The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Safe storage of firearms: The harms from Bloomberg's strange background check system


One of the major sources for guns used by violent criminals is the theft of guns from law-abiding citizens. Sometimes the criminal steals the gun himself; other times, a burglar steals the gun, and the black market delivers it to a violent criminal. We also know that in the United States, unlike in some other countries, burglars mostly avoid occupied homes, because of the risk of being shot. So the risk of gun theft may be especially great when a home is unoccupied for several days or weeks, as when a family goes on vacation. Thus, it would be beneficial to public safety to encourage families who will be away from home for an extended period to store their firearms with neighbors or friends. This is especially true if the family does not own a sturdy gun safe. Unfortunately, the so-called "universal background check" laws being pushed by Michael Bloomberg's "Everytown" lobby discourage safe storage.

Although the Bloomberg system is promoted as addressing private sales of firearms, the Bloomberg laws as written apply to all firearms loans—whether for a few seconds or a few weeks. There are some limited exceptions (e.g., certain family members, or at a corporate target range). But these exceptions do not apply to safe storage situations.

Consider a person who will be away from home for an extended period, such as a member of the armed services being deployed overseas, a person going away to school, a family going on a long vacation, or someone evacuating her home due to a natural disaster. Such persons might wish to store firearms with a trusted friend or neighbor for months or years. Under the Bloomberg system, for the friend or neighbor to store the firearms, the following procedures must be followed:

The owner and the bailee must find a gun store that is willing to process the loan. The store must treat the loan as if it were selling a firearm out of its inventory. Under the threat of a five-year federal prison sentence for perjury, the bailee and gun store must answer the dozens of questions on ATF Form 4473. Next, the gun store contacts the FBI or a state counterpart for permission to proceed with the sale. Under ideal circumstances, permission to proceed is granted in less than 10 minutes. The retailer then logs the gun into his Acquisition and Disposition record book, as an acquisition. He next logs the gun out of the record book, as a disposition. He hands the firearm to the bailee. The process must be followed for every firearm. If there are two are more handguns, the store must send additional forms to the Bureau of Alcohol, Tobacco, Firearms and Explosives. Depending on the state, a fee is charged for each background check requested. The gun store, of course, will process this transaction only if it can charge a fee to compensate it for handling the paperwork. Unlike with an inventory sale, the gun store is not making any profit on the gun itself.

Later, when the bailor returns and is ready to take custody of her firearms, the entire process must be repeated, with bailor and bailee both taking all the guns to the gun store, before they may be returned to the bailor.

This is a time-consuming process, especially for people who own more than a couple of guns. Yet failure to comply with this process is a serious crime in states where Bloomberg laws have been enacted, such as Colorado, Washington and Oregon. The inevitable effect is that many people who leave their homes for extended periods will not go to all the trouble and will simply leave their firearms in their unoccupied homes. There, the guns will be at greater of being stolen, and thus supplied to the criminal black market. Discouraging the safe storage of firearms is one way the Bloomberg laws affirmatively harm public safety.

Before the Bloomberg law went into effect in Colorado in 2013, Colorado State University (CSU)—like many colleges and universities nationwide—allowed students to store their hunting guns with campus police. When a student wanted to use the gun for hunting, he could check out the gun from the campus police. After the hunting trip, he would return the gun to them for storage. Because of the Bloomberg law, this has become impossible, and the safe storage program was ended. In order to give the gun to the student, a campus police officer would have to travel with the student to a gun store, where the store would process the student's gun acquisition as if selling a firearm out of its inventory, with all the associated paperwork. (The Colorado statute has no law enforcement exemption, so the law enforcement firearms custodian must undergo a store-based background check every time he receives a firearm.) Later, when the hunting trip was completed, the student and the campus police officer would have to return to the gun store to repeat the process, this time treating the officer as if he were selling a a gun to the student. Because the CSU police did not have extra officers on hand to go through this process, CSU was forced to shut down its safe storage program.

In an article yesterday, I detailed how the unusual Bloomberg system obstructs safety training and self-defense. As noted yesterday, my analysis of the Bloomberg laws is based on my forthcoming article "Background Checks for Firearms Sales and Loans: Law, History, and Policy," 53 Harvard Journal on Legislation. As also noted, I am counsel for 54 Colorado sheriffs, who argue that the Colorado version of the Bloomberg system violates the Second Amendment, in a case pending before the 10th Circuit. In a future post, I will explain how the Bloomberg system outlaws ordinary sharing of firearms, such as sharing firearms while target shooting on one's own property.