Open Carry Counter Rally For Gun Rights

[JimDandy]

Accordingly, if a comparison between bound books and invoices, inventories, bank records, etc., shows $$ coming in and inventory going out after the effective date of NICS, witout the appropriate notations somewhere, then the prosecuting authority may well be able to prove his case.

As you pointed out earlier, the government has to prove all elements of the crime. How do they prove the income wasn't from paraphernalia and accessories like jags, cleaning fluids, cutesy signs and labor/services like lane rentals at the attached shooting range? That's assuming the income is reported at all to create this discrepancy.

So? Sure there will be a lag time. IMHO, that lag time will be = forever.

In some cases, sure. There will be firearms handed down through inheritance that may or may not be on the books even now. And this hypothetical UBC law may not require it even then- Using the last one as an example it doesn't appear it would have as there was an exemption for estate transfers.

Decades of making law-abiding citizens drive to their local FFL, pay a fee, and have the BC done, during which the feds still won't be able to prosecute anyone for failing to do so without registration,

That is incorrect. They will most certainly be able to prosecute anyone for failing to get a UBC for any firearm already with a post UBC paper trail. Any firearm manufactured or initially sold after the date is automatically covered -they'll find a 4473 at the initial point of sale after the date. Any firearm transferred after the date could be covered- If they can trace it through bound books to any point after the enactment date- any transfer without a 4473 afterwards is then illegal (or still trackable through the limited familial relation exemptions again using the recently proposed bill as a roadmap of what exemptions would be in this hypothetical world).

As I understand it, the tracing program works now in this way- Law Enforcement starts with a firearm. They go to the manufacturer with the serial number, to the distributor, to the FFL, for the 4473. They then (assuming there was a 4473) go to that purchaser and ask where it is. This person may, or may not have a bill of sale leading to another name that may or may not be real or otherwise and so on down the line until the chain is broken by someone who doesn't have a bill of sale or claims loss/theft. Anyone who is on this 4473 form after the enactment date has to either point to another FFL and another 4473 form, or claim loss/theft, which right or wrong will lead to

Once the gov't gets to digging around on one offense, it may lead to proof of others.

and still won't be able to prosecute felons for failing to do so under any circumstances.

Wait, why is this? I'm sure it takes a veritable ton of legal machinations to allow a felon to own, but not possess a firearm at least long enough to legally dispose of the firearm. What I'm not following is the train of logical thought that such a felon would not be required to use an FFL to process this transfer of title like anyone else. To the best of my knowledge, a felon isn't required to register assault weapon in some locations because of fifth amendment issues, but I've never seen that taken to mean they no longer have to undergo background checks to legally purchase a firearm (which I know, except for exceedingly rare situations as to be virtually non-existent they can't do). What I'm saying, and not very well I think is: Why does their immunity from this assault weapon registry imply some immunity from getting a background check, on someone else no less, to legally transfer title on a firearm they currently hold title to (or at least most of it given the bundle of sticks you explained earlier)?

tell me how a prosecutor will prove that a FTF transaction in the absence of registration

They'll prove it in any case they can. Firearms made or with a 4473 paper trail existing after enactment date. The same way they proved post-ban Large Capacity Ammunition Feeding Devices. When they can't, I'm comfortable with that too. Better ten guilty go free than one innocent man suffer.

Is it really fair to force private citizens to go through a background check in order to transfer their private, lawfully-acquired property, when felons cannot be forced to do so

I've already answered this in a way, but again, why aren't they forced to drive to an FFL with their agent who is able to possess their lawfully acquired property while they LEGALLY sell the title rights to someone else?

In order to keep this apples and apples, I'm assuming you're talking about a legal transaction in both cases, not a black market sale that would be illegal in at least one case.

Edit to add:

pay a fee

Part of what I suggested included removing the fee. I personally believe that since the background check is mandated by the government, and uses government data/resources involving a government employee and/or contractor, that the FFL, while conducting the background check is acting as the government for that service, and as such shouldn't be allowed to charge for it. As they're also a private entity, they shouldn't be required to do it for free either, and should get a fixed compensation for these activities.

 

[Tom Servo]

As I understand it, the tracing program works now in this way- Law Enforcement starts with a firearm. They go to the manufacturer with the serial number, to the distributor, to the FFL, for the 4473. They then (assuming there was a 4473) go to that purchaser and ask where it is.

That's how it's supposed to work. In reality, it assumes that the manufacturer and retailer's records are straight. (If the retailer has since gone out of business, the records are in a warehouse in West Virginia and are not catalogued in any way.) It also assumes that the buyer still lives at the same address as he did when the 4473 was conducted.

It also assumes the gun was made and sold after the UBC law went into effect. There are hundreds of millions of guns in circulation that weren't.

Exactly what problem is it you think UBC's are going to fix? You want such a law, prove that it will be a solution to a specific problem.

 

[JimDandy]

You want such a law, prove that it will be a solution to a specific problem.

Technically I don't want such a law, I just believe it can work without registration. I don't NOT want such a law either. I believe it will do some good, but not nearly so much as a lot of people think. With that said:

Exactly what problem is it you think UBC's are going to fix?

I believe it would result in a large (relative to a small sample size) reduction in the number of firearms unwittingly sold by law abiding owners to prohibited possessors, and an unknown sized (relative to an even smaller sample size) but still minor reduction in the number of firearms sold by currently lawful owners who don't care enough, if at all, if the buyer is a prohibited possessor.

the buyer still lives at the same address as he did when the 4473 was conducted.

Or at least an address that can tracked using other resources. If I can people search someone for fifteen bucks on the internet, I assume the government, with access to tax, census, and more/other records can do an even better job.

There are hundreds of millions of guns in circulation that weren't.

Are you suggesting those hundreds of millions of firearms not all of which are in private non-FFL hands (Pawn Shops, Cabelas, Bass Pro, every Mom and Pop everywhere that sells new and/or used guns) would never be legally resold- or pawned- after this UBC law goes into effect and create the first part of it's post UBC paper trail?

 

[Tom Servo]

I believe it would result in a large (relative to a small sample size) reduction in the number of firearms unwittingly sold by law abiding owners to prohibited possessors, and an unknown sized (relative to an even smaller sample size) but still minor reduction in the number of firearms sold by currently lawful owners who don't care enough, if at all, if the buyer is a prohibited possessor

OK, how many times does that actually happen? Do you have a figure?

Are you suggesting those hundreds of millions of firearms not all of which are in private non-FFL hands would never be legally resold- or pawned- after this UBC law goes into effect and create the first part of it's post UBC paper trail?

No, but how would we know? Without registration of all pre-UBC firearms, law enforcement would have no way of knowing whether I got a gun from you prior to the passage of the law. A regulation without an enforcement framework isn't much good.

Officer Friendly: Hi Tom! Nice gun there. Didja get a background check for it?
Me: Ummmm...sure?
<Long awkward pause>
Officer Friendly: Well...OK. Have a nice day.

Or, what happens if a pre-UBC gun gets used in a shooting? Proponents of such measures aren't going to let that stand.

 

[JimDandy]

OK, how many times does that actually happen? Do you have a figure?

According to Bureau of Justice some portion of

to 467,300 victimizations in 2011

plus about 30,000 fatal incidents, which the says about 11,000 were homicides. (I'm assuming we can discount suicides in a gun control discussion as no gun law will prevent suicide in someone that determined)

Table 14 (on page 13) of the sources of crime guns suggest it can be ballparked at around 91.1% (9.9% were able to buy from definite FFLs) of 24.8% (1.4% Flea Market and Gun shows, 12.2 purchase from friends and family, 11.2% Other) of (467,300 + 11,101) or 108,084 crime victimizations worth.

Edit to Add: By the way, you guys are the mods, so I'll defer to your judgement, but are we hijacking this thread, necessitating this tangent be split off? Or is the original point moot, making this acceptable?

 

[Spats McGee]

JimDandy, I would have responded sooner, but I got stuck in court for a few extra hours today. It was an absolute zoo.

So? Sure there will be a lag time. IMHO, that lag time will be = forever. At a minimum, decades. Decades of making law-abiding citizens drive to their local FFL, pay a fee, and have the BC done, during which the feds still won't be able to prosecute anyone for failing to do so without registration, . . .

That is incorrect. They will most certainly be able to prosecute anyone for failing to get a UBC for any firearm already with a post UBC paper trail. Any firearm manufactured or initially sold after the date is automatically covered -they'll find a 4473 at the initial point of sale after the date. Any firearm transferred after the date could be covered- If they can trace it through bound books to any point after the enactment date- any transfer without a 4473 afterwards is then illegal (or still trackable through the limited familial relation exemptions again using the recently proposed bill as a roadmap of what exemptions would be in this hypothetical world).

I will concede that any firearm with a manufacture date or initial 4473 date won't be too hard to track. However, in trying to prosecute any firearm that has already left the initial selling FFL via 4473 prior to the effective date, there will be almost no way to prosecute a non-UBC transfer. To use something similar to Tom's example:
Officer: Hi, Spats. Nice gun.
Me: Thanks.
Officer: Did you get a UBC?
Me: Didn't have to. Bought it years ago.
Officer: Got a receipt?
Me: Nope.
Officer: Who'd you get it from?
Me: Dunno.

OR:

Officer: Hi, Spats. Nice gun.
Me: Thanks.
Officer: Did you get a UBC?
Me: Didn't have to. Bought it years ago. Am I free to leave? . . .

So let's look at one of your assertions about the tracking system:

Any firearm transferred after the date could be covered- If they can trace it through bound books to any point after the enactment date- any transfer without a 4473 afterwards is then illegal (or still trackable through the limited familial relation exemptions again using the recently proposed bill as a roadmap of what exemptions would be in this hypothetical world).

I don't know about your neck of the woods, but I've never known anybody to use an FFL for a private FTF to make a transfer between two residents of this state. Ever. So I don't have high hopes of LE being able to track firearms past that first sale, much less that they'll be able to establish a 4473 link after the effective date of a UBC law.

But let's play this out. Let's assume that LE successfully tracks a firearm from the first FFL to the buyer, the buyer says he pawned the gun at XYZ Pawn Shop, which has an FFL. The UBC is then enacted. Pawn Shop sells gun to Deceptive Dan, who sells it to his buddy, Slippery Stan. Stan is not prohibited (just to take that out of the equation), but he gets pulled over for DWI. An inventory search of the car turns up the firearm. Now Stan has a problem. But how to prove that Dan transferred the firearm to Stan w/o a UBC? Either Stan or Dan will have to testify against the other guy, and against themselves to prove it. If there's an exemption for loans "for sporting or evaluation purposes," the prosecutor will have to prove that it wasn't a loaner. Or will I have to do a UBC on my bestest buddy just to let him look at my gun while standing in my living room? (There were some troubling aspects about that in the last UBC bill.) That's a whole lot of time and resources spent tracking down two guys, neither of whom was prohibited from possessing the firearm in the first place. And let's not forget that if either one of them was prohibited, it's already illegal for them to possess the firearm.

Perhaps it would have been more accurate of me to say it as follows: The percentage of possibly successful prosecutions of a UBC law are so infinitesimally small as to make the law virtually unenforceable. That being the case, when UBCs fail to reduce crimes, the next "logical" step on the part of the antigun crowd will be to "strengthen" the UBC law, which will require registration. Let's not forget, even the DOJ admits that UBCs won't work without registration.

and still won't be able to prosecute felons for failing to do so under any circumstances.

Wait, why is this? I'm sure it takes a veritable ton of legal machinations to allow a felon to own, but not possess a firearm at least long enough to legally dispose of the firearm. What I'm not following is the train of logical thought that such a felon would not be required to use an FFL to process this transfer of title like anyone else. To the best of my knowledge, a felon isn't required to register assault weapon in some locations because of fifth amendment issues, but I've never seen that taken to mean they no longer have to undergo background checks to legally purchase a firearm (which I know, except for exceedingly rare situations as to be virtually non-existent they can't do). What I'm saying, and not very well I think is: Why does their immunity from this assault weapon registry imply some immunity from getting a background check, on someone else no less, to legally transfer title on a firearm they currently hold title to (or at least most of it given the bundle of sticks you explained earlier)?

Go pull Haynes v. U.S. (1968) and give it a quick read. Haynes was a convicted felon, caught in possession of a handgun in TX. He was charged with: (1) being a felon in possession; and (2) failing to register a handgun. SCOTUS overtuned the failure to register charge, stating that forcing him to register a handgun implicated his A5 right against self-incrimination, as it forced him to admit to committing the crime of possession.

We must now consider whether, as petitioner contends, satisfaction of his obligation to register would have compelled him to provide information incriminating to himself. . . . .

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851.

In other words, because Haynes was prohibited from possessing the firearm to begin with, the gov't cannot force him to register the firearm which he (illegally) possesses. IMNSHLO, convicted felons will be similarly immune from prosecution for failing to use a UBC when transferring a weapon, either to or from their possession, as it would require them, under penalty of law, to admit to committing the crime of possession.

Or at least an address that can tracked using other resources. If I can people search someone for fifteen bucks on the internet, I assume the government, with access to tax, census, and more/other records can do an even better job.

You have more confidence than I, JimDandy.

pay a fee
Part of what I suggested included removing the fee. I personally believe that since the background check is mandated by the government, and uses government data/resources involving a government employee and/or contractor, that the FFL, while conducting the background check is acting as the government for that service, and as such shouldn't be allowed to charge for it. As they're also a private entity, they shouldn't be required to do it for free either, and should get a fixed compensation for these activities.

IOW, now you want me to pay more taxes, so that I can drive to an FFL and pay for a "mandated service" with which I want nothing to do. If the number of NICS checks increases greatly, the number of NICS employees and resources will have to increase greatly, as well. The cost of those things will have to be paid for with taxes from somewhere.

 

[JimDandy]

IMNSHLO, convicted felons will be similarly immune from prosecution for failing to use a UBC when transferring a weapon, either to or from their possession, as it would require them, under penalty of law, to admit to committing the crime of possession

You know the law better than I do, but Frank just went over this pretty well a couple to a few months ago- are they immune to the 4473 requirements at a retail POS? (Assuming this has ever come up in some wildly rare state vs federal dual sovereignty mash-up)

I'm not so sure. When the FFL takes a firearm into their bound book, I've been told they have to do some sort of book keeping for the source, but none of this includes recording whether the seller actually possessed the firearm.

As far as I know it's not illegal for a prohibited person to sell a firearm. From previous discussions I'm under the impression prohibited possessors with a collection that isn't seized as contraband have some recourse for disposing of their collection through an agent. Do I have this incorrect?

If so, a prohibited possessor can sell a firearm as long as they don't possess it, and as this isn't a crime I don't see a lot of 5A issues? Can you claim the 5A privilege if what you did wasn't a crime?

If the prohibited possessor isn't the buyer but instead the seller I REALLY can't see how they're able to claim someone else's 5A protections, they're not even ON the 4473 form.

Either Stan or Dan will have to testify against the other guy, and against themselves to prove it.

Well, Dan has no reason not to testify beyond loyalty to Stan and whatever plea deal is available on the DWI so it's up to the prosecutor's discretion on which is the bigger crime I suppose. The penalty is strictly on Stan. At least my understanding of this is so, there may be some other combination of federal laws to backdoor this but it's my understanding it's not illegal to buy from an FFL without a background check, it's illegal for the FFL to sell to you without a background check.

Sort of the opposite of it's not illegal to sell to someone you don't have a reason to believe can't buy, but it is illegal for someone who can't to buy. As far as I know that sort of jeopardy only flows in the one direction in any given transaction unless there are multiple infractions (ie prohibited possessor AND FFL without NICS check)

To use something similar to Tom's example:

Which of these three examples rise to the same level of investigation you gave the government credit for when discussing Bound Books and so on here:

There's also insurance fraud, and who knows what else. Once the gov't gets to digging around on one offense, it may lead to proof of others.

You have more confidence than I, JimDandy.

Really, you think with a name, birthday, and most likely a social security number (either from the form itself or a call to whatever records department can cross reference name, place of birth and date of birth to find it), the government can't find most of us in this day and age?

IOW, now you want me to pay more taxes, so that I can drive to an FFL and pay for a "mandated service" with which I want nothing to do.

Yup! The same way I want you to pay more taxes for any other government program you may want to have nothing to do with but provides a valuable service- Elections, City Attorney's Offices, and the like.

Edit to Add a couple more points

1) I just remembered- Frank's main point as I remember it was the government doesn't force you buy a firearm, so they don't force you to fill out a 4473 form which is why it's not self incrimination. I never did get why it was different for registering the firearm they still don't force you to buy, but he's got the JD.

2) In all these scenarios offered up by you and Tom, how many of these do you think would result in an actual gun trace? I don't think even the DWI would result in a gun trace. Would they even check if it or anything else in the car was (reported) stolen?

 

[Spats McGee]

You know the law better than I do, but Frank just went over this pretty well a couple to a few months ago- are they immune to the 4473 requirements at a retail POS? (Assuming this has ever come up in some wildly rare state vs federal dual sovereignty mash-up)

No, they're not immune to the 4473 at a retail sale. At that point, the felon doesn't possess (actually, own) the firearm, either. It's when the seller is a felon that I think the A5 will kick in and protect him. And I hadn't actually thought about the fact that the seller isn't on the 4473, but if UBCs become law, I'll bet they will be added.

If so, a prohibited possessor can sell a firearm as long as they don't possess it, and as this isn't a crime I don't see a lot of 5A issues? Can you claim the 5A privilege if what you did wasn't a crime?

If the prohibited possessor isn't the buyer but instead the seller I REALLY can't see how they're able to claim someone else's 5A protections, they're not even ON the 4473 form.

The prohibited owner can sell a firearm, but he cannot possess a firearm. No, you can't claim someone else's A5 protections, but IIRC, the UBC bills made it illegal to buy or sell firearms w/o a BG check. You really think they'll keep the seller off of the 4473 for very long if it passes?

I don't have any numbers on this, but I suspect the number of technically-prohibited-persons-who-go-sell-their-guns is pretty low.

Well, Dan has no reason not to testify beyond loyalty to Stan and whatever plea deal is available on the DWI so it's up to the prosecutor's discretion on which is the bigger crime I suppose. The penalty is strictly on Stan.

I thought I recalled that UBCs made it a crime to buy or sell a gun w/o a BG check. If so, Dan may have an A5 right that he would be wise to use.

Really, you think with a name, birthday, and most likely a social security number (either from the form itself or a call to whatever records department can cross reference name, place of birth and date of birth to find it), the government can't find most of us in this day and age?

When I commented on the gov't "doing a better job," I was referring to much more than finding us.

Yup! The same way I want you to pay more taxes for any other government program you may want to have nothing to do with but provides a valuable service- Elections, City Attorney's Offices, and the like.

Those things, while distatesful, do provide a valuable service. . . especially City Attorney's Offices. Those are critical to the proper functioning of gov't.

UBCs, though? Neither useful nor desirable. Just a first step towards registration, IMHO.

ETA: At this point, this one has wandered so far from the OP that I think it's time to close it. I have to admit to my own culpability in allowing it to do so, and apologize accordingly. JD, I'll be happy to continue discussing this with you in another thread.