Year: 2013

We suspected from media rumors that there was going to be an, “In the event of gun control, break glass,” strategy from the stronger Republicans. Unfortunately, the Toomey-Manchin deal has given real legs to this issue once again, and given murmurs from the House, including my own Congressman (not surprised), I don’t feel particularly good about the House. Getting a “true conservative” like Toomey on board with the deal, unfortunately, makes a lot of critters think “Well, if Toomey is on board, it must be OK!”

And so Senator Tom Coburn floats an alternative that I think would be far preferable, if I’m going to be required to pick my poison:

Dr. Coburn’s amendment would require a NICS check or validation permit to be presented for non-FFL transfers, exempting family transfers, estate/will transfers, and all temporary transfers.

The requirement can be satisfied in one of four ways:

1) An FFL takes custody ofthe firearm in order to perform a background check on the transferee as mandated in Schumer original and Manchin-Toomey

2) Presentation oftemporary 30 day permit created by running a self-NICS check through a new consumer portal(details below)

3) Usage of a concealed carry permit or any other state issued permit that requires a NICS check to be conducted to obtain

4) Any other alternative that a state comes up with to satisfy the validation requirements for secondary and private market transfers. The amendment also includes a provision that places penalties on ATF agents that abuse records during audits, an IG report on the FBI’s 24 hour destruction rule compliance, a prohibition on records, a prohibition on centralizing records pertaining to gun ownership and a provision that allows states to assume primacy of enforcement of the background check law.

Consumer Portal

• FBI shall provide a consumer portal through its website, mobile application, or other applicable medium to allow a potential transferee to run a NICS check on his/herself
• A successful background check will provide potential transferee with a temporary 30 day permit that validates he/she is not prohibited from legally purchasing or possessing a firearm
• The temporary permit can be used by the transferee for any private transfers in compliance with state or federal law during the 30 day time window
• The permit will be made available to the transferee as an electronic printable document, via a mobile application or other appropriate means
• The 30 day permit will provide the name, date of expiration of permit, and a unique pin number that can be used to verify activation by transferor
• The consumer portal will be designed with privacy protections so that only a prospective transferee can run his/her own NICS check
• The documentation provided by consumer portal will utilize necessary fraud protections
• A valid 30 day permit provided by the consumer portal that is verified with a valid governmentissued photo identification would suit the law’s requirements
• Information provided by prospective transferee to conduct background check through the consumer portal must be destroyed within 24-hours as occurs for FFL conducted background checks

The new law will not go into effect until the consumer portal is up and running, and the law will be nullified if the consumer portal is permanently shut down or defunded.

Screw going through an FFL being an alternative though. The alternative should be that FFLs can issue a validation to a prospective buyer, to facilitate a private sale for someone who doesn’t want to use the portal. Also, this all has to be with the FBI. ATF can’t have anything to do with this portal. In fact, I’d be happier with an independent agency, separate from the DOJ, running NICS.

The concern here is that the requirement that records not be kept by the FBI from the check are worth about as much as Cypriot deposit insurance. There needs to be independent, and regular auditing. While in this scheme, the seller presumably would keep the buyer’s certificate, there can’t be any requirement to do so. The enforcement mechanism for this is that if you sell to someone prohibited, obviously you didn’t run the check, and also the fact that most gun owners, to the utter shock of anti-gun folks everywhere, really don’t want to sell guns to criminals. Also, do we still get some things in return for the Coburn proposal? That would be a necessary component.

Again folks, what our options are depends on how people are communicating with lawmakers. If everyone who was lining up at gun shows at the start of all this were calling lawmakers, we would not be here. We worked a gun show to get people to contact, and the number of people who wouldn’t, because they just didn’t think it mattered, was very discouraging. Don’t be those people. Also, just be emphatic that you expect them to vote against all gun control measures, and that yes, background checks are gun control, no matter what Senator Toomey says. You wouldn’t accept background checks for Internet access (to make sure you’re not, say, a child porn convict). Firearms rights should not be any different.

See here, via Instapundit. Looks like how I’d expect this to go down. By the time they actually hold a vote, everything you see is pretty much pre-arranged kabuki theater. Call your Senators.

I just got an e-mail from these folks. They claim for three dollars they’ll send a letter to the White House for you. My charitable opinion is these folks are dishonestly trying to cash in on people’s concerns about gun control. My less charitable opinion is that this is a total scam. It would not surprise me if they are not even based in the US, given that the e-mail came from a gmail account. I would not have anything to do with them, and if you see people promoting this, please help spread the word. I normally would ignore stuff like this, but with people on edge, it’s opens the community up to being taken advantage of.

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.