anything that passes the Senate with a 60 vote margin, even if it’s something as bad as Schumer’s background check bill? Do you float an alternative bill that has the worst of what you oppose removed, and offer a sacrifice to the “something must be done” gods?

We’ve been here many times before, and short of total victory, there will be a lot of second guessing and blame going around. But what choice would you make? If the choice is between bad and disastrous, do you risk disastrous? I think there are times when the answer to that is yes, but I don’t think it’s always a black or white issue. It may be that we’re confident they can’t get to 60 on anything, or the House is a stronger bulwark against gun control than I would imagine, and opposing anything and everything is the smart tactic for this particular situation. But I don’t think we ought to be blind to reality, and reality is that when you’re dealing with slim margins the situation can go south in a hurry.

If all 80 million, or hell, even 20 million, gun owners called or wrote their Senators, we would not even be having this conversation, but the reality is most will not. Meanwhile, Bloomberg will continue to run ads telling everyone how reasonable “universal background checks” are, and who could be opposed to that? The White House will continue to twist arms. Lobbyists on their side tell lawmakers to look at their polling, and try to convince them any opposition to gun control is already baked into the election figured. Our lobbyists will show their polling, and threaten to upset apple carts in 2014. Can we keep 41 Senators? How confident would you be?

49 Responses to “The Negotiations on Private Transfers Continue”

  1. Shawn says:

    As I said people in AZ need to keep contacting McCain and even Flake. MAIG has dumped around $1,000,000 in ads just going after Flake.

  2. Andrew says:

    Would like to play their own game back at them: whereas they say banal things but mean evil, say something that sounds pleasing to the rationally ignorant but doesn’t hurt us. Such a bill could even require a background check for all transfers from someone in the business of selling guns to someone not in the business. Maybe a no-more/no-less 3-day cooling off/waiting period for the purchase and delivery of tax stamps for AOWs, DDs, SBRs, and gun mufflers.

  3. McThag says:

    A significant problem is that we HAVE been here before. Over and over. It’s always bad vs disastrous and we always choose bad now only to be right back at bad vs disastrous later.

    We really need to have “18USC Chapter 14 §922(o) and 922(r) are henceforth removed” in every single bill. Carthage was eventually destroyed, you know.

    • McThag says:

      Typo! Should be Chapter 44. DOH!

    • Sebastian says:

      We end up here again and again largely because gun owners only wake up in large numbers when we’re facing threats. It takes that kind of vigilance to pass bills in “good times” too. We are limited only by how much people are willing to get involved.

  4. Brad says:

    Reasonable

    A true background check bill, one that would fix the broken existing system, while providing private sellers an opportunity to check the background of a handgun buyer, is reasonable. That is why it polls so well, and why it is such a dangerous weapon in the hands of our enemy.

    Because the anti-gunners just can’t help but lie to the public, playing the old bait-n-switch con. It amazes me how easily the lies spill out of the mouths of people like Obama and Schumer, with their newly discovered ‘respect’ for 2nd Amendment rights. Yet Schumer serves up the same old poison hidden in an apple, the same as he as always done. Schumer really is a snake, isn’t he?

    • The Jack says:

      There’s also how casually the rank and file antis will go “Private Sale ban? Who’s talking about that? that’s a Fax news conspiracy!”

      And a second later will go. “Of course we want to close that loophole. Isn’t it easy to just go to a gun shop?”

      Such trustworthy people. I’ve also noticed that a lot of them have abandoned AWB and instead are openly talking of banning semi-autos.

      • Brad says:

        “I’ve also noticed that a lot of them have abandoned AWB and instead are openly talking of banning semi-autos.”

        When the enemy has already banned so-called “assault weapons”, what is left for them to do? Here in Commiefornia it looks like a full on ban of all semi-autos might be reality before the year is over.

        Yet the snakes for “reasonable” gun-control will not speak one word of opposition to such extremism. Just as they did not raise one word of objection over New York’s crazy new law.

        The face of “safe, reasonble gun control” (at 50 second mark), Governor Cuomo, what a snake!

        http://www.youtube.com/watch?v=oc74IY1pAeE

        • Jim says:

          If Supremes were not okay with a handgun ban in Heller and McDonald, I don’t see how they would allow a semi-auto ban, which would band all sorts of handguns again. CA is crazy…

    • Sebastian says:

      The real difficulty is that you have to define transfer. Defining a sale at retail is fairly simple, because a dealer doesn’t really have any reason to transfer something out of his inventory that isn’t a sale. About the only example I can think of is a temporary transfer at a shooting range, and ATF has generally allowed that provided the gun stays on the licensed premises.

      It’s a lot more difficult when you’re speaking of private people, because shooters transfer guns all the time on a temporary basis. If you define it tightly enough, you ensnare honest people doing ordinary things with their lawfully owned guns. Even if you define it loosely, you still have to draw a line somewhere where temporary possession isn’t so temporary. Schumer says 7 days. What about a year? What if a friend lends me a gun and it goes to the back of the safe, and forgotten about until it turns up at a crime scene after a residential burglary? Should I then face a 5 year felony?

      This isn’t an issue that can be fixed acceptably. You need to completely overhaul the federal gun laws, and that requires good faith on the part of the gun control crowd, which is not going to be forthcoming.

  5. HappyWarrior6 says:

    We have at least three US senators threatening a filibuster, too, don’t forget.

    • Sebastian says:

      Yes. That is what triggers the need for 60 votes instead of a bare majority. If a bare majority were all that would be required, I think we’d probably see a private sale ban and perhaps worse pass the Senate.

      • HappyWarrior6 says:

        Yes, but I meant that there is now serious indication that a filibuster would occur on a motion to open debate as opposed to motion to invoke cloture. And it’s more than a veiled threat considering Rand Paul has done it before. I would hope he could take the time during the filibuster and narrate the failed history of gun control for C-SPAN viewers.

  6. Jeff Dege says:

    The objection isn’t to the background check, it’s to the record-keeping. Provide me a way to easily verify that a buyer has passed a background check, and I’ll use it. As a matter of fact, I already do – I’ve not made many private sales, but when I have, I’ve made having a carry permit a condition of sale, because I know that someone who holds a carry permit has passed a background check.

    There’s a simple way around the record-keeping issue, while avoiding the privacy issues inherent in allowing any buyer to run a NICS check on any purported purchaser: allow people to have background checks run on themselves, and obtain some sort of certification to demonstrate that they’ve passed. And then require that every seller see that certification prior to making the transfer.

    This achieves the purported goal, of requiring background checks on every transfer, without creating a mechanism by which every transfer is reported to the government. Which is, of course, why it’ll never be considered. Because the proponents of “Universal Background Checks” care far more about the reporting than they do about the background checks.

    • TS says:

      Right you are. They keep touting 80% or 90% (whatever the Luntz poll de jour says) of NRA members want background checks on private sales- so why not make a voluntary system? 90% of gun owners would use it, right? How can you expect any better than that?

      They would never go for that, even if they lose their bill because they would conceded the background check/”gun show loophole” issue forever, and not be able to get government control and massive legal pitfalls out of it. Proof that background checks are not their end game.

  7. YOu are looking at it all wrong. The GOP senators should vote “Yes” on any amendment that DiFi dreams up and they should come up with worse ones on their own. They should turn this bill into the Platonic Ideal of a anti-gun Christmas tree. Make it so awful that no one but Shumer and DiFi dare vote for it.

    That’s what the NRA does so poorly. They negotiate and water down the bill until it’s just painful, not fatal. They should be working hard to make it as bad as possible so that no one in their right mind would vote for it.

    • Sebastian says:

      So awful they won’t vote for it out of what inclination? That’s just going to confuse the messaging with lawmakers. You’d be saying “We’re for bad amendments X, Y, and Z” and then have to turn around and say “Wait, never mind, we’re really against all that, now you need to vote against the actual bill.” And all the while the gun control folks will be happy go around telling colleagues, “No, the NRA backs this.”

      I think that’s guaranteed to make a bad situation worse.

      • Are you kidding? Politicans inject poison pills into legislation all the time. If the NRA had balls, they would threaten to do exactly that. They’d openly tell everyone that they were going to help DiFi put her AWB language back into the bill, along with a Standard Capacity mag ban. They’d openly tell everyone what they were doing and why.

        AWB is a no-hoper. They couldn’t get 40 votes for it. We aren’t fighting over the edges of the debate, we’re fighting for the middle of the road Senators. We need to make the bill so bad that those middle of the road Senators say “I’ll get voted out of office if I even THINK of voting for that monstrosity. By making it that bad, those 10-15 Senators in the middle have to vote on our side.

        By calibrating the level of pain you are willing to tolerate, you are doing their work for them. You give them incentive to introduce wild legislation and then “compromise” down to what they think they can pass. They pretend that they’ve given up the worst of their demands while laughing at us because they’ve tightened the ratchet one more notch. And we help them.

        • Sebastian says:

          Poison pills generally don’t involve promoting the opposite of what you really stand for. It would be something like attaching national reciprocity to the bill (if you had the votes to accomplish it), which would then put the anti-gun lawmakers in a pickle.

          • McThag says:

            How’s about this for a poison pill for AWB?

            Scary looking guns are banned unless they are machineguns. Reopen the NFA for new MG at $5 per and a NICS check.

    • Bitter says:

      Are you actually proposing that pro-gun lawmakers vote for the most extreme gun control measures? Don’t get me wrong, I get the concept of allowing poison pill amendments. But it’s another thing entirely to actively encourage pro-gun lawmakers to build up anti-gun records. Sure, you can say that NRA would “just know” how to really score it, but what about the other gun groups that would assail the lawmakers? You want to have them voted out of office? They would get primary challengers over this stuff, and those challengers would get traction by pointing to the record vote of the pro-gun incumbent supporting extreme gun control. Why on earth would someone want to help us lose our rights and any incumbents who might be willing to stand with us in the future?

      • What other groups? The GOA affiliated State groups? It’s the GOA affiliated “No Compromise” gun groups who taught me this. That’s the reason they are “No Compromise.” Because Compromise is the process where you lose slightly less of your rights than the anti-rights crowd asked for, BUT YOU STILL LOSE.

    • AndyN says:

      The GOP didn’t have to encourage Democrats to load up PPACA with every idiotic leftist health care fantasy, 2,000 pages of them actually. All sorts of crap that any sane person would oppose, and polls continue to tell us majorities of voters do oppose when taken all together. Democrats did that all on their own, then came up with plenty of votes to pass it, then held onto the Senate and the White House.

      That was an issue that everyone agrees effects all of us. There are a lot of people who don’t think gun rights do. What on earth makes you think in today’s political climate – where Senate leadership that refuses to pass a budget for 4 years and a President who joins them in adding $1 trillion in national debt every year while driving real unemployment into the double digits and focusing on leftist pet projects all get to keep their jobs – that politicians have any fear of being punished by voters for even the most extreme gun control laws?

  8. J T Bolt says:

    Universal background checks for private sales, but no serial numbers. 3 check boxes for pistol rifle and shotgun. No confirmation the sale and transfer actually occurred. Get rid of the penalties for anything other than a transfer to a prohibited I’d pay $50 a year to run a phantom.

    Extend serial-numberless transfer regime to FFLs too.

    When they squawk about how it will be impossible to track guns sold that way, well, gun registration is illegal. If you want to register all guns then put up a bill for universal registration, DiFi, and see how it flies.

    And how would this have prevented Newtown, this registration? What is the purpose of registration?

  9. Andy B. says:

    I’m sure this is going way back in a worn-out conversation, but, you know our timeless chestnut, “Guns don’t kill people, people kill people?” Well, what do you think they’re really interested in registering? The tool or the artisan?

    Background checks are to register people. They’ve already figured out that there are too many existing guns out there, that have fallen out of the system or never been in it, to worry about trying to track guns by serial number.

    Register yourself as a gun owner, and they’ll just come for you someday, and everything they can find at the time. If ten percent of what they find matches their records, they’ll figure they’ve been doing good. But it will make no difference, for you.

    • Jim says:

      Anyone with a CCW (in a non-constitutional carry state) understands this compromise all too well. We’ve made a deal with the devil…

  10. Publius says:

    Fuck ’em all!!!!

    It is my STRONG opinion that this is a problem caused by politics, and that by its very nature politics will never contain a solution.

  11. TS says:

    I really don’t like seeing the language “expanding background checks to include private sales” especially when it is someone supposedly on our side who fell for letting them frame the debate. There is no “expansion” happening. There is only making more things illegal. In this case, tens of millions of things.

  12. Jake says:

    The only question is “why are we tolerating these people ‘negotiating’ our Rights away?” Every Republican (and every Democrat not in an ironclad safe state) needs to be told “Vote for any gun control and we will make sure you lose your next election. Period.”

    That’s the only “negotiation” we need to be doing.

    Like Sean said, “Compromise is the process where you lose slightly less of your rights than the anti-rights crowd asked for, BUT YOU STILL LOSE.” They’ve been nibbling at our freedom for eighty years now. Enough is enough.

    • Sebastian says:

      They can be told you’ll vote them out, and they might believe it. But what if they don’t? And what if they call your “bluff” so to speak, and when elections come out they are the one left standing?

      These are the dynamics at play. Gun owners have to be able to swing elections to have any real power, and the fact that we’ve demonstrated in the past we can swing close elections is why everyone backed off this issue for a while. But it’s been a while, and every once in a while, there’s going to be a locking of horns. In the mean time, we have demonstrated we can swing primaries, which is why I think you see the GOP more solid than they have been in the past.

      The Democrats are betting the pro-gun vote is baked into the election numbers, in other words the pro-gun vote is already going to the Republicans, and the Republicans are already losing. That’s what’s being spouted by the likes of Obama and Bloomberg. Are they right? You need to have an election to find out. In the mean time, they have two years to convince lawmakers to vote on that narrative, and to the extent that narrative is believed true, you’re in damage control mode.

    • Sebastian says:

      Like Sean said, “Compromise is the process where you lose slightly less of your rights than the anti-rights crowd asked for, BUT YOU STILL LOSE.” They’ve been nibbling at our freedom for eighty years now. Enough is enough.

      I’m of the same mindset, but you don’t always have the choice of not losing, and then what do you do?

      • You convince your opponents to lard the bill with every outrageous idea they have, making it easier to won in court. This also drives the pro gun Dems out of their party to us. Then we stomp the Dems senseless in the next election.

        Stop thinking like a loser. The “prevent defense” doesn’t work in politics. It’s a bare knuckles brawl and we will get bloody.

        • Sebastian says:

          And what happens when you lose in court, when they do the intermediate scrutiny dance uphold the law? And then cert is denied because there’s no split and Scalia isn’t sure he can get to 5 on that issue?

          And then what happens if you don’t stomp them senseless because guns is drowned in a host of other issues?

          I’m not saying that is the case now. I think we stand a good chance now of beating all this at the federal level. I’m not saying losing less still isn’t losing, sometimes winning is not a choice, and that becomes the case when the Dems start pushing against the magic number 60.

          But OK, let’s go with your poison pill strategy. We put a blanket semi-auto ban with felony penalties that would take effect immediately. That’s pretty awful. There’s a few things to consider:

          • Reid already said there aren’t 40 votes for Feinstein’s bill, which is a lesser ban. Where are the votes going to come from to support this amendment? You’re going to have to tell friendly lawmakers to make an anti-gun vote. What’s going to happen when their constituents question that, or it gets raised by a primary challenger. They are going to say “Well, NRA said it was OK,” and then what’s NRA going to do when the anti-NRA groups call them out as compromisers. This is how you ruin reputations with voters who don’t pay close attention but nominally care about the issue, and why it’s a non starter.
          • If it passes, everyone who owns a semi-auto will be a felon until the court challenge or repeal. That could take years. In the mean time, people will go to federal prison who aren’t otherwise criminals.
          • There’s a possibility it gets upheld by the Courts under a weak standard of scrutiny. Perhaps Scalia has 5 votes to strike a semi-auto ban, but perhaps he doesn’t. We only had 5 votes on the very basic definition of keep and bear, and even then without a strong standard of review established, going on two cases.
          • There’s a possibility you don’t unset enough people who voted for it to repeal it. The White House could still be hostile and then you have to override a veto to get repeal.

          I just don’t see how this would work. It assumes a lot.

          • AndyN says:

            Here’s one more thing to consider. You keep mentioning Scalia getting 5 votes. If such a bill passed, challenges wouldn’t make it to the Supreme Court tomorrow, or next week, or next month. Scalia is 77. By the time a challenge to a gun control law passed in the next few months makes it to the Supreme Court, he may no longer be on the bench. If he retires in the next 3-1/2 years, his replacement is unlikely to be as reliably deferential to our constitutional rights, to put it mildly.

            • If going this route you’re basically playing chicken.

              If the jury box fails you’re basically betting on the law being so draconian that people begin “direct political action,” or accepting where the chips fall and rolling over to show your belly to Sen DiFi and Bloomberg. That means you might as well write into the draft bill some more Intolerable Acts like suspension of habeas corpus corpus, suspension of posse comitatus, declaration that any states or political subdivisions which refuse to submit and cooperate with the legislation are to be considered in a state of rebellion, and so on and so forth. That makes it crystal clear that people better know what side they’re on the day the SCOTUS delivers their decisions.

              If a full on draconian Intolerable Act (and the full wet dream DiFi Endless AWB, coupled with the “gun trafficking” and “private transfers” BS is one) goes down and is upheld in courts then best realize where the road goes next, and it is not pretty.

              Obviously there are some arguments both ways…
              “But when shall we be stronger? Will it be the next week, or the next year?”” — Patrick Henry
              “If there must be trouble, let it be in my day, that my child may have peace.” — Thomas Paine

              The arguments against crossing that particular Rubicon are obvious and stark.

              It is extremely sobering and distressing for any reasonable person to consider just how far the gun grabbers are reaching. They are prodding the rattle snake, almost intentionally it seems.

  13. LC Scotty says:

    Left unstated by all this is the fact that NICS only looks to see if you’re on the list. Since I know that, say, Rob Pincus (or Massad Ayoob or pick some not nationally famous firearm trainer from a few states away) is not a prohibited person, I get a fake id with his name on it.

    IOW I need to use all the guile of a high school senior trying to score a few illicit beers to get around the background check. I’m pretty sure that if I’m the sort of cat that NICS is aware of that I have contacts to get a fake id.

  14. Sebastian says:

    Actually, there would be a way to do background checks totally anonymously, but it would require third party auditing, or a trusted third party to do the anonymozation. I’ve death with similar things in the Pharma business where HIPPA is an issue. But it requires trust that honestly isn’t there on either side of this debate, so it’s a bit of a non-starter.

    • LC Scotty says:

      David Codrea has proposed/passed along a proposal of a blind system kept at the FFL location. Basically, once a month a dedicated computer at the FFL links into DC to get an updated list of names of prohibited people. The checks are done at the FFL by interrogating the locally stored copy of the list. No records retained, and it’s a simple go/no go check.

      • Sebastian says:

        I’ve read David’s proposal, and it would work. The chief objection from the other side is going to be keeping the records at the FFL up to date. I think The Scarlet License idea floated by Kathy Jackson would work better, in my opinion.

      • Sebastian says:

        You’ll also get privacy objections from privacy advocates, but you could anonymize the records so that the person needs to come in before you can see what their record is. If we could get to the point where only serious and violent crimes triggered a prohibition, I’d be fine with suggesting there’s not any reason for criminal records of that nature to be private at all, and then dealers can, like David Codrea mentioned, just look up the list and find the name, or create an anonymized token that finds the record.

      • Jeff Dege says:

        There’s absolutely no reason that the background check has to be done at the time of purchase, or that a separate check be done for every purchase.

        Do the background check, get a certification that you’ve passed, and buy whatever you want, whe3never you want, from whomever you want.

        • Sebastian says:

          That certification is more correctly called a license, and it would have to behave like a license in order for it to be useful for the intended purpose.

          • Jeff Dege says:

            The “intended purpose” of background checks is to establish a registry of all firearms. To reverse the presumption of innocence, making possession of a firearm a criminal act of which a proper record of transfer becomes an affirmative defense.

            That is what they want, and that is what we simply cannot allow.

            There are ways of running background checks that do not provide a mechanism by which individual transactions can be tracked. Permits to Purchase are one. But they aren’t being discussed because it’s the tracking that is important to them, not the background checks.

            • Jake says:

              The “intended purpose” of background checks is to establish a registry of all firearms.

              Close, but I think you’re slightly off target. The real “intended purpose” of background checks is to establish a registry of all firearms owners.

              There are too many unpapered guns for a firearms registry to really fulfill its intended purpose, but once they have a list of owners, finding the actual firearms isn’t that hard.

              • Jeff Dege says:

                As soon as we have a law establishing that there exist some sort of paperwork documenting every legal transfer, the possession of any firearm manufactured after the date the law became effective will be presumed to be illegal, unless the paperwork was created (and hasn’t been lost by the government.)

                It’s not that every gun will be tracked, but that every gun owner will be liable.

  15. Andy B. says:

    “Anyone with a CCW (in a non-constitutional carry state) understands this compromise all too well.”

    I was thinking that too as I wrote what I did, but didn’t want to drag in too many issues.

    The thing that is worrying/scaring me is, I see so many people discussing what should/shouldn’t be written into a gun control law, when law only applies to us. For my example I’m thinking of the Pennsylvania law that says explicitly and in a couple ways that the PICS cannot be used as a firearms registration system; and yet we are in our 18th year of the state police using it for a firearms registration system, and the State Supreme Court has said that is just fine with them.

    At the time the legislation was passed, everyone who was rational said the prohibition of a registry was a great feature in an otherwise virulently anti-gun law. Beyond a doubt that feature helped that law get passed. But not being rational in the same way as everyone else, I said BS, it was a feature that, alleging to constrain The State, would never be enforced. The only thing that surprised me was how flagrantly the cops violated the law; I expected them to violate it surreptitiously, and that we would only see if via circumstantial evidence. I wish.

    That’s what I think of when I read people’s desires for a “no serial number” provision in an expanded background check law.

    I’m sorry to live in the past, but so far I’ve found the past both instructive and predictive.

    • Jim says:

      You are absolutely correct. It’s why I have reached the “No More Compromises” position. I was too young for the 1994 AWB and the late Clinton administration lawsuits strong-arm tactics against the firearm manufacturers. The Dems have turned me into a single-issue voter for the rest of my adult life (I’m fairly young).

      Our opponents are interested in eliminating our culture and our rights. Nothing else will satisfy them. Any law they can get passed that establishes more roadblocks is a step in the right direction for them. They put up a front about wanting to have a “conversation” or “dialogue,” but in reality they just employ the old “door-in-the-face technique.” They ask for the moon (ban all semi-autos), and then compromise from there. Meanwhile, we never get a single inch further, and only retreat little by little. I have informed both my (R) Senator and local (R) Congressman that I will personally expend my time, energy, network, and resources to get them out of office should they vote for any of the bills up for “discussion.”

      We have to start thinking bigger. If they want to expand background checks, then I say that firearm safety courses must become a mandatory part of the elementary school curriculum across the nation (5th~6th grade), where children will be exposed to firearms, learn how they operate, and learn how to clean them. They don’t even have to shoot them. That would be a real compromise, IMHO.

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