More on the Toomey-Manchin Amendment

So the analysis of the Toomey-Manchin Amendment here turned into a good bit of crowd sourcing, and readers have uncovered a number of issues. I want to address them here. I’m kind of torn between trying to make sure people have correct information, and just letting the panic play out, because panic, politically speaking, is good, and I don’t honestly like this deal. But I think a case can still be made that the deal is bad, so I will lay out some clarifications.

One of the big surprises is that it does not cover advertisements solely on the Internet, but also to publications. I asked someone for a Black’s Law Dictionary definition of publication:

“Generally, the act of declaring or announcing to the public.”

But the person (who has a law degree) who I asked believed the Court would be more likely to use the ordinary definition, which combined with the mention of “listing,” would mean a periodical, gun club newsletter, etc. So just holding up a sign would not likely be construed as publication. Nonetheless, by failing to define the term in the amendment, it’s open to interpretation by the courts. If they mean a newspaper, magazine or other periodical, they can plainly say so.

A reader pointed out that it would make it illegal to rescue guns from a buyback. I thought that might be plausible if a sign or verbal announcement would be considered publication. I think it’s still plausible, but it would be a stretch. I think it would also be a stretch to suggest that a buyback is a gun show. The guns are not being displayed for sale, you’re soliciting a sale from people walking buy. UPDATE: A reader surmises it would actually make buybacks illegal. Buybacks are generally advertised in publications, on the Internet, and in newspapers. Actually, yes, it would make buybacks illegal, I believe.

Another reader asked about C&Rs. This doesn’t change anything about C&Rs, except that for purposes of guns that are curios and relics, you are a licensee, rather than a non licensee, so you can acquire the gun from a private seller the same way any other FFL would be able to, provided you log it in your A&D record. Someone also asked about antiques. The language does not change how antique firearms are treated.

Chris from Alaska brought up a point about the FOPA protections. The bill creates a new exception where the protection no longer apply if the firearms are being transported to commit any crime punishable by a period over one year. He pointed out that transporting a 30 round magazine through Colorado would be such an offense. I’d note that the language covers firearms and ammunition. Presumably that would also cover a magazine, since you need a magazine to operate the firearm. But what about 10 magazines, say, if you were on your way to a competition? We’ve seen enough abuse of FOPA provision that I think this language needs to be air tight. There can’t be any wiggle room. The language needs to include “and firearm accessories” as well.

As many have pointed out, the Concealed Carry exception doesn’t really do anything for us. One reader commented Oklahoma issues 10 year carry permits. So Oklahoma is not likely on the list of states whose carry permits are NICS equivalents. The language in the Toomey-Manchin amendment was a bit different, but not radically so, and as I pointed out, they left the existing language in place currently in 922(t), which would become 922(s), so it’s unclear which controls.

You are still permitted to liquidate large collections from your home, and not be covered under the gun show language. Your home can never be a gun show. But someone else’s home could be. I missed the language there, and have removed that conclusion from the previous post.

I have concern about the section on penalties. If I had a friend who was a cop, and I privately sold him a gun after he saw me advertising it in a club newsletter, and I didn’t go through a check, the penalty applies. For someone not prohibited, it would not. Better to suggest law enforcement, or a law enforcement informant, if and only if they are posing as someone prohibited under 922(g) and 922(n).

I am of the opinion that the Toomey-Manchin Amendment doesn’t honestly give us enough to justify the vague language, and what we’re being asked to give up. I think it would be difficult for an ordinary gun owner to know what’s legal and what’s not legal, so the smart advice would be to run all sales to someone you do not know, or who is a cop, through an FFL. I think there are probably also quite a lot in here we’re missing. I don’t trust what the courts and the DOJ are going to do with it. Also, today’s exceptions will be tomorrow’s loopholes. I think this Toomey-Manchin deal needs to be opposed, and people need to call their Senators.

48 thoughts on “More on the Toomey-Manchin Amendment”

  1. Am I reading this law in correctly, or does it actually seem to ban gun buyback programs? The language of the law seems to make it illegal to transfer a firearm to a law enforcement officer or one of their designated representatives without going through a form al background check. Maybe that would be an unintended consequence of the wording of the law.

      1. “A reader surmises it would actually make buybacks illegal. Buybacks are generally advertised in publications, on the Internet, and in newspapers. Actually, yes, it would make buybacks illegal, I believe.”

        Gun buybacks are patently illegal under NJ law, but we have them almost monthly. The fact that something is illegal will not stop the government from doing it anyway (they are a lot like criminals that way).

    1. If you’re reading the amendment to 18 USC § 924(a), then the language in question is designed to allow prosecution of “sting” operations involving law enforcement personnel [or “person(s) acting at the direction of, or with the approval of, a law enforcement officer authorized to investigate or prosecute violations of section 922(t)].

      Others might call this legal entrapment.

  2. It just seems impossible to me that anything crafted by Schumer (or Bloomberg) would not be just loaded with fishhooks. Critical to slow the process down to have a chance to discover all of this. Toomey should have known that when you sup with the devil you should use a long spoon.

    And if there is to be a bill we have to get something equivalent to what we are giving up. Just giving up less than the bad guys wish list is not a compromise.

  3. So instead of de jure banning of private sales, it’ll have the de fact effect of banning private sales- due to the confusion and potential penalties.

    If National Reciprocity was in there, it might be acceptable. But we get nothing out of it, so its bad.

    1. This is exactly right.

      The language is both so precise, sweeping and simultaneously vague that it will scare all but the closest of non-family friends into always selling to dealers rather than risk committing a federal felony.

  4. Exactly. Too much gray area and too many gotcha’s. Oppose.

    And another “What If?”. If I advertised an accessory, let’s say a bipod, and I mentioned in the “publication” that it was previously attached to a low use Model 10 Savage in .308 w/ a bull barrel & accutrigger and someone contacts me and asks if I want to sell the gun with the bipod, would that run afoul of the law?

    1. Yes. THough if you just listed the bipod, and the person separately and not via Internet or Publication inquires about the gun it was attached to, then I believe it would not be a covered transaction that would have to go through an FFL.

      1. OK, why? I didn’t list the gun itself for sale. The person that contacted me did it over the phone or FTF when they came to look at the bipod. How does it qualify?

        1. OK, if they contacted you via the phone or FTF, it wouldn’t be a covered transfer if you didn’t list the gun for sale.

    2. You would be taking a big risk by selling a gun to anyone where initial contact was made over the Internet, even if the specific firearm transferred was never discussed. Remember that the language speaks only to the “publication by the transferor of his intent to transfer, or the transferee of his intent to acquire” a firearm. Intent is very vague; it is not limited to specific items, times, places or dates.

      This is at best a grey area and will ultimately be interpreted by the courts. It looks like its intent is to capture any buyers or sellers whose interests became known to each other in any manner other than face-to-face contact. And that captures a large swath of conduct.

  5. ALL private transfers are regulated!

    Paragraph (1) bars unlicensed parties from selling at shows / events / internet and publication et al. Paragraph (2) deals in general with ALL transfers – not just guns shows and online / publication. The way that this is written – paragraph (2) appears to apply to ALL private transfers.

    First, here is all of paragraph (1)

    “(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.

    Now Paragraph 2 says paragraph 1 shall not apply if … and there is a bunch of “ifs” – here is just one of them:

    “(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…”

    The above references ALL private transfers not covered in paragraph 1. This is sneaky stuff and paragraph 2 is very dangerous as written. Here is all of paragraph 2:

    “(2) Paragraph (1) shall not apply if-
    “(A) the transfer is made after a licensed importer, licensed manufacturer, or licensed dealer has first taken possession of the firearm for the purpose of complying with subsection (s), and upon taking possession of the firearm, the licensee-
    “(i) complies with all requirements of this chapter as if the licensee were transferring the firearm from the licensee’s business inventory to the unlicensed transferee, 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;
    “(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

    Paragraph (2) does not specifically deal with gun shows or internet – rather it deals with all – ALL transfers. Would love to be wrong about this – hope I am.

    1. Also this thing about publication is soooo broad – why couldn’t they define what they mean by “publication” in this proposal?

      1. I don’t get the impression this bill was written by strong firearm experts. They probably didn’t think anyone would question what a publication meant.

    2. You’re not reading it correctly. Paragraph one is the controlling language on what is prohibited. Paragraph two only describes the circumstances under which paragraph one does not apply. Paragraph one already limited itself, so restating the limitation does not matter. The logic of it is

      1 is unlawful if A and B are true, but 1 is lawful if you comply with 2.

      1. No, (1) is the blanket prohibition, and (2) are the exceptions.

        Transfer are unlawful if either (1)(A) or (1)(B) are true. Compliance with (2) must be precise — there is no expansive language of the form, “but not limited to.”

        (1)(A) and (1)(B) prohibit almost any transfer where any aspect of either party’s intent to engage in the transaction ever occurred at a loosely-defined “gun show event” or via non-private non-offline communications.

        Transfers between your next-door neighbor wouldn’t be covered – if you only talked about it face-to-face in private or on the phone. But almost every other conceivable non-familial transfer would be prohibited.

        1. I don’t understand the inclusion of the exemption for relatives. How many people buy guns by seeing their Dad’s GunBroker ad and being the winning bidder? I would think that the exemption for family members is just in there to make us think they “gave” us something.

          But anyway, let’s say I advertise that I have a Ruger 10/22. You see my ad and want to buy it for $150. We meet, along with my Dad, at the Waffle House parking lot. When we get there, I tell you that I decided to sell it to my Dad. I hand the rifle to Dad, who thanks me for the rifle. Then Dad says to you, “I don’t know if I want this rifle after all. Would you like to buy it from me for $150?” That would be a completely exempt sale, right? Sounds like a lot of effort and you need a cooperative Dad. The irony is that you’d need to keep a record that describes the whole thing with all the details, just to prove that you did not violate the law.

          1. It’s mostly just to explicitly protect those. Remember, if you advertised it for sale on the Internet, and your son, father, etc, decided, “Nah dad, don’t sell that gun, I’ll buy it from you.” You’d have to do it through an FFL without that in there. Really, if you ever advertised that gun for sale, you’re now obligated to sell that gun through an FFL if the person you’re selling it so isn’t one of those listed relatives.

            1. It’s basically there to appease the Fudds, as the drafters of this bill see it. I’m sure it’s Manchin’s attempt to placate hunters.

  6. In the section dealing with transfers being conducted between unlicensed individuals the following language appears:

    “the licensee shall comply with all requirements of this chapter as if the licensee were transferring the firearm from the licensee’s inventory to the unlicensed transferee”

    My question is does this mean that the FFL doing the transfer between two private parties must book the firearm in and out of his permanent bound book records? ATF may “inspect” those books at any time and, if the license is given up, the books become their possession. While this does not create a “national registry”, does it not create a de facto “distributed registry” that, at any time, another law could call into ATF possession to assemble such a registry?

    1. Yes, they want private sales on the books. They want to close the movement of firearms without paperwork first. Next, they have to come for registration since plenty of people will have bought plenty and not need anymore. It is a culture war. We have to beat this wave down, and then we have to continue our assaults through the courts.

  7. The definition you quote from Black’s law on “publication” is the definition for some very narrow legal purposes like like libel and slander – in other words, one of the requirements of suing someone for slander is they have to “publish” the slander, not just say it to you privately. It is not a relevant definition for the Manchin-Toomey amendment.

  8. Senator Toomeys’ April 10th Press release makes a blanket claim that his bill “Permits interstate handgun sales from dealers.”
    This would be great for DC residents: No more $125 transfers! And great for collectors on the road…

    BUT: I can find no such language in the bill.

    The only references seem to be to out of state dealers at gun shows. And frankly: wasn’t this already permitted?

    Looks like this bill has NOTHING for gun owners.

      1. Yes it is the part that says replace “rifle or shotgun” with “firearm”.

  9. Regarding the FOPA thing, I would not even be satisfied with “and firearm accessories” being added. The whole exception for FOPA not applying in the event of a crime needs to just be deleted, period.

    The ban states make a tremendous number of things involving firearms a crime. Additionally, they include simple possession of a firearm as a sentence enhancer which will push many simple misdemeanors over the one year mark. They will do this more once they figure out they can use sentence enhancers to void FOPA.

    “Oh, you were speeding… that was just fast enough to qualify as reckless driving… and that’s a gun in the trunk? That’s reckless driving with a deadly weapon which carries a possible sentence of 13 months. FOPA no longer applies and we’re hitting you with the full brunt of the NY SAFE ACT. Go F yourself, serf.”

    “Oh you were trying to fly with a handgun… Turns out the airport perimeter is within a school zone. You opened your locked container for the airline check in to insert the ‘unloaded’ tags and thus violated the gun free school zones act. Your FOPA is void and we will now hit you with the SAFE ACT.”

    They will enact state level laws if necessary to specifically exploit this new provision and systematically gut FOPA’s safe travel. The fact that the verbage allows simple “intent” to qualify (how do I prove I didn’t plan to inadvertantly violate, say, the Gun Free School Zones Act?) rather than actually engaging in a violent crime with a firearm is problematic.

    The fundamental problem is that the ban states hate the 2A, hate armed serfs, and hate FOPA. The language needs to be clear an ambigious, with no escape hatches, and with penalties for jurisdictions that violate it.

    Barring that, we’re better off with the current language than with the new language.

    1. The whole exception for FOPA not applying in the event of a crime needs to just be deleted, period.

      I agree. But you still need language inserted for accessories so those too overcome state law.

  10. This bill is like trying to plug the holes in Swiss Cheese by cutting out plugs from the same slice and inserting them into the holes that are already there.

    I’m calling my Congress People and telling them to just Vote NO across the board.

  11. This amendment specifically bans regulations “placing a cap on the fee licensees may charge to facilitate transfers in accordance with paragraph” (see amended 18 USC § 922(t)(4)(D)). When combined with the general prohibition on most person-to-person transfers, this amendment essentially mandates that all guns must be sold directly to FFLs.

    Remember that FFLs are to conduct transfers under this amendment in accordance with the existing provisions of federal law. This means that, to an FFL, a transfer under this amendment is indistinguishable from a dealer inventory sale. And because the dealer can charge any amount whatsoever to facilitate the transfer, they will have the power to buy guns from sellers at whatever price the dealer market will bear, because there are no other legal buyers. Individuals can still “transfer” a gun between themselves, but they will be powerless to affect the economic or legal terms of the transfer.

    California anticipated this problem when they banned private sales many years ago. In California, dealers are prohibited by law from charging more than $10.00 to conduct private transfers. So prices in California are still set by the private individual buyer and seller.

    This provision gives enormous power to federally licensed dealers. They become the one and only legal buyers of all firearms and gain cartel pricing power. Look for dealers to conduct private transfers in a manner that generates as much or more profit for the dealer as a sale directly from their inventory.

    No other outcome is economically — or legally — viable.

    1. Here in PA, where we ban private transfers on handguns, dealers will charge anywhere from 30 to 50 dollars to process them. Most of the smaller time dealers charge more like 30. Some of the larger dealers won’t process private party transfers at all.

      1. So Pennsylvania dealers have been nice. Or most people in Pennsylvania ignore the law. How long will this last when dealers nationwide realize that they are now the only legal buyers? And they have the force of the FBI, ATF and the DOJ behind them?

        This also brings up the point that there’s no requirement in this amendment for dealers to facilitate transfers — they can choose to refuse. Under California law, dealers are obligated to process private transfers as a condition of their state-issued licenses.

        1. My understanding is that the fee limit in California very definitely does lead to dealers de facto refusing to do private transfers. The fee is below market rates for that service. So, they do things like make you wait while they take care of the other 30 people in the store, or they tell you that the NICS check is running slow and to come back later, etc. Or, they don’t say anything and they let you fill everything out and then they make you just stand there forever, while they seemingly are doing nothing. I’d rather let the free market operate. If small gun shops want to charge $20 (my local pharmacy does that) so that they can get some extra money, they will. Bigger shops with customers lined up out the door anyway can charge more, and they do. I have one local shop that will do face to face transfers, but they will not do anything that involves FFL to FFL transfers because they don’t need the business and it takes too much time and effort for them. So, a shop down the street has all that business now. Another local shop is open 7 days a week and will do FTF transfers on a Sunday AM if you want. They charge about $25 for that.

          1. You obviously live in an area with a high density of federally licensed dealers. Is it so hard to imagine what life would be like if there were no FFLs within 50 miles of your home? And only five within 100 miles?

            That’s reality in large parts of California. And, yes, some dealers here violate state law by refusing to conduct private transfers. But they rarely risk enforcement because our state government is so anti-gun and is delighted to support denial of transfers.

            There is no free market when the federal government controls who (and how many) are licensed to buy or transfer guns. This is a disaster waiting to explode.

        2. What is there to stop someone from setting up an FFL just to facilitate transfers? Seems like it could be a nice little side business for someone…

          1. The federal government is there to stop someone. Bill Clinton made it effectively impossible to have that kind of side business operation.

  12. How are we as gun owners gaining anything from any gun legislation concocted in the house of congress? They’re proposing laws to rights we already have. All the rights we will ever need are already protected by the 2nd amendment of the Constitution. New laws, no matter what you may think, will only establish confusing precedence. Once you start accepting congressional established laws pertaining to the 2nd amendment, you open the door for the next party of majority to change them. Listen all you lawyers who think you know so much. Leave our rights alone. We don’t live in a democracy. We live in a Republic. With laws meant to protect the rights of the individual embedded in our bill of rights. Leave us alone, or pay the price.

    1. All the rights we will ever need are already protected by the 2nd amendment of the Constitution.

      Rights don’t mean a damned thing if the government isn’t willing to recognize and respect them. You may still have them, but they won’t be of much more than emotional comfort to you. That’s what this struggle is about; making them respect the right.

    2. If I had a dime for every gun owner who did nothing because they thought the Second Amendment was more than words on fading parchment I’d be rich. It ought to be more than words on fading parchment, that’s what the current fight is about.

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