As J.D. Tuccille noted this morning, the background check compromise that was supposed to help save the Senate gun control bill is itself in trouble. A look at the text of the bill, which Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) unveiled the day after their announcement, helps explain why. The Public Safety and Second Amendment Rights Protection Act is broader and fuzzier than the legislation described in the press, creating legal risks even for gun owners who are trying to follow the law.
News reports said Manchin and Toomey wanted to require background checks for all sales at gun shows and for all "online sales." Toward those ends, the bill requires that all sales at gun shows be handled by federally licensed dealers, who are required to conduct background checks no matter where they sell firearms, as opposed to private sellers, who are not required to conduct background checks (again, no matter where the sales occur). The bill imposes the same requirement on all sales "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" (emphasis added). Contrary to what I gathered based on press reports, the latter provision effectively bans private sales via classified ads in newspapers or magazines as well as online listings. Furthermore, it applies to transactions that begin with ads run by buyers seeking particular weapons as well as ads run by sellers. All such sales would have to be executed by federally licensed dealers.
But the bill is silent on sales initiated by other methods, including flyers, signs, word of mouth, billboards, or even sky writing. Suppose someone sells a gun after putting up flyers and running a classified ad. He does not go through a licensed dealer. Has he broken the law? If running that ad exposes him to a criminal penalty he would not otherwise have faced, isn't that tantamount to punishing him for exercising his right to freedom of speech?
The bill adds to the legal uncertainty for private sellers by specifying that the background check requirement does not apply to transfers "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." Since such transactions are unlikely to occur at gun shows or via ads, whether online or in print, the implication is that all formerly private gun sales must now be executed by licensed dealers unless buyer and seller are relatives. If so, the Manchin-Toomey "compromise" is just as sweeping as the background check requirement it would replace.
Early press reports about the bill said it would not require background checks for transfers between "friends and neighbors." But the bill is written as if there are only two categories of private gun sales: those between relatives, where no background checks would be required, and those between strangers who connect through gun shows, Internet listings, or ads in print publications, which would be banned unless completed by licensed dealers. It says nothing about transactions between strangers who connect through other means or between friends, neighbors, or acquaintances. You might think such sales therefore would remain legal without background checks, but if you're wrong you risk arrest and up to a year in jail.
Addendum: Another section of the bill says "nothing in this subtitle, or an amendment made by this subtitle, shall be construed…to extend background check requirements to transfers other than those made at gun shows or on the curtilage thereof, or pursuant to an advertisement, posting, display, or other listing on the Internet or in a publication." But if so, why specify an exemption for transferring guns to relatives? How often do people communicate with relatives through ads or buy firearms from them at gun shows?