Universal background checks

[Spats McGee]

I have always understood the gunshow "loophole" to mean that someone could go to one of these shows and buy a gun from a private party without having to do a background check. I can't say that I've been in many conversations where someone explained what their understanding of the "loophole" is, but I suppose some could think it means that anyone can show up and buy a gun from anyone else there without the check, dealers included. I guess I will have to include this as part of the discussion the next time I'm talking guns with a non gun owner.

I've had a number of these discussions over the years, and several on FB in the last few years. Of those people I've discussed it with (still a statistically insignificant number), there have basically been two camps: (1) Folks who know nothing about guns and like it that way. They believe that there's a gun show loophole and that it's bad, but don't want to even consider guns long enough to determine how one might work. And (2) Folks who believe that nobody does a background check at gun shows, like some blanket exemption from background checks.

I'm in favor of UBC, but I can't see how it can be done without changing the procedure entirely. . . . .

I think it would make more sense to create a national gun permit. . . . .

Gonna have to disagree on all counts here. I'm unwilling to do either, and certainly not before a proponent of those ideas figures out how to get around the Fifth Amendment, the Eighth Amendment, and Haynes. Felons first, I like to say.

 

[Spats McGee]

. . . .I still disagree that there is a not a distinction between a gun show and an individual private sale held in someones garage / basement / whatever. I think it disingenuous to ignore the distinction even if ultimately that distinction does not make a difference in our argument.

Now the argument seems to be, likely correct, that said distinction does not make a difference to the issue. . . . .

It's disingenuous of me to ignore a distinction (private sales in the garage vs. private sales at gun shows) that I believe to be a false distinction? It's disingenuous of me to argue that there is no loophole when, in fact, the federal law at issue makes no such distinction?

The distinction that you've been drawing appears to be based on the volume of guns available for purchase in one place. Is that correct? If so, why should that make a difference? Having the transaction take place at a gun show makes no difference in terms of the parties involved.

Let's take an example: I have a buddy. We'll call him Fred. Fred and I both live in Arkansas, and we're private (non-FFL) parties. I have a pistol that Fred really likes, and I need some cash. I go off to the gun show, and I happen to bump into Fred. Fred notices that I have my pistol for sale. Fred wants to buy it, and offers me a very fair price for it. As the law stands now, he and I can make the deal, right there at the gun show, no FFL required. I could have called him and told him I was selling and pistol. He could have come to my house to buy my pistol. Why should the gun show be any different than if we made the sale in my living room? Because there are more guns around? And if we "close the gun show loophole" and require background checks at all gun shows, all Fred and I have to do is go outside.

 

[Lohman446]

I have a pistol that Fred really likes, and I need some cash. I go off to the gun show, and I happen to bump into Fred. Fred notices that I have my pistol for sale. Fred wants to buy it, and offers me a very fair price for it. As the law stands now, he and I can make the deal, right there at the gun show, no FFL required. I could have called him and told him I was selling and pistol. He could have come to my house to buy my pistol. Why should the gun show be any different than if we made the sale in my living room?

I'm not certain that the gun show should be different than a sale made in your living room or at some garage sale or at another "private" location. I get the argument. Regardless of location we are discussing a private sale of private property between private individuals. I like the argument. I'm actually not attempting to make an argument against it. I'm curious why no one seems inclined to take the argument one step further and note that even FFL registered dealers are selling private property but that is an entirely different tangent.

While the distinction may not make a difference to the argument I still think there is something different about a gun show in it is open to the general public (I get your garage sale is too) AND represents a "large" number of sellers. I should note even I think the Colorado example noted above that this number is 3 is ridiculous. No I don't know what the number is.

I think somewhere this distinction may give rise to an argument that the distinction is important. I am not certain I am willing to make that argument because I'm having a hard time articulating why that distinction is important and the more time I attempt to articulate it the more I wonder why a FFL (specifically privately owned) selling privately owned property should be different than an individual selling privately owned property.

 

[Spats McGee]

I'm not certain that the gun show should be different than a sale made in your living room or at some garage sale or at another "private" location. I get the argument. Regardless of location we are discussing a private sale of private property between private individuals. I like the argument. I'm actually not attempting to make an argument against it. I'm curious why no one seems inclined to take the argument one step further and note that even FFL registered dealers are selling private property but that is an entirely different tangent.

Perhaps because people engaged in the business of buying and selling firearms are much more clearly involved in interstate commerce, which may be regulated by the federal gov't.

. . . .I think somewhere this distinction may give rise to an argument that the distinction is important. I am not certain I am willing to make that argument because I'm having a hard time articulating why that distinction is important and the more time I attempt to articulate it the more I wonder why a FFL (specifically privately owned) selling privately owned property should be different than an individual selling privately owned property.

The antigunners have been making the gun show argument for years and years. I'm perfectly willing to hold their feet to the fire and make them tell me what's different about a gun show. If you, who know much more about gun laws than most antigunners, are having such a hard time defining the distinction, then I would suggest that you should, too.

 

[Lohman446]

Perhaps because people engaged in the business of buying and selling firearms are much more clearly involved in interstate commerce, which may be regulated by the federal gov't.

Hasn't the federal overreach of the interstate commerce clause become so drastic as to make this distinction as muddy as the distinction between a gun show and not? Correct me if I am wrong but if I go into my backyard and using nothing but the materials I find on my own property to mine ore and build a silencer I am in violation of federal law that is upheld through the commerce clause because I have impacted, in theory, interstate commerce. OK I am parroting an argument someone else has used in the past - this cannot be true right?

Edit and to an aside: what about a voluntary background check system? A "green light" indemnifies the seller from all civil and criminal liability related to the sale of a firearm.

 

[Spats McGee]

Hasn't the federal overreach of the interstate commerce clause become so drastic as to make this distinction as muddy as the distinction between a gun show and not? Correct me if I am wrong but if I go into my backyard and using nothing but the materials I find on my own property to mine ore and build a silencer I am in violation of federal law that is upheld through the commerce clause because I have impacted, in theory, interstate commerce. OK I am parroting an argument someone else has used in the past - this cannot be true right?

The question of federal overreach is something of a different question, though related. Still, I'm going to pass on that one for the moment in the interest of keeping this thread on track.

Edit and to an aside: what about a voluntary background check system? A "green light" indemnifies the seller from all civil and criminal liability related to the sale of a firearm.

There's already a voluntary BGC system. Transfer through an FFL.

 

[riffraff]

Personally I don't give a damn what they do at "gun shows" - if they want to make a law that states at organized public events you gotta go through an FFL I have a hard time making much objection to that and usually I'm a hard liner. After reading this thread it sounds like there are some abuses there..

Not that I agree with the whole background check law in the first places but kinda like "machine guns" and bump stocks - some things happen that attempt to undermine existing laws.

But private sales that happen one gun at a time between citizens of the same state (if legal by state law, which states can chose on their own), it's crazy to regulate. The fact that in many states a valid LTC doesn't count as negating the need for a background check at an FFL is ridiculous too.

 

[SonOfScubaDiver]

The 2nd Amendment doesn't say "The right of the people to keep and bear arms if they have a permit shall not be infringed."

Is not the legality of permits an already settled issue in the courts?

a. If it won't prevent people who shouldn't have guns from getting them, what's the point?

b. Just how would this make it any more difficult for a criminal to obtain a firearm?

The point is that it would close an existing avenue for access to guns without a background check. It doesn't have to close all of them for it to help prevent the wrong people from getting guns. With the current system of private sales not requiring a check, how is anyone supposed to know if the person buying the gun from them is someone who shouldn't have one?

Also, there would be other benefits with a national permit, depending on how such a system was set up. The permit could also include carry rights that would be good in all states. We could also then buy from out of state dealers without having to go through an in-state FFL. I think it would actually lessen the burden on us as gun owners.

Of course, as is the case with anything else, the devils would be in the details. Some states without any current permit requirements would then have the requirement imposed on them. And then there's the issue of training requirements, which is something some states would probably insist on. There would undoubtedly be some give and take to make it work, but a nationwide permit would be a way to create a universal background check that would cover all gun owners, give them nationwide carry rights, and make it easier to buy a gun from out of state dealers.

 

[SonOfScubaDiver]

I've had a number of these discussions over the years, and several on FB in the last few years. Of those people I've discussed it with (still a statistically insignificant number), there have basically been two camps: (1) Folks who know nothing about guns and like it that way. They believe that there's a gun show loophole and that it's bad, but don't want to even consider guns long enough to determine how one might work. And (2) Folks who believe that nobody does a background check at gun shows, like some blanket exemption from background checks.

Seems like there are opportunities to educate some folks on what the loophole is all about then.

Gonna have to disagree on all counts here. I'm unwilling to do either, and certainly not before a proponent of those ideas figures out how to get around the Fifth Amendment, the Eighth Amendment, and Haynes. Felons first, I like to say.

I'm not following your point. What would either amendment have to do with getting such a permit or creating such a system?

 

[zukiphile]

The point is that it would close an existing avenue for access to guns without a background check. It doesn't have to close all of them for it to help prevent the wrong people from getting guns. With the current system of private sales not requiring a check, how is anyone supposed to know if the person buying the gun from them is someone who shouldn't have one?

Emphasis added. Doesn't the current prohibition on transfers to prohibited persons already do that?

 

[Spats McGee]

Seems like there are opportunities to educate some folks on what the loophole is all about then.

And I take the opportunity to educate them.

I'm not following your point. What would either amendment have to do with getting such a permit or creating such a system?

Would you agree with me that one of the main thrusts of the current arguments in support of gun control is to keep guns out of the hands of felons, the violent, and the mentally ill? If so, follow along for a moment:

1) Haynes and the Fifth Amendment go together in this. First of all, for a long time, I've thought that Haynes was a convicted felon. Looking at that decision now, I don't actually find that fact. I may just be overlooking it, or maybe memory played tricks on me. Nonetheless, he was charged with three counts, which included knowingly possessing an unregistered short-barreled shotgun. SCOTUS framed the issues this way: "The questions necessary for decision art two: first, whether petitioner's conviction under s 5851 is meaningfully distinguishable from a conviction under s 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner's obligation to register under s 5841 would have compelled him to provide information incriminating to himself." In other words, Haynes was in possession of a short-barrelled shotgun, which was unregistered at the time of possession. He was charged with possessing an unregistered shotgun and failure to register same. The question before the court was whether forcing him to register when he was already in violation of the law would violate his Fifth Amendment privilege against self-incrimination. SCOTUS held that because the registration requirement provided a basis for a real and appreciable risk of prosecution based on self-incriminating information provided by Haynes, "a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under s 5841 or for possession of an unregistered firearm under s 5851." Following that logic, a felon currently in possession of a firearm may not, consistent with constitutional protections, be required to register same, or to undergo a background check for a transfer, as the process would require both individual identification (name, address, etc.), as well as disclosure that one had been convicted of a felony.

Source: Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968).

Spats Cautionary Caveat: Do NOT take this as license to go possess an NFA item, fail to register it and claim protection under Haynes.

2) The Eighth Amendment provides protections from prosecutions for the mentally ill under certain circumstances. If a defendant is charged with a firearms charge and shows some indication of mental illness, just how long do you think it will take his attorney that the mental illness might protect his client?

 

[Lohman446]

or to undergo a background check for a transfer

Correct me if I am wrong but the caveat against self-incrimination only applies if failing a background check without committing perjury is a criminal act in itself. As the background check would occur before transfer and a failed background check would prevent transfer no crime would have occurred thus no 5th amendment privileged may be asserted.

For instance if I answer questions 11b and 11a (both associated with felony status) "yes" and no transfer occurs no crime has been committed as long as there is no statute standing against attempt to purchase (though there probably is)

 

[SonOfScubaDiver]

1) Haynes and the Fifth Amendment go together in this. First of all, for a long time, I've thought that Haynes was a convicted felon. Looking at that decision now, I don't actually find that fact. I may just be overlooking it, or maybe memory played tricks on me. Nonetheless, he was charged with three counts, which included knowingly possessing an unregistered short-barreled shotgun. SCOTUS framed the issues this way: "The questions necessary for decision art two: first, whether petitioner's conviction under s 5851 is meaningfully distinguishable from a conviction under s 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner's obligation to register under s 5841 would have compelled him to provide information incriminating to himself." In other words, Haynes was in possession of a short-barrelled shotgun, which was unregistered at the time of possession. He was charged with possessing an unregistered shotgun and failure to register same. The question before the court was whether forcing him to register when he was already in violation of the law would violate his Fifth Amendment privilege against self-incrimination. SCOTUS held that because the registration requirement provided a basis for a real and appreciable risk of prosecution based on self-incriminating information provided by Haynes, "a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under s 5841 or for possession of an unregistered firearm under s 5851." Following that logic, a felon currently in possession of a firearm may not, consistent with constitutional protections, be required to register same, or to undergo a background check for a transfer, as the process would require both individual identification (name, address, etc.), as well as disclosure that one had been convicted of a felony.

Source: Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968).

Spats Cautionary Caveat: Do NOT take this as license to go possess an NFA item, fail to register it and claim protection under Haynes.

2) The Eighth Amendment provides protections from prosecutions for the mentally ill under certain circumstances. If a defendant is charged with a firearms charge and shows some indication of mental illness, just how long do you think it will take his attorney that the mental illness might protect his client?

So, you're saying that because a permit would be required to buy, sell, or own guns that someone with a criminal conviction who wanted to do either could argue their 5th amendment rights were being violated? I suppose it could happen, but that seems like such a stretch to me. Don't felons already lose their 2A rights upon conviction?

And I've never heard an argument made in defense of a mentally ill person being shielded from prosecution because of the 8th amendment. I know of situations where they were sent to an institution in lieu of criminal prosecution, but not because of potential amendment violations. Our jails are full of people with mental health issues. If their attorneys could get them off using the 8th, that wouldn't be the case.

 

[turkeestalker]

A federal permit or license of some kind to exercise our right already guaranteed by the 2nd amendment of our constitution to buy, sell, or own guns actually sounds like a very good idea.
Very good indeed.
So good in fact that I think we should immediately rally to have it applied to the 1st amendment as well.
Just sayin.

 

[Spats McGee]

So, you're saying that because a permit would be required to buy, sell, or own guns that someone with a criminal conviction who wanted to do either could argue their 5th amendment rights were being violated? I suppose it could happen, but that seems like such a stretch to me. Don't felons already lose their 2A rights upon conviction?

2A rights, yes. But not their 5A rights. IOW, even when a convicted felon is in possession of a firearm, you still can't make him testify that he was.

And I've never heard an argument made in defense of a mentally ill person being shielded from prosecution because of the 8th amendment. I know of situations where they were sent to an institution in lieu of criminal prosecution, but not because of potential amendment violations. Our jails are full of people with mental health issues. If their attorneys could get them off using the 8th, that wouldn't be the case.

You've never heard of not guilty by reason of insanity? That's often because the defendant was either too mentally ill to form the culpable mental state required to convict, or because he was too mentally ill to conform his conduct to the requirements of the law. In either event, you cannot convict those who cannot do those two things.

If I'm mistaken about the fact that we don't execute the mentally ill because of 8th Amendment issues, I'm all ears if the other lawyers here (or even non-lawyers who know about these issues) want to correct me.

 

[Spats McGee]

Personally I don't give a damn what they do at "gun shows" - if they want to make a law that states at organized public events you gotta go through an FFL I have a hard time making much objection to that and usually I'm a hard liner. After reading this thread it sounds like there are some abuses there..
. . . .
But private sales that happen one gun at a time between citizens of the same state (if legal by state law, which states can chose on their own), it's crazy to regulate. The fact that in many states a valid LTC doesn't count as negating the need for a background check at an FFL is ridiculous too.

But those who are engaged in the business of dealing in firearms without licenses by presenting themselves as private sellers at gun shows are already in violation of the law. There are already penalties for those abuses, and pretty significant ones at that.

 

[SonOfScubaDiver]

2A rights, yes. But not their 5A rights. IOW, even when a convicted felon is in possession of a firearm, you still can't make him testify that he was.

You've never heard of not guilty by reason of insanity? That's often because the defendant was either too mentally ill to form the culpable mental state required to convict, or because he was too mentally ill to conform his conduct to the requirements of the law. In either event, you cannot convict those who cannot do those two things.

If I'm mistaken about the fact that we don't execute the mentally ill because of 8th Amendment issues, I'm all ears if the other lawyers here (or even non-lawyers who know about these issues) want to correct me.

Yes, I know about the insanity defense. I'm still trying to figure out how any of what you've posted about the 5th or 8th has to do with a national gun permit.

 

[Spats McGee]

Yes, I know about the insanity defense. I'm still trying to figure out how any of what you've posted about the 5th or 8th has to do with a national gun permit.

My point is that a law requiring this hypothetical national gun permit will be unenforceable against previously-convicted felons and the (seriously) mentally ill.

 

[SonOfScubaDiver]

My point is that a law requiring this hypothetical national gun permit will be unenforceable against previously-convicted felons and the (seriously) mentally ill.

I don't believe that, even for a second. The same restrictions that apply to felons and the adjudicated mentally ill under the current system would apply under a permit based system. One has to answer question 11c & f as it is, and the courts haven't deemed it to be unconstitutional.

 

[turkeestalker]

What is unconstitutional is requiring that a permit be issued in order to enjoy a right already granted an individual by that constitution.
What's so hard to understand?