Guns

Gun Background Check Bill Could Put You in Jail for Exercising Your Right to Free Speech

|

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?

Advertisement

NEXT: Heroin Production Has Increased in Helmand Since the British Arrived

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So what are the chances of this ever passing the House?
    Also:
    It is not a taxing or spending bill…does it need to pass the House to become law?

    1. Not if Obama executive orders it, then it doesn’t even require Democracy.

    2. This is a product of our public school system.

      1. I blame school house rock for not being more explicit.

        http://www.youtube.com/watch?v=tyeJ55o3El0

        1. On a side note: should the federal government really be regulating school buses at railroad crossings? And why all the morose crap about how “hard” it is to pass laws. Plus rep McCoy??!?

          I never realized how much statist propaganda was packed into that school house rock video.

    3. All bills have to pass both Houses.

    4. No, it can be grandfathered into law under the General Welfare and Because We Say So clauses of the constitution.

      1. Don’t forget the “We deem it passed and the Good and plenty” clauses.

        1. “Appeal to emotion, being necessary to the encroachment of the Nanny State, the right of the gun grabbers to pass any and all laws in the name of the children shall not be infringed.”

    5. It is not a taxing or spending bill…does it need to pass the House to become law?

      All bills have to pass the House. The taxing bills have to start in the house.

      1. Did Obozocare start in the house? It survived because the individual mandate is a ‘tax’. Is that correct?

  2. 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.”

    That is an awful long list of people who are related to each other not via free association but random chance, and no category for “people in a long-term committed relationship not specifically sanctioned by the state.” So if it passes, which thank goodness it probably will not, the gays can have another thing to legitimately complain they are missing without SSM.

    1. Between the inclusion of the spouses and first cousins, it seems like you could chain these exclusions together Six-Degrees-Of-Kevin-Bacon style and transfer a gun from any person to any other person by using multiple hops.

      1. Except to the lucky not-so-few who are unmarried and don’t have any family members okay with guns. Of course, if you don’t have to keep records, you could just say you did that…which makes all this moot without registration anyway, of course.

        1. You know who else finally caved in to demands for “registration”….

          1. South Korea?

          2. H&R website admins?

      2. The next million dollar app.

  3. Meanwhile, Alan Gottlieb is running around claiming his group, which is affiliated with the Second Amendment Foundation, helped write the thing, and they have “snookered the gungrabbers”.

    I am rapidly coming to the conclusion that Gottlieb should STFU and GTFO.

    1. Anyone more familiar with the relationship between CCRKBA, SAF, and Gottlieb? My impression was he ran both organizations.

      I had a favorable opinion of SAF since Heller, but Gottlieb’s support for Washington state’s gun control and now this leaves me cold. At the time I thought the NRA’s unwillingness to support SAF’s suit was just their contentment with the status quo and unwillingness to rock the boat. Maybe Heller was a false flag suit that went sideways. There was a good chance it could have been decided differently, permanently putting a nail into the individual reading of the 2A.

  4. 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?

    That’s a stretch. The BC requirement only applies if the buyer finds out about the sale via the Internet/publication advertisement. No free speech issue here.

    1. Maybe not. But I see a big vagueness problem. Either it will be totally unenforceable except through stings because you can always just say that the person you ended up selling the gun to didn’t hear about it through the ad, or they will be charging people based simply on the fact that they did run an ad to sell a gun.

      1. Considering this bill’s enforcement will almost always happen when the buyer either commits a crime or gets in other trouble with the gun, I’m sure the buyer would rat out the seller if contact was made via the net.

  5. And, who will join the Supreme Court between now and the day it finally and inevitably wends its way to their august review?

  6. Fuck all o’ y’all gungrabbing motherfuckers.

    Fuck. YOU.

    Indluding those “Newtown Families” who trolled the Congrefs and stood in for Obama’s radio address last week. I’d say “I’m sorry about your loss, but…”, but now I’m not even sorry about your loss, if this is the way you’re going to respond.

    Fuck. YOU. LEAVE ME ALONE.

    That is all.

    1. So what specifically in this bill do you have a problem with, besides the fact it has gun grabber cooties on it?

      1. How about that it infringes on my right to keep and bear arms?

        1. Only if you can’t pass a background check.

          If you think violent felons and lunatics should have access to weapons I fear we have deeper disagreements.

      2. I think the problems with the bill were covered quite well in the article. The “3-Felonies-A-Day”-style vagueness that is the heart and soul of this law is not indented to do anything constructive in preventing gun violence, but merely serves as a way to enable goverment beaucrates to punish lawful gun owners for percieved Culture War crimes (i.e. if it weren’t for those vulgar hillbillies and their guns, and country music, and violent video games, the scions of Newtown would still be alive.)

        1. *bureaucrats/perceived

        2. It’s not vague at all. Mr Sullum is trying to sow vagueness where none exists; his argument for the “relative exception” implying that all private sales are forbidden is bizarre and unwarranted. One hardly even knows where to start arguing against it, it’s so foolish. It’s possible, even if unusual, for a brother to buy a gun from his sister at a gun show, and this is exempt. That’s the purpose of the exemption. Trying to read something else into it is mental calisthenics; if a prosecutor attempted to do so he’d be laughed out of court.

          Likewise, the complaint about the possibility of internet and non-internet ads is supercilious. If the buyer finds out via the internet you have to do a BC. Now this may turn out to be a difficult thing to prove in court, but that doesn’t make the law vague. Hell, rape is difficult to prove in court, but that doesn’t impugn its illegality.

      3. How about: It’s none of the governments damn business who I buy or sell a gun to/from?

        1. That’s the version of the law that I support.

          Let’s call it the ‘Fuck Off and Leave Me Alone 2nd Amendment Protection Act’

      4. Registration of voluntary activities and possession of something that should not be infringed; the creation of more burdens on voluntary transactions to the point that they could be criminal; the blatant 1st Amendment and 2nd Amendment restrictions… should I go on or were you just trolling?

        1. Some people just don’t like guns or dirty fureners. Dirty fureners with guns, that is the worst of all possible things.

        2. Registration is banned and is punishable by hard jail time in the bill. I would prefer that the DOJ not be in a position to block prosecution, and have urged my own senator Toomey to try to amend the bill to allow external agents to prosecute ATF recordkeeping violations, but it’s certainly not a pro-registration bill.

          Did you guys even read the bill before just assuming it was Chuck Schumer’s wet dream?

      5. Honestly, the fact that a fucking asshat like you is defending it is more than enough reason for every sensible person to want no part of it.

      6. What everyone else noted.

        I hope you lost someone close to you recently, you fuckhead.

        Go fuck yourself.

  7. If this bill were any good it wouldn’t be a compromise.
    Congressional compromise legislation is supposed to be poorly drafted, barely comprehensive and borderline retarded.

    1. Congressional compromise legislation is supposed to be poorly drafted, barely comprehensive and borderline retarded.

      FTFY

      1. Congressional compromise legislation is supposed to be poorly drafted, barely comprehensive and borderline retarded.

        Needed MOAR FIX.

  8. “between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings …[yada, yada, yada] or between first cousins.”

    I don’t think most states’ incest laws are that detailed. I also like the inclusion of “and their spouses” part.

  9. I’d say “I’m sorry about your loss, but…”, but now I’m not even sorry about your loss, if this is the way you’re going to respond.

    Exactly. I say again:

    Fuck you, lady. I didn’t shoot your kid.

  10. Just got this on teh emailz. Looks like Baucus (D) MT is a NO.

    Thank you for contacting me about our Second Amendment rights. I appreciate you taking the time to contact me about this important issue.

    Recent tragedies have shaken all of us, and everyone wants to do their part to protect our children and communities from violence of all kinds.

    I have heard from thousands of Montanans, and it is very important to me that every Montanan has a chance to weigh in on an open and transparent debate. But, I do not support the bill that is currently being debated in the Senate, S.649. This bill does not do enough to protect the constitutional rights of law-abiding gun owners to keep and bear arms….

    (emphasis mine)

    1. Well, he does represent Montana. They have more guns than front teeth there.

      And why are any swing state Ds going out on this precarious limb for Obama? He’s a lame duck who sure as hell isn’t going to do anything for them in return?

      1. But he might mention them in a speech. If it passed, he might even mention them in another Nobel Peace Prize acceptance speech.

      2. who sure as hell isn’t going to do anything for them in return

        Sure about that? He’s got a lot of money to throw around plus he’ll still be president during the 2014 elections which carries weight in those red districts and may in purple ones.

        Besides, has anyone else wondered what exactly he’s going to do after January 2017? I doubt he will quietly disappear back to Chicago. Not the way both he and Michelle love the limelight.

        1. I read that as disappear back to the Congo

          am I racist?

        2. Besides, has anyone else wondered what exactly he’s going to do after January 2017?

          I’m guessing he becomes another massive embarrassment to this country doing his damndest to subvert every subsequent president, just like that fuckwit Carter. Except the Obama’s will be much worse than even Carter has managed to be.

    2. call back. ask if he’s a NO vote on ending debate and cloture. he might vote to end debate (needs 60 votes) and then vote no on final passage (needs 51).

  11. 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?

    Without vague and confusing laws, what good is the prosecutor’s discretion ?

  12. 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.

    The “jail first and ask questions later” form of dispensing justice as currently practiced in this country should make you think twice about reading a certain law in its literal sense instead of assuming that creative DA’s and judges will “interpret” it as they see fit.

  13. “The latter provision effectively bans private sales via classified ads in newspapers or magazines as well as online listings.”

    I’d have thought they’d rather these sales happen out in the open.

    Reminds me of ObamaCare. Once some prominent politicians go on the record as backing something, they’ll write almost anything into it to get it passed because failure to pass anything would bring into question their ability to lead and deliver.

    They don’t care what’s in the bill at this point–so long as it passes and it’s called a gun restriction bill in the media.

  14. Looks like Baucus (D) MT is a NO.

    I have heard people offer up speculation that he will retire, and “gift” his seat to Schweitzer.

    He’s obviously hedging his bets, but if he was actually crazy* enough to vote for this, he would not only guarantee his own demise, but poison the well for any Democrat running.

    *I really think a “no” would be voting his beliefs.

    1. I was a little worried. Got some literature in the mail stating he was on the fence and had heard on the radio that he wouldn’t give his position on the bill when asked about it.

  15. I’ve sold a bunch of guns by placing for sale listings on a gun message board I belong to. New Hampshire law states that the person has to be “known to me” so if I don’t know the person I ask to see their CCW permit. If I understand this bill I will no longer be able to place those listings online, right?

    Shit. I’m downsizing my collection and have an Olympic Ultra Match AR, a Savage 93 and a Mossberg 535 for sale right now.

    1. The bill lets you ask to see a handgun license in lieu of a background check, though you’re not immune from liablity if you do so.

  16. Making the legality of a sale confusing is a feature, not a bug.

    CB

  17. …creating legal risks even for gun owners who are trying to follow the law.

    Feature, not bug. This just gives the government one more way to make anyone it wants to a criminal simply by choosing when and where to enforce it, and how to interpret it on any given day. Instead of 3 felonies a day, soon it will be up to 5 or 6 a day.

  18. Look on the bright side … as soon as this law is passed the number of crimes committed with a firearm is sure to drop to pretty much zero.

    Right?

    Right?

    1. Heh – even if the number of robberies and murders with guns went to 0 the number of gun crimes would go up with the passage of this law.

      Instead of one guy getting shot you’ll have ten guys doing a dime for paperwork violations.

    2. Clearly the NY law will make a difference, because spree killers will want to avoid legal trouble and will only load seven bullets per magazine. Just imagine all the lives that will save!

  19. it is very important to me that every Montanan has a chance to weigh in on an open and transparent debate. But, I do not support the bill that is currently being debated in the Senate, S.649.

    That “BUT” makes me think he’s getting a lot of pressure from the population center Democrats; the sort of people who like to run around claiming Montana is a “laughingstock” among the cool kid states.

    Also, the shifty rat bastard phrases it as “the bill currently being debated” to leave that door open a crack.

    There are a lot of reasons to dislike and distrust Baucus, but I don’t expect him to sell out on gun control. Unless he gets a really good price, that is. And this state is in the federal trough right up to their curly little tail, so anything’s possible.

    1. Yeah, in addition to the “currently being debated” phrase, note that he doesn’t support it not that he opposes it.

      There’s a lot a senator can do to help move this POS along without actually voting for it. When it comes down to it, all they need to 50 senators on record. The other 50 can posture all they want.

  20. If just one life is saved……. So when will we get background checks before one is allowed to purchase an automobile? Heck, that
    dude answering your classified ad may be a serial speeder or a convicted dui driver, or someone who once drove the getaway car in a convenience store robbery. Can’t take a chance selling a car to someone like that can we?

  21. Not that I see this as a gift but I had not realized that the bill is restricting firearms sales only at venues which are specifically called a “gun show”. So isn’t it fair to assume that a private firearms sale which takes place at a flea market would not require a background check? If they had meant to cover sales at any public gathering wouldn’t they have stated it so?

    So I guess we have seen the last of the “gun show” and the beginning of the “NRA Flea Market”. Or maybe the “Liberty Table Sales”?

  22. The actual Countrywide Instantaneous Criminal background Check out System, as well as NICS, is dependant on preserving life and also safeguarding folks through harm?by not permitting pistols and also explosives.

    Posted by James | Guns For Sale

Please to post comments

Comments are closed.