Y’all… you need to read this blistering smackdown dissent of that garbage fire UBC bill that I broke down in the last post:
H.R. 8 is based on false premises and provides nothing more than false hope. However, when the bill’s numerous flaws were exposed during consideration of the bill, the Chairman refused to hear from Members critical of the bill and hastily and arbitrarily ended debate. The use of such questionable tactics, at the beginning of the Chairman’s tenure, does not bode well for bipartisan cooperation. Since H.R. 8 would do nothing to
prevent mass casualty shootings, curb violent crime or prevent suicide, we urge our colleagues to oppose this seriously flawed legislation, and we respectfully dissent.
After every major tragedy, the chorus from Democrats to “do something” has also become tragically predictable. Most of the time, these calls for action come before any of the facts are known about the shooting. The “something” most often mentioned is implementation of universal background checks, embodied in H.R. 8. Aside from the obvious and obnoxious exploitation of the tragedy and its victims, there is one very simple problem with their rush to “do something” in the wake of a mass shooting, and that is there is no logical connection between the mass shootings and universal background checks. The unescapable fact is that H.R. 8 would not have prevented any of the mass casualty shootings over the past two decades.
H.R. 8 would have certainly not stopped the Parkland shootings, where the shooter acquired the firearms legally from a Federal Firearms Licensee (FFL) after undergoing a National Instant Criminal Background Check System (NICS) check. The NICS check showed no derogatory information that would prohibit the shooter from purchasing or possessing a firearm. This is despite the fact that the shooter had numerous interactions with law enforcement which could have potentially led to the arrest and conviction of an offense that would prohibit him from possession a firearm under 18 U.S.C. Sec. 922(g).\1\ The calls included an anonymous tip on February 5, 2016, that Cruz had threatened to shoot up the school, and a tip on November 30, 2017, that he might be a “school shooter in the making” and that he collected knives and guns.\2\ On September 23, 2016, a peer counselor notified the school resource officer of his suicide attempt and intent to buy a gun.\3\ The school indicated, at one point, it would do a “threat assessment” to determine if Cruz was a danger to the school and its students.\4\ Again, in September 2016, three people–a sheriff’s deputy who worked as a resource officer at Stoneman Douglas, and two of the school’s counselors–stated the shooter should be forcibly committed for mental evaluation.\5\ This, of course, would have prevented him from purchasing a firearm. On September 24, 2017, a person with a username similar to that of the shooter posted a comment to a YouTube video reading, “Im[sic] going to be a professional school shooter”. The person who uploaded the video to YouTube reported the comment to the FBI.\6\ On January 5, 2018, the FBI’s Public Access Line received a tip from a person who was close to the shooter who indicated the shooter had a “desire to kill people”.\7\ Following the shooting, the FBI released a statement stating, “the caller provided information about [the shooter’s] gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting.” After conducting an investigation, the FBI said the tip line did not follow protocol when the information was not forwarded to the Miami Field Office, where investigative steps would have been taken.\8\
While the “do something” crowd’s demands were loudest after Parkland, they do not stand alone as an example where universal background checks were demanded after a tragedy. Parkland is not unique, however, when it comes to the logical disconnect between the calls for universal background checks and the actual tragedy. In fact, as pointed out earlier, they all share one common element: not a single provision of H.R. 8 would have prevented a single one of the tragedies.
H.R. 8 would not have stopped the Sutherland Springs, TX shooting. The shooter made purchases from an FFL following a NICS Check. He should have been prohibited from purchasing or possessing firearms due to his arrest and conviction for domestic violence, which was not reported into the NICS system.\9\ Nor would H.R. 8 have stopped the Las Vegas shootings, where the shooter also purchased his firearms legally from an FFL after undergoing a background check. There was nothing in the shooter’s history that would have prohibited him from purchasing or possessing a firearm.\10\ Likewise, the shooter in the Orlando nightclub purchased his firearms legally from an FFL following a NICS check.\11\ The same can be said for the perpetrators of the Virginia Tech, Sandy Hook, San Bernardino, Thousand Oaks, Fort Hood, Tucson, Aurora, Navy Yard, the Pittsburgh Synagogue, and any of the other mass casualty events that the majority use to justify H.R. 8.
Many of these tragedies did, however, have some things in common. There were warning signs that were either missed or ignored by law enforcement prior to their occurrence. Simply put, H.R. 8 would not have stopped a single mass casualty shooting the majority uses to justify this bill. If any of these tragedies were preventable by H.R. 8, we would know it, because the supporters of this bill would be shouting the perpetrator’s name from the rooftops. When supporters of H.R. 8 are asked which mass casualty shooting would have been prevented by this bill, the ensuing silence is deafening.
Similarly, H.R. 8 will do nothing to stem the tide of violence plaguing our urban communities. Supporters of H.R. 8 fail to recognize the way criminals obtain their firearms. A recent report from the Bureau of Justice Statistics of the Department of Justice detailed how criminals acquire their firearms.\12\ A survey of prisoners incarcerated for a crime during which they possessed a firearm shows nearly half
obtained their firearm either through theft (6 percent) or on the underground market (43 percent).\13\ H.R. 8 does nothing to address either of these issues. It is mind-boggling that the “do something” majority on this Committee did nothing to address the methods that nearly half of all criminals use to get their firearms. In fact, the Chairman ruled as non-germane an amendment that would have potentially prevented these tragedies. Despite the fact Committee Democrats consistently point to the gun show “loophole” as a reason for implementing the draconian requirements of H.R. 8, a mere 0.8 percent of prisoners polled purchased firearms at gun shows.\14\ Because the survey does not distinguish between whether the criminal purchased the firearm from an FFL or a private seller at a gun show, it cannot be known if H.R. 8 would have prevented anyone from obtaining a firearm. H.R. 8 also makes the foolish assumption that criminals will all of a sudden start obeying the law.
Not only is H.R. 8 ineffective, it is also unenforceable. The National Institute of Justice of the Department of Justice concluded in 2013 that background checks are unenforceable without a gun registry.\15\ However, H.R. 8 explicitly prohibits the establishment of a registry. We in no way support or advocate for the establishment of a registry, but point this out as to further proof that this bill is a fraud being perpetrated upon the people being asked to support it.
Not only is H.R. 8 ineffective and unenforceable, it is simply bad policy that will do nothing more than burden the lives of law-abiding citizens wishing to exercise their Second Amendment rights. It will turn a neighbor lending his firearm to a victim of domestic abuse for her own self-defense into a criminal. It will likewise turn the victim into a criminal. If an individual sells her firearm to a police officer, they would both be criminals under H.R. 8. There are countless other scenarios that will put law-abiding Americans in legal jeopardy for a myriad of reasons that make little to no sense. When these scenarios were presented to the Majority party during Committee consideration of H.R. 8, they rejected the remedies we offered outright.
Furthermore, the bill uses undefined and vague terms, leaving it open to Constitutional challenges that will infringe upon the rights of law-abiding rights of Americans. The bill uses undefined terms such as “imminent.” What does “imminent” mean within the proposed statute? Can one cousin transfer a firearm to her cousin who fears her domestic abuser? The legislation is unclear. How long does the exemption for hunting last? Can I loan my lifelong friend my rifle to hunt deer for one day or a week? Once again, what does “great bodily harm” mean under the proposed statute? There are definitions of “substantial bodily injury” and “serious bodily injury” within the U.S. Criminal code,\16\ but there is no definition of “great bodily harm” in the criminal code, which is the term that this bill uses. Had the Republican minority not been prematurely and inappropriately cut off from debate on the matter, we would have offered and hoped that the majority would have accepted amendments to cure these concerns.
H.R. 8, the “Bipartisan Background Check Act of 2019,” is dishonest, misguided, poorly drafted, ambiguous, impractical, unworkable, and intentionally designed to deprive law-abiding Americans of their fundamental rights.
LIES, DAMN LIES, AND POLLING DATA
During the markup of H.R. 8, members of the majority consistently declared “97% of Americans support universal background checks.” Is this true? In a word–NO. Supporters of this legislation are misrepresenting the polling. It should also be noted that, when given a choice at the ballot box, voters have voted down universal background checks.The Giffords Law Center to Prevent Gun Violence explains that a “universal background check” is a policy to “require background checks by every person who sells or transfers a gun.”\1\ A universal background check would require a potentially costly background check before a father can give a firearm that is a family heirloom to his son. A universal background check could unnecessarily delay the ability of a friend to loan a firearm to the victim of domestic violence, so she can protect herself from her abusive ex-husband. In this last instance, a delay could be the difference between giving the woman a chance to defend herself or death. In a universal background check system, the transferor would face criminal prosecution, jail time and a substantial fine if the individual transfers a firearm to anyone prior to completing a background check on the transferee.
Despite the majority members’ false characterization, Americans by and large have not indicated support for universal background checks if it means the father or friend described above would go to jail. Rather, polling has simply gauged support for background checks in relation to “gun sales.” The following reflects recent polling questions on this issue:
“Please tell me whether you favor or oppose each of the following approaches to prevent mass shootings at schools . . . requiring background checks for all gun sales.”–Gallup, March 5-11, 2018.
“Do you support or oppose requiring background checks for all gun buyers?”–Quinnipiac, June 17-20, 2017.
“Do you support requiring all sellers to run background checks on anyone who buys a gun?”–Morning Consult, June 17-20, 2016.
Nowhere do these questions ask about universal background checks. Clearly, the polling is asking about gun sales–not a gift of loan of gun, as would be regulated under a universal background check scheme. A gun sale is a commercial transaction and, as is common knowledge, these transactions are primarily conducted by gun dealers. Therefore, a poll respondent could reasonably understand the poll to be asking: “Should a gun dealer be required to conduct background checks as part of any sale?” A “yes” answer to this question is entirely different than what the members of the majority have represented. That the public supports requiring gun dealers to run a background check isn’t even news-worthy because it is already required by federal law.
In addition, it should be noted that many of these polls were conducted by the media immediately following a mass shooting. For example, the Gallup poll was conducted three weeks after the Parkland shooting and Morning Consult initiated its June 2016 poll less than one week after the Orlando nightclub shooting. Could the timing of these polls skew the results given their proximity to a significant tragedy? Potentially. In that sense, not only has the public not been asked about universal background checks, but when asked about gun sales, a poll response in the mid 80-percent range as to gun sales could be somewhat overstated. The best evidence we have as to where public sentiment lies on the issue of universal background checks is the voters’ response at the ballot box. In Maine, voters rejected a 2016 referendum that would have instituted a state-based universal background system.\2\
The preliminary purpose stated in the bill will “require a background check for every firearm sale.” That statement is closer to public sentiment in terms of the polling. The legislative text, however, is a bait and switch. The bill not only seeks to regulate gun sales, it would also regulate non-commercial transfers between private parties, including between family members, in significant ways. The bill criminalizes many common and often necessary firearms transfers between law-abiding citizens.
This legislation will not reduce criminals’ access to guns. During the markup, the majority cited statistics implying that H.R. 8 was necessary to prevent criminals from gaining access to a firearm. According to a Bureau of Justice Statistics survey released in January 2019, however, only 7.0% of convicted criminals purchased the gun they used during the commission of a crime “under their own name from a licensed firearm dealer.”\3\ The same survey indicated that most criminals gained access to a firearm through unlawful means–by theft, being present at a crime scene, through a straw purchaser or through the black market.
Will this legislation stem the sale of illegal guns on the black market? That’s unlikely. It, therefore, strains credulity to think that H.R. 8 would have any meaningful impact on reducing criminals’ access to firearms or to reduce gun crimes. Given the facts, the purpose of this legislation, therefore, is laid bare. The bill is designed to regulate gun transfers between law-abiding persons who have no criminal intent or past criminal history.
A STRAIGHTFORWARD READING OF THE STATUTE
In a weak attempt to defend H.R. 8, members of the majority party stated the bill’s text has been around for “decades.” It should also be noted that the bill is only six pages in length–which means it shouldn’t take too long to read and comprehend the bill’s language. Despite both the legislation’s longevity and brevity, the members in the majority party repeatedly demonstrated their superficial understanding of the bill and its implications.
H.R. 8 consists of six sections. Section 3 contains the operative provision of the bill (amending 18 USC 922). Section 3 creates a new “paragraph “1” under which private party firearm transfers would be restricted. Paragraph 1 lays down the general rule making it “unlawful . . .” to transfer a firearm . . .” to anyone unless: (1) the transferee is federally licensed; or (2) a licensed dealer is used as an intermediary to complete a gun transfer. Paragraph 2 then sets outs several narrow exceptions to the general rule established under paragraph 1.
Critical to any understanding of this statutory scheme is the fact that only the conduct of the transferor is criminalized under the bill. This bill does not, contrary to statements made during the markup, criminalize the conduct ofthe transferee/recipient of the firearm. (Though it should be noted that current law already makes it illegal for many convicted felons to take possession of a firearm).
POORLY CONSTRUCTED EXCEPTIONS
While paragraph 1 contains the general rule establishing criminality, paragraph 2 creates six exceptions, offering immunity for one of a few narrowly tailored qualifying transfers. If a transferor meets one of these exceptions, he or she will not need to use a dealer or dealer intermediary to run a background check to complete a firearms transfer. Because of this construct, the immunity created under these exceptions applies to the act of transfer which means these exceptions must be examined from the perspective of the transferor. During debate on this bill, no greater misunderstanding of this legislation was evident than with respect to the language, application and implications of these exceptions. Of the six transfer exceptions found in the bill, five appear most applicable to a member of the public. These include the following:
1. Law Enforcement. This exception states paragraph (1) shall not apply to: “a law enforcement agency or any law enforcement officer, armed private security professional, or member of the armed forces to the extent the officer, professional, or member is acting within the course and scope of their employment and
2. Family Exception. This exception states paragraph
(1) shall not apply to: “a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, between siblings, between aunts or uncles and their nieces and nephews, or between grandparents and their grandchildren.”
3. Estate Exception. This exception states paragraph (1) shall not apply to: “a transfer to an executor, administrator, trustee or personal representative of an estate or a trust that occurs by operation of law upon the death of another person.”
4. Good Samaritan Exception. This exception states paragraph (1) shall not apply to: “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.”
5. Recreation and Sport Exception. This exception states paragraph (1) shall not apply to: “a temporary transfer if the transferor has no reason to believe that the transferee will use or intends to use the firearm in a crime or is prohibited from possessing firearms under State or Federal law, and the transfer takes place and the transferee’s possession of the firearm is exclusively–
(i) at a shooting range or in a shooting gallery or other area designated for the purpose of target shooting
(ii) while reasonably necessary for the purposes of hunting, trapping, or fishing, if the transferor (I) has no reason to believe that the transferee intends to use the firearm
in a place where it is illegal; and (II) has reason to believe that the transferee will comply with all licensing and permit requirements for such hunting, trapping, or fishing, or
(iii) while in the presence of the transferor.
Law Enforcement Exception
Upon close reading and examination of the five exceptions quoted above, two exceptions relate to a “transfer” to permitted persons (family or in relation to an estate) and two others relate to a “temporary transfer” (preventing harm or in relation to certain activities such as hunting). The fifth exception is an anomaly in terms of language. The “Law Enforcement Exception” reads noticeably different than the other exceptions–it does not use the word “transfer” and therefore should not be read to suggest any transfer to law enforcement is exempt under the statutory scheme. During debate, the Chairman stated someone contemplating suicide could safely transfer a firearm to law enforcement and the transferor would be shielded from prosecution under the LawEnforcement Exception. That conclusion certainly isn’t supported by the legislative text. The bill doesn’t, for example, exempt “any transfer or temporary transfer to or from a law enforcement agency. . . .”
Rather, this exception can only be read to give immunity to law enforcement in relation to a firearms transfer made by law enforcement. This exception does not provide immunity in relation to “transfers to” law enforcement. How might this apply in practice? This exception gives law enforcement immunity to transfer a firearm in conjunction with an undercover operation or investigation. This is the only reasonable interpretation of the meaning and application of this exception given the bill’s language.
Where does this leave a citizen transferor who wants to transfer a firearm to law enforcement? If a child finds an abandoned gun in a park, how does this bill treat the parent who surrenders the firearm to the police? As a felon. Can someone who is contemplating suicide give their gun to police temporarily? Not under this exception. Does this provision shield a citizen participating in a state or local gun buyback program\4\ from federal prosecution under this bill? No–not at all. Is an attorney who surrenders a firearm to law enforcement on behalf of a client to allow ballistics testing immune from prosecution? No. The impact of this poorly written exception cannot be understated. Without modification, H.R. 8 criminalizes citizen transfers to law enforcement even when the transfer would promote public safety, in an emergency, or during gun buyback programs. This legislation will substantially curb public cooperation with law enforcement in many circumstances.
In addition, the text of the Law Enforcement Exception also provides special treatment for a “private security professional.” This language gives special rights and privileges to the wealthy elites, like former Mayor Bloomberg– a notorious advocate of gun control legislation to deprive citizens of their Second Amendment rights–and his bodyguards. At the same time, this bill denies similar protections to persons who have a need for personal protection but who lack the wealth and resources to hire private security. No law should be more offensive to our Constitution and the idea of freedom than a bill that denies nearly all citizens their rights while giving wealthy elites special protection, privileges and dispensations.
The minority offered an amendment to expand the bill’s exemptions to include concealed carry permit (CCP) holders. The majority argued that the training of CCP holders is inconsistent from state to state and perhaps inadequate. Couldn’t the same be said for a “private security professional?” Many states don’t require licensing of private security professionals. Many that do, do not require any form of firearms training. The result is that the majority has put forward a bill that ensures someone without firearms training, knowledge and experience can transfer a firearm while a CCP holder, who has extensive training, knowledge and experience, cannot complete a similar transfer.
Given the obvious flaws in the legislation, the minority filed at least twenty-one amendments to bring much needed clarity and fairness to the Law Enforcement Exception. These good faith amendments were offered consistent with the interests of public safety. They included:
Buck Amendment #1–clarifying existing exceptions and allowing transfers to, among other persons, first responders, military reservists, the National Guard, Coast Guard and Coast Guard Reservists, medical professionals and in emergency situations.
Buck Amendment #5–allowing transfers to law enforcement as part of gun buyback programs and for other purposes.
Buck Amendment #35–allowing a transfer to an intermediary, such as an attorney, where the purpose of the transfer is to facilitate a firearm transfer to law enforcement.
Sensenbrenner Amendment–allowing a transfer to someone who has a concealed-carry permit (defeated in committee).
Chabot Amendment–allowing a transfer to law enforcement officers authorized to carry a firearm as part of his or her employment (defeated in committee).Buck Amendments #15 through #19, #21 through #24, #26, and #28–allowing transfers to persons who might be present at the scene of an emergency, who might be engaged in search and rescue activities following a natural disaster or other tragedy or might, by taking possession of a firearm, be able to diffuse a potentially volatile situation.
The majority defeated the Sensenbrenner and Chabot Amendments and used procedural measures to block consideration of at least nineteen other clarifying public safety amendments.
As admitted by the majority, the language of H.R. 8 is decades old. The language in the Family Exception clearly reflects the bill’s age. Its language is outdated and, in fact, discriminatory. The language of this exception fails to recognize many of today’s common family relationships that are deserving of recognition and protection by Congress, including in relation to the transfer of a firearm.
H.R. 8 creates an exception allowing a transfer between spouses. Under federal law, however, common law marriage must meet a different legal standard. Is the transfer of a firearm between spouses in a common law marriage permitted under the Family Exception? The answer is, at best, unclear but it is likely excluded from this exception. Transfers between common law spouses should be given clear and unambiguous protection. The bill allows a firearm transfer from a parent to child. Are transfers between a step-parent and step-child, between a foster-parent and foster-child or legal guardian and child treated similarly? No–not under the bill. These relationships are legally distinct from the relationships that are covered under this exception. Is this legally defensible? Not at all. Ask a step-parent to name their children. Most will include the names of their step-children without hesitation. These relationships should not be denied equal protection.The bill creates an exception allowing a grandparent to transfer a firearm to a grandchild. Transfers between a great-grandparent and great-grandchild, however, are not afforded the same protection. Shouldn’t H.R. 8 afford legal protections based on the reality of the family makeup rather than discriminate against it? Absolutely, but the bill doesn’t do that.
The bill allows a transfer between aunt and uncle and niece or nephew. First cousins are excluded from this portion of the Family Exception. Under the bill, Uncle Dave and Aunt Ruth can give their nephew, Craig, a shotgun for Christmas. But if, under the bill, Dave and Ruth’s son, James, joins in the gift giving, that transfer would not be exempted from prosecution. Under the bill, transfers between cousins are not permitted without use of a dealer intermediary. That makes no logical sense.
The minority filed numerous amendments to bring much needed clarity to the Family Exception. As with other amendments, the majority used procedural measures to preclude any consideration of these amendments.
The Estate Exception is incomplete, particularly in relation to the operation of state law. The exception allows the transfer of a firearm to an executor, administrator, trustee, or personal representative of a decedent. Following that, under state law, these firearms must either be transferred: (a) in accordance with the decedent’s estate plan such as directed by his or her will or trust; or (b) if the individual dies intestate, then in accordance with state probate law. H.R. 8, however, contains no exemption for an executor who is under a legal obligation to complete a firearms transfer required by state law to do so without using a dealer intermediary.
As a result, this bill supersedes and interferes with an individual’s estate plan and operation of state law, including by allowing potentially significant transfer fees. What if an estate lacks resources to pay the costly firearms transfer fees? Under the Family Exception, a father could transfer a firearm to his son during life but, if the father dies, under the Estate Exemption, the executor is prohibited from transferring the same firearm to the same son one day after the father’s death. This makes no sense. The executor, often an attorney or bank and trust company, would be committing a crime if a dealer intermediary was not used to complete a transfer required by state law to the son.
Noticeably absent in the bill is a transfer exception allowing an individual acting under a valid power-of-attorney to lawfully take possession of a firearm. A power-of-attorney is a common component of most estate plans. This document allows the attorney-in-fact to act consistent with the document’s instructions, such as to manage the affairs of the principal when he or she is hospitalized or becomes incapacitated. An attorney-in-fact should be able to take temporary possession of a firearm to secure it rather than leave it unsecured in an unoccupied home, such as while the principal is hospitalized. Under state law, the principal would be able to take such actions. H.R. 8, however, makes that common-sense action unlawful. Federal law should give clear affirmation that this kind of action would not constitute a criminal act.
The minority filed several amendments to address these concerns and bring much needed clarity to the Estate Exception. The majority engaged in procedural maneuvers to block full consideration of each of these amendments that would have aided in the administration of state probate law.
Good Samaritan Exception
The Good Samaritan Exception is another problematic and terribly ambiguous provision of the bill. The bill exempts transfers “necessary to prevent imminent death?” “Imminent” means “ready to take place” or “a danger that is menacingly near.” If an individual is having occasional suicidal thoughts and, in an abundance of caution, asks a friend, a good Samaritan, to take custody of his guns for a few days is death “imminent?” Likely, not. As such, this kind of transfer is criminalized under the bill.
This exception also permits a transfer but only where the transfer lasts as long as is “immediately necessary.” In other words, a transfer must be reversed immediately once the threat has been ameliorated. What if the return is not immediate? Could the transferor be charged with a crime if, for example, the transferee was on vacation at the time the transferor stopped having the suicidal thoughts? Under the legislation, yes. Will federal law enforcement use this as a basis to prosecute gun owners whenever there is a delayed return transfer?
Is the return of a firearm to its owner, as required under this exception, an exempt transfer? A plain reading of the legislative language provides no immunity for the return transfer by the good Samaritan–even though the bill requires such transfer. Based on this language, the gun owner (the original transferor) could face prosecution if the firearm is not immediately returned to him while the good Samaritan (acting as a return transferor) could face prosecution if he immediately returns the firearm without using the required dealer intermediary. What if the reason for delay is the lack of availability of a dealer intermediary to complete the return transfer for the good Samaritan? Under the bill, this delay puts the original transferor in criminal jeopardy.
Conflicting and ambiguous language, such as this, will frustrate the very intent of this exception. Any law-abiding gun owner who understands the overly-prescriptive nature of this exception would likely decide to keep his guns, instead of seeking help from a friend. It might also cause someone otherwise willing to act as a good Samaritan to decline to help. The result, in either event, is that the firearm will not be removed to avoid a potentially dangerous situation. A bill that creates this scenario–which could lead to the worst of all possible outcomes–is no success; it’s a failure.The minority filed several amendments to clarify these issues, but the majority refused to allow these amendments to be offered to hear the concerns of the minority and to debate these amendments. Consequently, the vague and ambiguous language of the bill as to this exception remains.
Sport and Hunting Exception
As with the other exceptions contained in the bill, the language allowing temporary transfers related to sport, hunting and other activities is overly prescriptive. As such, these provisions contain ambiguities that render the exception unworkable. The result, regrettably, could lead to the prosecution of unlawful firearms transfers based on mere technicalities, including in situations where no person was ever at risk. Given the statements of many supporters of this legislation, that may well be their intent.
Under the hunting component of this exception, the transferor is required to have “no reason to believe” that a transferee will use a firearm in any place that is illegal while also having a “reason to believe that the transferee will comply” with licensing and permitting requirements. Under this language, a transfer is allowed if, under the first component, the transferor possesses no knowledge as to criminality while, under the second component, the transferor must have actual, concrete knowledge in terms of hunting licensing. These are two contrary standards that could cause confusion. It remains to be seen how a transferor would be expected to satisfy the actual knowledge standard contained in the second component. Is the transferor expected to interrogate the transferee? Would he need to ask to inspect his papers, such as requiring presentment of the transferee’s hunting license?
Another point eloquently made during the markup related to how rural states and portions of the United States view farming and ranching as protected activities. One amendment sought to expand this exception to make it complementary to state law. This amendment was defeated.
The minority offered amendments to clarify this exception, but these amendments were denied consideration by the majority.
EFFORTS TO PROVIDE ADDITIONAL PROTECTIONS
Another area of concern raised by the minority members is the provision of the bill that precludes any regulatory cap on the transfer fees that could be charged to facilitate a gun transfer using a dealer intermediary. The minority filed amendments to address this issue. None of these amendments were adopted. It seems clear that the majority wants to use this legislation to impose large and onerous fees on the transfer of previously-owned firearms, including perhaps, by allowing state and local authorities to impose additional significant transfer taxes on top of those fees charged by a dealer intermediary. In addition, members of the minority filed amendments related to several other issues of Constitutional concern. These amendments would have: (a) allowed federal funds to be used to restore an individual’s gun rights if the individual could prove good character to the Attorney General, using a process that already exists under current law; (b) limited the bill to regulate only interstate firearms transfers; (c) created positive incentives for licensed dealers to facilitate private party firearms transfers, such as offering immunity from tort claims if a previously owned firearm proved defective (by law, the dealer must treat the used firearm as part of his “inventory” which suggests he has put the firearm into the stream of commerce when, instead, he is merely facilitating a transfer of something already in the stream of commerce); (d) allowed states to act consistent with the Tenth Amendment by adopting a regulatory scheme that gives primacy to state regulation in relation to private party gun sales; and (e) required destruction of any government records by the bill if any court rules the bill is unconstitutional. The majority used procedural measures to defeat or block each of these amendments.
SHALL NOT BE INFRINGED
The Second Amendment protects each citizen’s right to keep and bear arms. The reason a law-abiding American might chose to own a firearm is as unique as the individual gun owner. These reasons include for sport and recreation, such as hunting or target practice. For work-related reasons, as is common among farmers and ranchers, law enforcement and other security professionals. For personal protection, including the protection of loved ones and property. Regardless of the purpose, the Constitution provides that this right “shall not be infringed.”
As outlined above, H.R. 8 is terribly flawed legislation. The legislation will deprive law-abiding Americans of their fundamental rights. In total, Republicans filed 107 amendments to address and fix the obvious flaws of this bill. Democrats permitted votes on only a handful of amendments and used procedural maneuvers to block debate on nearly 100 amendments. It is apparent that the markup of this bill had one purpose–to rush a flawed bill out of committee and bring it hastily to the floor of the House of Representatives, rather than taking the time to scrutinize a bill that is obviously unworkable in its present form.
While H.R. 8 may pass the House of Representatives in the near future, it will not pass the Senate this Congress. Law-abiding gun owners and defenders of the Second Amendment, however, should not rest. During the markup of this legislation, several members of the majority promised H.R. 8 was “only the first step” and suggested that “there would be more to come.” That is exactly what law-abiding gun owners and defenders of the Constitution should fear. It will take nothing short of complete vigilance to protect our Second Amendment rights and to defeat this poorly crafted legislation–and whatever else its proponents have in mind.
“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”–Thomas Jefferson, Commonplace Book, Quoting 18th century criminologist, Cesare Beccaria.
For the reasons stated above, I dissent from the views contained in the Committee’s report.
I am a strong supporter of the Second Amendment and an individual’s right to keep and bear arms. The overwhelming majority of gun owners are law-abiding citizens who use firearms for sporting purposes, as historical collector’s items, to go hunting with their children, and if necessary, to protect themselves and their families. The legislation that we are considering today would do nothing more than criminalize common transfers of firearms while doing nothing to prevent gun violence.
However, some lawmakers view the Second Amendment as being an inferior Amendment, to be restricted and curtailed. But the Founding Fathers included the first 10 Amendments, also known as the Bill of Rights, in the Constitution because they understood the need to place restrictions on the Federal Government in order to protect individual liberty. The Second Amendment states that “the right of the people to keep and bear arms, shall not be infringed.” In 2008, the Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as for self-defense within the home. Anytime we are discussing placing restrictions on an enumerated Constitutional right, we must very carefully weigh the different competing interests.
I, along with fellow colleagues here on our side of the aisle, do want to see a reduction in violent crime and rates of gun violence. Unfortunately, the legislation we are considering today would do nothing to help combat gun violence, especially in relation to mass shootings. None of the recent mass shootings that have occurred in this country would have been prevented with this legislation. The only effect this legislation would have that I can clearly determine would be preventing law-abiding citizens from exercising their Second Amendment Constitutional right.
This legislation is poorly drafted and ill considered. Some of the actions that would become illegal include loaning a gun to a longtime neighbor, say because of recent break-ins in the neighborhood, donating a historic firearm to a museum, or gifting a gun to a stepchild. This legislation would even make it illegal to remove firearms from a friend’s or neighbor’s house at their request if they were having suicidal thoughts. This simply punishes lawful gun owners without addressing the realities behind gun violence.
In California, which has some of the strictest gun laws in the country, universal background checks have proven to be a failure. A recent study by the Violence Prevention Research Program at UC Davis and Johns Hopkins University found that the implementation of universal background checks had no effect on the rates of suicide or homicide by firearms. Simply put, universal background checks have been proven to not reduce gun violence and will do nothing to protect the American people. To combat gun violence, we must look at improvements to our mental health system, and we must more effectively enforce the laws currently on the books. We should not be wasting valuable time on an ineffective bill that will only serve to impede upon the Constitutional rights of law-abiding Americans. I urge my colleagues to vote against this measure and work on finding real solutions to gun violence. We should stop playing politics with legislation that won’t benefit the American people.