The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This week, U.S. Rep. Mike Thompson (D-Calif.) introduced HR8. According to the title, the bill is "To require a background check for every firearm sale." The bill does that–and a great deal more.
HR8 requires that loans, gifts, and sales of firearms be processed by a gun store. The same fees, paperwork, and permanent record-keeping apply as to buying a new gun from the store. If you loan a gun to a friend without going to the gun store, the penalty is the same as for knowingly selling a gun to a convicted violent felon. Likewise, when the friend returns the gun, another trip to the gun store is necessary, upon pain of felony.
A clever trick in HR8 effectively bans handguns for persons 18-to20.
The bill has some narrow exemptions. The minuscule exemption for self-defense does not cover stalking victims. None of the exemptions cover farming and ranching, sharing guns on almost all public and private lands, or storing guns with friends while on vacation. The limited exemption for family excludes first cousins and in-laws.
The bill authorizes unlimited fees to be imposed by regulation.
There is a partial exemption for immediate self-defense: "(D) a temporary transfer that is necessary to prevent imminent death or great bodily harm, if the possession by the transferee lasts only as long as immediately necessary to prevent the imminent death or great bodily harm".
The narrowness of the self-defense exemption endangers domestic violence victims. For example, a former domestic partner threatens 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 handgun from a neighbor for her defense. Many domestic violence victims do not have several hundred spare dollars so that they can buy their own gun. Sometimes, threats are manifested at night, when gun stores are not open.
Handgun ban for young adults
Since 1968, federal law has said that gun stores may not sell handguns to persons under 21. 18 U.S.C. § 922(c)(1). Congress has not chosen to prohibit persons aged 18-20 from acquiring handguns elsewhere. The large majority of states allow handgun possession by persons 18-20.
Some legislators have forthrightly introduced bills to impose a ban on young adults. HR8 prohibits young adults from acquiring handguns, but does so with a clever subterfuge.
HR8 requires almost all firearms sales and loans to be conducted by a federally-licensed dealer. Because federal law prohibits licensed dealers from transferring handguns to persons under 21 years, HR8 prevents young adults from acquiring handguns. This is a clever way to enact a handgun ban indirectly.
HR8 would prohibit a 20-year-old woman who lives on her own from acquiring a handgun for self-defense in her home, such as by buying it from a relative or borrowing it from a friend.
Although HR8 allows young adults to acquire handguns by parental gift, not all young adults who are living on their own receive parental largesse.
Exorbitant fees may be imposed by regulation
"(3)(A) Notwithstanding any other provision of this chapter, the Attorney General may implement this sub-section with regulations."
"(D) Regulations promulgated under this paragraph may not include any provision placing a cap on the fee licensees may charge to facilitate transfers in accordance with paragraph (1)."
Regulators may set a minimum fee, but not "a cap on a fee." The Attorney General is allowed to require that every gun store charge a fee of $30, $50, $150, or more. Even a $20 fee can be a hard burden to a poor person.
Farming and Ranching
HR8 has a limited exemption for "hunting, trapping, or fishing"—but not for ranching or farming.
Firearms transfers at farms and ranches are part of routine operations. Some transfers might last a few hours, while others last for several weeks—as when a ranch hand takes a gun to guard a flock night and day during calving season. Under HR8, the transfer is allowed only when the farmer or rancher stays in the hand's "presence." This is impractical; often the hand needs to do work in one location, and the farmer or rancher in another.
Under HR8, for a farmer or rancher to lend a firearm to an employee, they both must travel to a gun store to process the transfer. When the employee returns the firearm, everyone must return again to the gun store.
Because few farms and ranches are located near gun stores, the process typically requires hours of travel 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.
You can make a "a loan or bona fide gift" to some family members. In-laws and cousins are excluded.
The family exemption vanishes if one family member pays the other in any way. If a brother trades an extra shotgun to his sister in exchange for her extra television, both of them have to go to a gun store. Their exchange will have all the fees and paperwork as if she were buying a gun from the store.
Outlawing gun sharing on public and private property
There is an exemption for sharing guns "(i) at a shooting range or in a shooting gallery or other area designated for the purpose of target shooting".
Not everyone has access to a "designated" target range. In rural areas with low population density, the nearest designated range may be far away. In urban areas, the waiting lists for membership in a gun club may stretch out for years. Designated public ranges exist, but in many areas, there are few or none. Those that do exist may be a long ways away, or may be crowded, with long waiting times.
Accordingly, Americans have always engage in target practice at informal ranges on public lands. Today, many of these lands are owned by the U.S. National Forest Service, the Bureau of Land Management, or a state or local equivalent.
Private property may be also used, with the owner's consent. The general legal rule is that shooting is lawful anywhere in rural areas, except for specified sites, such near public roads. Of course one must always obey all safety rules, which includes ensuring that there is a safe backstop to the target, such as a mound of dirt.
HR8 prohibits firearms sharing on public or private lands that have not been "designated for the purpose of target shooting."
For example: you own a 120 acre farm. Your cousins and brother-in-law come for a visit, and they want to camp outside. You want to loan them your handgun for protection. This is forbidden by HR8. Under the bill, the family must travel to a gun store to process the loan and collect the fees. Later, when your relatives want to return your handgun, there must be another trip to gun store, with the same paperwork and fees.
Under HR8, the returned of a loaned gun is treated the same as the purchase of a new gun.
There is no exemption for loaning firearms to a museum. After Washington State enacted a law similar to HR8, the law immediately caused problems for the Lynden Pioneer Museum, in Bellingham, which had a "WWII Pacific Theater" exhibit that included rifles that had been loaned to the museum for display.
Safe storage discouraged
Consider a person who will be away from home for an extended period: a member of the armed services being deployed overseas, a person going away to school, a person going on a long vacation, or a person evacuating her home due to a natural disaster. Such persons might wish to store firearms with a trusted neighbor or friend. This type of storage should be encouraged. Guns are less likely to be stolen by burglars, and then sold into the black market, if they are kept in an occupied home rather than left in a house that will be unoccupied.
But under HR8, neighbor A can only store neighbor B's guns if both persons go to a gun store, fill out extensive paperwork for each and every gun to be stored, pay per-gun fees to the government and the gun store, and then repeat the process when the firearms are returned. As a result, many fewer people will go through all the trouble. So more guns will be left in unoccupied dwellings; they will be at greater risk of being stolen and thus of being supplied to the criminal black market. Discouraging safe storage is among the ways HR8 harms public safety.
Note: This post is based in part on my article Background Checks for Firearms Sales and Loans: Law, History, and Policy, 53 Harvard Journal on Legislation 303 (2016).