Category: Law

UPDATE: OK, a bit of editorializing here. After reading and re-reading a lot of these provisions, it’s not abundantly clear what circumstances are or aren’t covered. This bill is not just limited to Internet sales, as it was advertised, but also includes soliciting for a transfer in “publications,” which are poorly defined in the Toomey-Manchin amendment. Senator Toomey says this measure throws some bones to gun owners, but without it being clear what it takes away, how can we possibly support it?

Can be found at Senator Toomey’s website. First, GOA’s assertions that doctors can put people in NICS is completely false. So is their assertion that being on anti-depressants will get you in the database. This is the same crap we heard during the last bill after Virginia Tech. With that out of the way…. I’m going to try to give you my best interpretation of the language, with no spin or chicken little routine.

(t)(1) Beginning on the date that is 180 days after the date of enactment of this subsection and except as provided in paragraph (2), it shall be unlawful for any person other than a licensed dealer, licensed manufacturer, or licensed importer to complete the transfer of a firearm to any other person who is not licensed under this chapter, if such transfer occurs-

(A) at a gun show or event, on the curtilage thereof; or

(B) pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.

This basically sets forth what is illegal under the Toomey-Manchin proposal. The definitions come later. I’d note that this only seems to make transfers between non-licenees (e.g. private individuals) subject to checks if (A) or (B) apply. Next we look at the exceptions:

(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-

(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and

(ii) the transfer was conducted in compliance with the laws of the State;

(C) the transfer is made between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins, if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law; or

(D) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986.

By my reading, those exceptions apply to transactions conducted at guns shows, on the Internet or in publications, because transfers between unlicensed individuals is only prohibited under those circumstances. BTW, (D) refers to NFA transfers.

Paragraph (4) gives the Attorney General limited powers to promulgate regulations. They stipulate a number of things the Attorney General may not do, which addresses some of the concerns with S.374. I’d encourage folks to game through this one. This is important language.

Paragraph (5) and (6) applies PLCAA civil immunities to gun show promoters and to people who operate “interactive computer services,” which in this case would mean sites like Gunbroker.com.

Paragraph (7) is where we get to definitions.

(7) For purposes of this subsection, the term ‘gun show or event’-

(A) means any event at which 75 or more firearms are offered or exhibited for sale, exchange, or transfer, if 1 or more of the firearms has been shipped or transported in, or otherwise affects, interstate or foreign commerce; and

(B) does not include an offer or exhibit of firearms for sale, exchange, or transfer by an individual from the personal collection of that individual, at the private residence of that individual, if the individual is not required to be licensed under section 923.

A flea market where a few guns go out wouldn’t be affected. Selling a gun at a huge flea market? Better run around and count! Likewise, most yard sales would not be. This doesn’t create any liability for organizers or promoters that I can tell. As for advertised sales on the Internet and in publications, I’m not pleased that there’s not more clarification on what a “publication” is, or what types of medium on the Internet are covered. Club newsletters would seem to apply. What about a bulletin board at a club? Sending an e-mail to a friend? I think the Internet/Publication language is more inadequate than the gun show language.

It gets interesting in Section (c) of the Amendment, which is supposed to offer protections from a national gun registry, except that the proposed new 18 USC 923(m) fails to forbid the attorney general from compiling a registry from all the information from closed FFLs that’s residing on microfilm in a huge warehouse in West Virginia. This is a huge oversight! By spelling out what he can’t do, you better be thorough, or the implication is that he can do it.

Now we get to penalties:

(8) Whoever makes or attempts to make a transfer of a firearm in violation of section 922(t) to a person not licensed under this chapter who is prohibited from receiving a firearm under subsection (g) or (n) of section 922 or State law, to a law enforcement officer, or to a person acting at the direction of, or with the approval of, a law enforcement officer authorized to investigate or prosecute violations of section 922(t), shall be fined under this title, imprisoned not more than 5 years, or both.”; and

(2) by adding at the end the following:

(q) Improper Use of Storage of Records.-Any person who knowingly violates section 923(m) shall be fined under this title, imprisoned not more than 15 years, or both.

Section (8) makes no sense to me, and I think they might be missing a word. Either way, it sounds like the intent was to criminalize the transfer only if it ended up to be to a prohibited person, and to exempt if you’re law enforcement, or being directed by law enforcement, but I think they are missing some “not” language in there. Either way, this would make Bloomberg’s stings illegal if I’m reading what they mean rather than what they said correctly.

UPDATE: I forgot to mention. The penalty only seem to apply if you actually sell to someone who’s prohibited. If someone sold his buddy a gun not knowing there was a law against that kind of thing, because his buddy saw he posted it somewhere and said “Hey, don’t sell that online, I’ll buy it,” the penalty would only apply if his buddy was actually prohibited. At least that’s how I read it.

UPDATE: I’m striking out the above language in light of this comment. If this is indeed the case, selling to an undercover cop, or an undercover cop’s informant, also invokes the felony penalty.

The rest of the bill seems to be to be pretty much as advertised. Anyone else feel free to read over the parts I haven’t talked about and see if I missed anything.

UPDATE: I’m not sure how I feel about the state license exemption. For instance, in the proposed new 18 USC 922(t)(2)(A)(i):

… except that when processing a transfer under this chapter the licensee may accept in lieu of conducting a background check a valid permit issued within the previous 5 years by a State, or a political subdivision of a State, that allows the transferee to possess, acquire, or carry a firearm, if the law of the State, or political subdivision of a State, that issued the permit requires that such permit is issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by the unlicensed transferee would be in violation of Federal, State, or local law;

The language here is nearly identical to the current 18 USC 922 (t)(3)(A)(ii), which would just move up to (s), the current (s) being moot and proposed to be struck. The language in the proposed bill is different, but says it applies to “a transfer under this chapter.” It is not limited just to that subsection. The language is different. So which one controls? Does it change if you’re processing a transfer under proposed subsection (s) or subsection (t)? Shouldn’t those be harmonized, or rather, wouldn’t it better just to fix the one in (s), move it up, and call the subroutine from (t)? It’s also not clear to me that this would change much in terms of how ATF treats state licenses as NICS equivalents. I’m not very knowledgable in this area though.

UPDATE: If I had to sum up the effects of this amendment in a sentence: “If you’re selling a gun to someone you really don’t know, you better do it through an FFL.” The idea that this only applies to Internet sales or gun shows is really nebulous. Also, if you know your friend is a cop, don’t sell it to him.

UPDATE: John Richardson has some analysis here.

Eugene Volokh details a pair of cases making their way through the 9th Circuit courts challenging California’s prohibition banning mental health care providers from trying to change sexual orientation for minors. If the 9th Circuit Court of Appeals ends up hearing this case, and upholding the law, you can bet that this decision will be brought up in the appeals for the challenges to the Florida law which bans doctors from asking patients about gun ownership (already held unconstitutional in District Court). My personal opinion is that both laws are unconstitutional, but it does illustrate the notion that there are many on the right and left that aren’t particularly dedicated to the notion of free speech, and completely willing to use government to suppress speech they find repugnant.

In the previous thread about someone trying to foolishly mount a challenge to NFA and all the other federal gun laws, the topic of US v. Rock Island came up. I went searching through my archives, convinced I had done a post about this, but it turns out I hadn’t, and that it was just a long running argument in the comment section. So I figured it was worth a full post just to get better information out there about the impact of this case. There’s a lot of folks on the Internet touting Rock Island as a case which invalidates the National Firearms Act, and creates some not-widely-known loophole that makes machine guns legal, either broadly, or in the District it was decided in.

But if something sounds too good to be true, it probably is. United States law regulating machine guns rests on two prongs. The first prong is the National Firearms Act, passed in 1934 as an exercise of Congress’ power to tax. The second is the Gun Control Act of 1968, as amended by the Firearms Owners Protection Act of 1986, which contained the infamous Hughes Amendment. The Gun Control Act is based on Congress’ powers under the commerce clause.

In 1934, when the National Firearms Act was passed, it was believed that outright gun bans would be constitutionally problematic, both from the point of view of the Second Amendment, but also from the point of view of valid exercises of Congress’ powers to regulate interstate commerce. The proponents of the National Firearms Act decided to rely on the Congress’ power to tax, which was used, and upheld, to regulate narcotics under the Harrison Act, and it was relatively less risky than relying on the commerce power. The $200 tax on manufacture and transfer, in 1934 dollars, effectively doubled the price of existing machine guns, and was considered an effective means of discouraging their possession by mere peons like us.

By the time 1968 rolled around, the federal government’s ability to regulate using its interstate commerce power had been greatly expanded. The Gun Control Act of 1968 was purely a criminal provision, and not in any way connected to the taxing power. Additionally, the 1986 inclusion of the Hughes Amendment, codified under 18 USC 922(o), created a special problem for prosecution under the NFA provisions for machine guns manufactured after May 19, 1986.

In Rock Island, the US Attorney simply made the mistake of prosecuting under the wrong section of the United States Code, when they charged someone under the NFA for failing to pay a tax it refused to collect. From the case:

The superseding indictment alleges that Defendants committed acts in respect to the making and registration of “firearms,” i.e., machineguns,^[1] in the years 1987 and 1988 which violated parts of the National Firearms Act, Chapter 53 of the Internal Revenue Code, 26 U.S.C. §§ 5801 et seq. Specifically, Count I alleges in part that Defendants conspired “(a) to manufacture firearms in violation of Title 26, United States Code, Sections 5822^[2] and 5861(F) [AND] (B)^[3] to knowingly deliver into interstate commerce firearms in violation of Title 26, United States Code, Sections 5822 and 5861(j)….”^[4] Count 2 alleges that in 1988, Defendants made machineguns “in violation of the registration provisions of Title 26, United States Code, Section 5822,” which is alleged to have violated 26 U.S.C. § 5861(f). Count 3 alleges that Defendants delivered into interstate commerce the same machineguns as in Count 2, and that these machineguns “had not been registered as required by the provisions of Title 26, United States Code, Section 5822,” in violation of 26 U.S.C. § 5861(j).

Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act (“NFA”) have been upheld by the courts under the power of Congress to raise revenue.^[5] However, 18 U.S.C. § 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986.^[6] Thus, § 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis.

This is where people get confused when they read Rock Island. It’s conventional wisdom among gunnies that machineguns are regulated under the National Firearms Act, and that is true. But lesser understood is the fact that they are also regulated under the Gun Control Act. The GCA is part of the US Criminal Code, unlike the NFA which belongs to the Internal Revenue Code. A lot of folks read “left the registration and other requirements of the National Firearms Act without any constitutional basis,” and assume this to mean the regulations regarding machine guns have been struck down. They have not been. If you manufacture a machine gun without a federal license to do so, you will go to jail.

What Rock Island said was, because 922(o) (Hughes Amendment) prevents the Treasury from accepting any payment of tax under the NFA, for any machine gun not legally possessed or manufactured before May 19, 1986, that the government can then not turn around and charge someone for failing to register the machine gun, and pay any tax, because the government admits that it refuses to collect that tax and accept the registration. That only means that the government may not prosecute this crime under the National Firearms Act. It is still empowered to prosecute individuals under the Gun Control Act, 18 USC 922(o). Since the United States lost the Rock Island case, that’s been standard operating procedure for US Attorneys in cases involving machine guns manufactured after May 19, 1986.

For someone possessing a machine gun legally possessed or manufactured before May 19, 1986, but not legally transferred, they may still be prosecuted under the National Firearms Act, because the government will accept the tax in that instance. In short, if I buy my friend Jason’s submachine gun from him privately, I’m guilty of violating the National Firearms Act, because the government would have accepted that tax for that transfer. If I take my AR-15 and convert it to an M16, I’m guilty of violating the Gun Control Act, Section 922(o), not the National Firearms Act, because that was obsoleted by the Hughes Amendment for guns manufactured after the magic date.

So the courts weren’t creating any loophole. They merely ruled that if the United States wishes to prosecute someone for possession or transfer a machine gun that was not lawfully registered before May 19, 1986, they had to do so under the Gun Control Act, not the National Firearms Act. I hope this makes sense. Rock Island does not create any loophole in the machine gun laws, and I thought it was worthwhile to clear this up before someone believes this Internet rumor, tests it, and ends up in federal prison.

I’ve shot an AR-15 pistol with a cheek weld on the buffer tube, and I didn’t find it recoiled that heavily, so I don’t think this would be as uncomfortable as it looks.  As to whether it can get around the NFA requirement, as Uncle discusses, I wouldn’t care to wager. ATF has ruled that anything that makes it “designed” to be shot by two hands is an “Any Other Weapon” (AOW), not a pistol, so foregrips on pistols make it a Title II firearm, but hand guards are fine. The risk here, as I see it, is that it would be easy for ATF to suggest that the chin stock makes the firearm such that it’s no longer “designed to be held and fired by the use of a single hand.,” which is the legal definition of a pistol. If something isn’t a rifle, shotgun, pistol, revolver, or a machine gun, it’s an AOW. It could go either way, in regards to whether it’s an AOW. The issue is “designed.” You can cheek weld a buffer tube, because the buffer tube isn’t “designed” into the gun for that purpose. But ATF also allows handguards over the barrel of a pistol, such as this. So who knows? And let’s not even get into how a pistol grip shotgun is neither a pistol, nor a shotgun, under federal law, but also can’t be an AOW.

Once you realize how much ambiguity there is in the federal statutes regulating firearms, the idea of a hostile administration who is hell bent to screw us, because, you know, he doesn’t ever have to face voters again, should scare the hell out of you.