The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, many gun control advocates are pushing for what they call universal background checks. In this and future articles, I will explain the strange system of "universal background checks" being promoted by Michael Bloomberg's Everytown for Gun Safety lobby. These laws severely obstruct ordinary activities that do not involve gun sales, such as self-defense and firearms safety training.
Laws based on the Bloomberg system have been enacted in Colorado, Oregon and Washington. They will be on the ballot in 2016 in Nevada, and perhaps in Maine. A similar law (Fix Gun Checks Act, S. 374) has been repeatedly proposed federally by Sen. Charles Schumer (D-N.Y.)
The Bloomberg system applies to every firearms "transfer." In normal firearms law, a "transfer" means "a permanent exchange of title or possession and does not include gratuitous temporary exchanges or loans." Chow v. State. 393 Md. 431, 473, 903 A.2d 388, 413 (2006).
However, the Bloomberg laws create a very different definition. For example, the Washington state law says that " 'Transfer' means the intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans." Rev. Code Wash. § 9.41.010(25). In other words, it applies to sharing a gun while target shooting on one's own property, or to lending a gun to a neighbor for a weekend hunting trip.
Under the Bloomberg system, transfers may take place only at a gun store. The transfer must be conducted exactly as if the retailer were selling a firearm out of her inventory. So the transferee (the neighbor borrowing the hunting gun) must fill out ATF Form 4473; the retailer must contact the FBI or its state counterpart for a background check on the transferee; and then, the retailer must take custody of the gun and record the acquisition in her Acquisition and Disposition book. Finally, the retailer hands the gun to the transferee and records the disposition in her Acquisition and Disposition book. A few days later, after the hunting trip is over, the process must be repeated for the neighbor to return the gun to the owner; this time, the owner will be the "transferee," who will fill out Form 4473 and undergo the background check.
How does this affect the Second Amendment's "core lawful purpose of self-defense"? (D.C. v. Heller, 554 U.S. 570, 630 (2008)). Under the Bloomberg federal model, there is no allowance for lending a firearm to a citizen in case of emergency. S. 374, § 202(2) (exceptions only for family gifts, inheritances, transfers in the home, and for "hunting or sporting purposes" with various limitations).
Under the proposed Nevada initiative, a firearm may be lent if the loan is "necessary to prevent imminent death or great bodily harm" and the loan "lasts only so long as immediately necessary to prevent such imminent death or great bodily harm." Whatever "imminent" means, the loan is allowed only as long as "immediately necessary."
This is a narrow exemption. If people in a house were attacked by rioters, it would allow the sharing of all arms within the house. But it would not allow for a much more common self-defense situation: A former domestic partner is threatening a woman and her children. An attack might come in the next hour, or the next month, or never. The victim and her children cannot know. Because the attack is uncertain—and is certainly not "immediate"—the woman cannot borrow a defensive handgun from a neighbor. Many domestic violence victims do not have several hundred spare dollars so that they can buy their own gun as soon as they find out about the threat.
Sensible firearms policy should encourage, not impede, safety instruction. The Bloomberg laws do just the opposite. They do so by making ordinary safety training impossible unless it takes place at a corporate target range. (The federal S. 374 allows transfers "at a shooting range located in or on premises owned or occupied by a duly incorporated organization organized for conservation purposes or to foster proficiency in firearms.")
A target range is usually necessary for the component of some safety courses that includes "live fire"—in which students fire guns at a range under the supervision of an instructor. However, even the courses that have live fire also have an extensive classroom component. Some introductory courses are classroom-only. In the classroom, dozens of firearms transfers will take place. Many students may not yet own a firearm; even if a student does own a firearm, many instructors choose to allow only their own personal firearms in the classroom, as the instructor may want to teach particular facts about particular types of firearms. The instructor also wants to use firearms that he or she is certain are in good working order. In any classroom setting, functional ammunition is absolutely forbidden.
In the classroom, students are taught how to handle guns safely. Some safety skills can be taught with inert, plastic replicas—for example, the lesson that a person should always keep a gun pointed in a safe direction, or that a person should keep her finger off the trigger until a gun is on target. Learning other safety skills, though, requires using a real gun. For example, when a person hands a gun to someone else, she must first make sure that the gun is unloaded, that the safety is "on" and that the gun is inoperable because the "action" is open. For this latter requirement, this would mean that a double-barreled shotgun is broken open so that the hinged barrels are not aligned with the rest of the gun. For a semiautomatic gun, it would mean that the slide is locked back into the open position. For a revolver, it would mean that the cylinder is swung open, and not inside the rest of the gun. The training requires real guns with moving parts.
Another element of safety instruction is teaching students how to safely load and unload a gun. This is typically done by using real guns along with inert dummy ammunition. (The dummy ammunition is orange so that it can instantly be distinguished from real ammunition.) During the course of instruction, the instructors and students may "transfer" firearms dozens of times, with each transfer lasting only seconds or minutes.
Under the Bloomberg laws, the above activities are allowed only if they take place at a firing range owned by a corporation. Pre-Bloomberg, these classes had been commonly offered in office buildings, churches, schools, and homes. Limiting the classes to target ranges makes the classes much more inconvenient. Target ranges are often located on the outskirts of town, not where most people live. In rural areas, there may be many places where shooting is lawful and safe, but the nearest corporate-owned shooting range may be far away. The likely result will be fewer people taking safety classes.
In Washington, the state government says that Hunter Education instructors for the Washington Department of Fish and Wildlife work for a law enforcement agency, and are therefore exempt under the terms of the Washington Bloomberg statute. However, those instructors, according to the state government, cannot allow "student-to-student transfers of firearms."
Nor does the exemption help the many instructors and students who take courses other than the state's hunter safety program. These non-exempted instructors teach courses for students who are not interested in obtaining a hunting license, but who are interested in learning how to own and use firearms responsibly.
Also criminalized by the Washington statute is the informal safety training that has always been a traditional part of normal use of firearms (e.g., inviting a friend to one's home and teaching him how to handle an unloaded firearm).
The stated purpose of the Bloomberg laws is to prevent prohibited people from obtaining firearms, since prohibited people are more likely to perpetrate firearms crimes. In formal or informal safety training, there is no realistic risk that a student who holds a firearm for a few moments, before transferring it to another student or the instructor, is going to use that firearm in a violent crime.
The above post is based on my forthcoming article "Background Checks for Firearms Sales and Loans: Law, History, and Policy," 53 Harvard Journal on Legislation. Also, in a case pending before the 10th Circuit, I am counsel for 54 Colorado sheriffs, who argue that the Colorado version of the Bloomberg system violates the Second Amendment.