The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here are two things that a person might do with a firearm: 1. Sell the firearm to a complete stranger in a parking lot. 2. Share the firearm with a friend, while target shooting on one's own property. Michael Bloomberg's "Everytown" lobby is promoting "universal background checks" as a means of addressing activity No. 1. But the Bloomberg laws also outlaw activity No. 2. In a previous post, I detailed how the unusual Bloomberg laws about "background checks" for "private sales" constrict safety training and self-defense; and also obstruct safe storage. This post addresses another non-sales activity, firearms sharing.
We know from Heller that "to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; … it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order." D.C. v. Heller, 554 U.S. 570, 617-18 (2008); see also United States v. Emerson, 270 F.3d 203, 236 (5th Cir. 2001) (both cases quoting Thomas Cooley's 19th-century constitutional law treatise). Thus, "the right to possess firearms for protection implies a corresponding right to … maintain proficiency in their use; the core right wouldn't mean much without the training and practice that make it effective." Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011). Just as the First Amendment includes the right to learn how to read and to practice reading skills, the Second Amendment includes the right to learn how to use arms and to practice. This includes formal classroom instruction and practice at established ranges. But the right is not limited only to those structured settings; as historically practiced in the United States, the right also includes instruction from, and practice with, friends and family in informal settings in private locations.
Even if there were no Second Amendment, any sensible firearms policy would encourage firearms practice and training to build and improve safe proficiency. Yet the Bloomberg system does the opposite.
One very common activity of gun owners is sharing their firearms on their own property. A person who owns 30 acres might have a small target range set up. He invites friends over for the afternoon, shoots at targets with rifles or handguns, and lets the friends use the family's guns. Or a farm family might have a skeet or trap thrower, which flings clay disks into the air. Informal shooting events like this are at the heart of the American gun culture. They promote friendship, community and practice in the safe handling of firearms.
They are also criminalized by some versions of the Bloomberg laws. For example, the Bloomberg law enacted in Washington state in 2014 has no exemption for sharing a firearm on one's property.
Sharing does not have to involve firing a gun. Inside the home, an owner might allow a visitor to handle his unloaded gun. Perhaps the visitor is interested in buying a new gun like the gun the owner owns. Or the visitor is just interested in guns. Perhaps the gun needs an adjustment that the visitor knows how to perform well, but the owner does not. Or the visitor might teach a new owner how to clean a gun. Under the new Washington law, sharing may take place at a corporate target range, but not on one's property.
Instead, the owner and the friend are supposed to travel to a gun store to get permission, fill out all the paperwork as if the store were selling a firearm out of inventory, and pay various fees. Only then may the gun be loaned for a few minutes. When the friend is done with the gun, everyone must revisit the gun store and repeat the process, before the gun can be returned to its owner.
The federal version of the Bloomberg law, Sen. Charles Schumer's Fix Gun Checks Act, does allow sharing a firearm within one's own home or curtilage. (113th Cong., S.374, § 202(2)(C)). This takes care of letting a friend examine one's new firearm. But if the gun owner brings his new gun to someone else's house (because the friend has the gunsmithing or cleaning equipment, for example), it is a federal felony if the friend handles that gun for a few minutes.
The federal version exempts the "curtilage" as well as the inside of a home. "Curtilage" is "[t]he land or yard adjoining a house, usu. within an enclosure." Black's Law Dictionary 466 (10th ed. 2014). For obvious safety reasons, most people set up their target ranges away from the house and do not use the curtilage as a shooting range.
The Bloomberg Nevada proposal has an exemption for any transferee "While in the presence of the transferor." If applied flexibly—so that the transferor can step out of the room to take a phone call, or can leave the backyard shooting range to go to the house for several minutes—the Nevada statute would be better than its federal or Washington counterparts.
But even the Nevada language does not help farmers and ranchers. Firearms hand-offs at farms and ranches are a routine part of operations. Some of these might last for only a few hours, while others last for several weeks—as when a ranch hand takes a gun into open range to guard a flock night and day during calving season. The farmer or rancher will not stay in the hand's "presence." The hand needs to do work in one location, and the farmer or rancher in another.
Under the Bloomberg laws, for a farmer or rancher to lend a firearm to an employee, he must travel to a gun store to process the transaction. When the employee returns the firearm, everyone must return to the gun store. Because few farms and ranches are located near gun stores, the process typically requires hours of travel time for the loan, and hours more for the return. This takes the farmer, the rancher and their hands away from the farm or ranch during what may be the busiest period of the year, when everyone needs to work from sunup to sundown.
The United States does not have a crime problem caused by people who borrow a gun for an hour of skeet shooting on somebody's farm. Yet the Bloomberg laws turn these people into criminals. As with so much of the Bloomberg Trojan horse called "universal background checks," innocent and law-abiding persons bear substantial burdens, for no benefit in public safety.
As noted in my previous posts, my articles on the Bloomberg system are based on a forthcoming article, "Background Checks for Firearms Sales and Loans: Law, History, and Policy," 53 Harvard Journal on Legislation. In addition, I represent 54 Colorado sheriffs who argue that the Colorado legislature's adoption of the Bloomberg system infringed the Second Amendment; the case is pending before the 10th Circuit, following oral argument on Sept. 28.