Toomey-Manchin Amendment

[Bartholomew Roberts]

Mods, although we have a separate S.649 discussion going, I thought this should be discussed here given its key importance to that bill. I also didn't want the confusion of discussing two different UBC provisions (original S.649 and Toomey-Manchin).

The full text of the Toomey-Manchin Amendment is available here:
http://www.toomey.senate.gov/?p=press_release&id=968

I have made a first read of the entire bill and here are my first impressions:

Allows the Feds to withhold various federal funds from the states if they do not improve their submissions of records into the NICS system.

States that HIPAA does not prevent mental health records from being submitted into the NICS system (Comment: As a standalone provision, this is a huge problem. The text is vague and creates the possibility that any doctor who thinks it prudent could submit you to NICS with no oversight. If this was adopted in conjunction with S.480, I would have no problem with it.)

Sets up appeals process for veterans denied their Second Amendment rights (S.480 has better language and should replace this language IMO)

Extends background checks to gun shows (defined as 75 guns or more with an exemption for sales of a large collection at a private residence) or the curtilage of a gun show.

Extends background checks to Internet sales (Comment: this is defined incredibly broadly. Basically, if you use the Internet for any portion of the sale and they aren't one of the relatives exempted by the bill (parents, children, siblings, and spouses of same), it has to go through a background check. I see a hundred ways for people who have been buying and selling over the Internet to get in trouble. This provision reads like it was written by two old men who only use their Windows 95 machines to play solitaire.). It looks like it might also create liability for online forums like TFL who facilitate such sales - I need to research that further since it references multiple sections of federal law I am less familiar with.

Additionally, the bill contains all the "benefits" outlined by the earlier Toomey-Manchin fact sheet. Apart from the fact that I don't think the interstate travelling language is strong enough to prevent the kind of abuses New York has been perpetrating, those all seem to be fairly straightforward.

 

[Bartholomew Roberts]

OK, second read and here are my two major concerns:

SEC. 117. CLARIFICATION THAT SUBMISSION OF MENTAL HEALTH RECORDS TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM IS NOT PROHIBITED BY THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.
Information collected under section 102(c)(3) of the NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note) to assist the Attorney General in enforcing section 922(g)(4) of title 18, United States Code, shall not be subject to the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d-2 note).

This section is worse than useless. It removes all HIPAA protections for reporting mental health info NICS; but doesn't provide any standards or guidelines for what information is reportable. Can a doctor call up and report you because he thinks you shouldn't have a gun? How do you get out of the system if that happens? This is unacceptable language. My take is they should strip all the mental health language out and go with the NRA backed S.480.

"(B) A provider of an interactive computer service shall be immune from a qualified civil liability action relating to the transfer of a firearm as if the provider of an interactive computer service were a seller of a qualified product.

As defined, this forum, your ISP, are all interactive computer services. They are provided the same immunity as a qualified seller under 47 USC 7903. However, as defined in that section, if an illegal sale takes place (no background check) then that immunity disappears. So if two people buy a firearm after talking about it in TFL and do not go through a background check, TFL is potentially liable for the illegal sale - and even if not liable, they won't get the PLCA protection against being dragged into BS lawsuits. Furthermore, except for three categories relating to FFL transfer availability and fees, the Attorney General (Eric Holder lest we forget) is given free reign to set up the regulations on how this law will actually be implemented.

 

[Bartholomew Roberts]

Another huge concern - even if the buyer has a CHL (or both the buyer and seller have a CHL), you must still sell through an FFL dealer. What possible purpose could there be in making two people who have already undergone an extensive background check and who are exempted from the NICS check go to an FFL to conduct their sale?

"(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-

"(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;

 

[mayosligo]

Another huge concern - even if the buyer has a CHL (or both the buyer and seller have a CHL), you must still sell through an FFL dealer. What possible purpose could there be in making two people who have already undergone an extensive background check and who are exempted from the NICS check go to an FFL to conduct their sale?

Simply put - control or hindrances that will eventually dissuade.

 

[TailGator]

Thank you for lending your expertise to help us understand this bill.

One thing that crossed my mind: Is the language so broad that even an exchange of emails between buyer and seller constitute an internet sale?

Also, perhaps a minor point, but the Florida CWP is good for seven years, so in the last two years before renewal, we would be subject to background checks without being even eligible for renewal of our CWP.

I have mixed feelings about mental health data being in the data base. I am not sure that a complete absence of mental health data is wise, and yet random and biased observations do not belong there, either. Standards for submissions of specific findings, with a provision for easy and rapid appeals of adverse entries, would seem to be ideal, but I am not sure that it is achievable.

 

[JimDandy]

I think it depends on the language for what mental health data is eligible to be shared. Remember the standard is still Adjudicated Mentally Deficient to preserve Due Process. Thus Healthcare orgs by themselves should not be sharing information at all except at a hearing to establish Adjudicated Mentally Deficient -> who then shares the results (if necessary) with NICS.

 

[Randy-Fl-01]

This is bad

There are enumerated “exceptions” to the private transfer background check requirement in this proposed law … maybe I’m reading this wrong – but maybe not! Read (i) below … it seems the private transfer exception to non-family members is ONLY allowed if the USAG – Holder certifies the state has laws that are equivalent to this “section” :

“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”

What do they mean by this “section”? Do they mean this new law requiring private sale background checks or ??? I’m sure Holder will go out of his way to help gun owners – duh!

Here’s the ONLY listed exceptions to the background check:

(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-

(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and

(ii) the transfer was conducted in compliance with the laws of the State;

(C) the transfer is made between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins, if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law; or

(D) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986.

Please tell me what this means!

 

[Armorer-at-Law]

Sets up appeals process for veterans denied their Second Amendment rights

I'm all for this, but why give different treatment to veterans vs. non-veterans. Both (all) deserve due process.

 

[Bartholomew Roberts]

One thing that crossed my mind: Is the language so broad that even an exchange of emails between buyer and seller constitute an internet sale?

Yes, I would say so. It would be difficult to say with certainty because the Attorney General is given broad power to issue regulations to enforce the bill. So, theoretically, Eric Holder might exempt that; but looking at the language it seems clear that if there is any element of an offer to sell or buy made online OR through a publication, you need a background check.

 

[Evan Thomas]

I don't see much that's troubling in the mental health provisions of the amendment. There's nothing there that changes who is defined as a prohibited person: someone "who has been adjudicated as a mental defective or has been committed to any mental institution." Given that standard, improving mental health reporting seems a good thing. And I don't read it as a blanket permission for mental health professionals to report people directly to NICS, but rather to clarify that privacy concerns don't trump the reporting requirements already in place at the state level.

The National Conference of State Legislatures' website has a handy table summarizing those reporting requirements for all 50 states.

However, I do have reservations about the part that deals with veterans:

Sets up appeals process for veterans denied their Second Amendment rights

I'm all for this, but why give different treatment to veterans vs. non-veterans. Both (all) deserve due process.

Yes, they do. And I read that part of the amendment a bit differently from the way BR does: the effect of codifying an appeals process for veterans is to legitimize the current system, under which, as I understand it, an in-house (VA) board can make the initial "adjudication."

I fail to see why veterans should face a greater burden than non-veterans in this regard: rather than having to appeal to a court after the fact, veterans should, like everyone else, be entitled to have a court do the adjudicating in the first place.

 

[Bartholomew Roberts]

There are enumerated “exceptions” to the private transfer background check requirement in this proposed law … maybe I’m reading this wrong – but maybe not! Read (i) below … it seems the private transfer exception to non-family members is ONLY allowed if the USAG – Holder certifies the state has laws that are equivalent to this “section” :

If the sale was the result of an ad or offer to sale on the Internet or in a publication then there is no face-to-face exemption for intrastate sales.

Basically, if we are talking face to face and you say "Hey, I'll buy that from you for $1000." That sale can happen without a background check intrastate.

If you live down the street from me and post a picture on TFL and I reply with "Wow! That is great, I'll give you $1000 for that." That would require a background check.

 

[Randy-Fl-01]

All non-family transfers reuire backgound check?

To my reading ALL non-family (as enumerated) private sales will require a background check! Check out (i) below...



Here’s the ONLY listed exceptions to the background check:

(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-

(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and

(ii) the transfer was conducted in compliance with the laws of the State;

(C) the transfer is made between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins, if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law; or

(D) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986.


Looks like your state will have to have laws "generally equivalent" to "this section" - huh? What does this mean???

 

[Bartholomew Roberts]

I don't see much that's troubling in the mental health provisions of the amendment. There's nothing there that changes who is defined as a prohibited person: someone "who has been adjudicated as a mental defective or has been committed to any mental institution." Given that standard, improving mental health reporting seems a good thing. And I don't read it as a blanket permission for mental health professionals to report people directly to NICS, but rather to clarify that privacy concerns don't trump the reporting requirements already in place at the state level.

My concern is that as written, the language is broad and subject to interpretation. Since there is already better and more precise language in S.480 that is more specific, I don't see the point in accepting this one.

S.480 deal with the veteran's issue better too. Instead of making veterans appeal their denial, it says that you cannot add someone to NICS for mental health issues unless you:

1. Were found to be a danger to yourself or others
2. Adjudicated at a hearing where you were afforded due process and allowed an opportunity for counsel
3. You were involuntarily committed (not for temporary observation).

Sadly, there are parts of the country where all three of those requirements are not necessary for you to lose your Second Amendment rights.

 

[Bartholomew Roberts]

To my reading ALL non-family (as enumerated) private sales will require a background check! Check out (i) below...

You have to remember that the bill only covers "gun shows" and "online sales" as defined in the bill. So unless you fall under the definition of gun show or online sale as described in the bill, the issue of exemptions isn't relevant. However, the "online sales and publications" part is very broad, so it would likely catch a lot of private sales.

 

[Randy-Fl-01]

Only covers gun shows and online sales?

I must have missed how this bill only applies to gun shows / events / online sales. Please direct me to that section. Thank you.


"You have to remember that the bill only covers "gun shows" and "online sales" as defined in the bill. So unless you fall under the definition of gun show or online sale as described in the bill, the issue of exemptions isn't relevant."

 

[Bartholomew Roberts]

Here is the text from Section 122 of the bill:

"(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....

 

[carguychris]

Basically, if we are talking face to face and you say "Hey, I'll buy that from you for $1000." That sale can happen without a background check intrastate.

But... how would the potential buyer know you were offering a firearm for sale unless some sort of written notice had been posted somewhere?

I believe that this legislation could essentially result in the end of all lawful non-family FTF sales if the regulatory definition of "publication" is broad enough. I do NOT find this reassuring.

 

[Randy-Fl-01]

I think you missed it

Your quote: "(1) Beginning on the date that is 180 days after the date of enactment of this subsection and except as provided in paragraph (2), ....


Here's paragraph (2) where it says (1) - your quote from above, shall not apply if

"(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 5812 of the Internal Revenue Code of 1986.

To me it reads that paragraph (1) covers gun shows et al, but a different standard is applied to other private transfers (2) and here's where it gets murky .... section (B)(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;" ... the way I read it if you are selling at a gun show / event / online section (1) applies - all other private sale are governed by section (2) ...

 

[speedrrracer]

Another huge concern - even if the buyer has a CHL (or both the buyer and seller have a CHL), you must still sell through an FFL dealer. What possible purpose could there be in making two people who have already undergone an extensive background check and who are exempted from the NICS check go to an FFL to conduct their sale?

Not gonna give details (I'm sure all of us on this forum don't need them)...I think we all can see this is wide open to being overturned in court.

 

[Bartholomew Roberts]

Paragraph 1 describes where the requirement for a background check applies (Gun shows and internet/publication)

Paragraph 2 describes when sales that are online/publication or at a gun show are exempt from background checks.

The bill doesn't attempt to regulate any other private transfers.