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Old November 3, 2014, 02:00 PM   #26
Tom Servo
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That means its recorded in the dealer's books. Maybe on the 4473 as well. (Dealers, correct me if I'm wrong, please). I understand that the background check phone call requires an id# case# or something like that. I think the number of the 4473 is what's usually used.
The manufacturer/distributor keeps a record of where they send a gun. The dealer keeps a record of its receipt. Upon disposition, the dealer keeps the form and notes the disposition in his books. There's a chain of custody there.

The actual number given by the NICS call center is a NICS Transaction Number (NTN), which is simply a tracking number for the actual check. No information about the gun itself is reported beyond handgun/long gun/other.

In most states, that's the end of it. If the firearm needs to be traced, the BATFE can follow the chain of custody. Otherwise, there's no way for Sheriff Joebob to know what guns Mr. Smith owns.

However, Washington state already has a handgun registration scheme of sorts (see Section 9). So yes, if I want to transfer an older pistol, going through a dealer will generate a registration of that gun that didn't exist before.
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Old November 3, 2014, 02:33 PM   #27
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If it passes I suppose the most appropriate court challenge would be to have the word "transfer" specifically described.
It is specifically defined.

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(25) "Transfer" means the intended delivery of a firearm to
another person without consideration of payment or promise of payment
including, but not limited to, gifts and loans.
Everything from "Hold this while I tie my shoes" to "Here you go, keep it"
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Old November 3, 2014, 06:40 PM   #28
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From the 1986 FOPA:
"No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary’s [1] authority to inquire into the disposition of any firearm in the course of a criminal investigation. "

Emphasis mine.

The law doesn't require certain records to be maintained, but nothing stops states like New Jersey from doing it. And they do for handguns.
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Old November 4, 2014, 10:13 AM   #29
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Well I think A) you're reading it wrong. It says nothing passed after FOPA MAY require transfering records to a Federal or State facility. So those records (i.e. 4473 forms) required by the whole gun purchase system we have now are required to be kept, but the government can't make anyone transfer those records to to government except as mandated BEFORE FOPA(i.e. possibly how closed down FFL's have to send their bound books in once they go out of business)

And B) That doesn't matter. The records in the handgun registry are most likely not part of the "this chapter" stuff. In Washington we also have (I believe) a handgun registry that's pretty under the radar. But that registry is not created using federal forms and the like, there's an additional state form that creates the registry entry as near as I can tell.
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Old November 4, 2014, 11:42 PM   #30
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The results aren't all in, but it doesn't look good. 60/40% in favor of I-594, 45/55% against I-591.
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Old November 5, 2014, 08:13 AM   #31
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Yeah, I'm pretty much hoping The Second Amendment Foundation in Bellevue already has whatever legal documents they need in their print queue this morning.

As for 591, I'm not too sad to see that fail.
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Old November 5, 2014, 10:31 AM   #32
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Originally Posted by JimDandy
...But that registry is not created using federal forms and the like, there's an additional state form that creates the registry entry as near as I can tell.
And that is exactly how it's done in California. We fill out a state form in addition to the 4473 when we buy a gun.

In any case, the latest I've seen is that I-594 did win, so the gun owners of Washington State lose. But this can also be something of a lesson for all of us about political reality. There might very well be significant public support for Universal Background Checks (UBC), and we need to understand that and find ways to deal with it.
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Old November 5, 2014, 10:47 AM   #33
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We've all known for a while the support for universal background checks on sales. Pew and Gallup has had support for that at Amendment Passing level for quite some time. I don't personally mind them, but then I buy almost all my firearms new anyway for the warranty. The only time I buy used is when it's out of production and you can't buy new.

The real sad lesson is how little the voters read and research what they vote on. 594 went way beyond sales. I imagine the courts around here don't open until 9, but I truly hope the Second Amendment Foundation will be walking in the door at 9:01 to file. Extending them to temporary transfers is just ridiculous.
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Old November 5, 2014, 11:42 AM   #34
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There might very well be significant public support for Universal Background Checks (UBC), and we need to understand that and find ways to deal with it.
One way to challenge it might be this: lacking a registry, the law can't be enforced with consistency. Its application would be subject to whim and unfairness. Showing inequal enforcement might be an argument.

The problem is, the voters are easily and deliberately misinformed on what "universal background checks" entail, and I worry that a few people are going to be convicted before its problems come to light.
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Old November 5, 2014, 11:43 AM   #35
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60/40? That can't be right. I thought 90% of people were in favor of background checks?!?

Is there a way for the firearms community to beneficially use the results of I-594 to dispel that lie? Does it matter?
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Old November 5, 2014, 12:02 PM   #36
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60/40? That can't be right. I thought 90% of people were in favor of background checks?!?
Not at all, as a number of people, but not enough, read enough to figure out that the background checks would be applied to more than just sales. So it could be theorized the 30% difference is the ones smart enough to understand the difference between a sales background check and a transfer background check.
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Old November 5, 2014, 12:07 PM   #37
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One way to challenge it might be this: lacking a registry, the law can't be enforced with consistency.
I don't think so Tom. There's no registry for retail sales, and the current background check system isn't considered inconsistently enforced by most- especially most who get to make that Judge-ment.

I hope the easiest grounds is the biggest problem I have with it. Extending it o temporary transfers. If nothing else it fiddles with property rights. Possession is one of the little sticks. Telling me I can give my Dad/Brother/Mom/Immediate Family Member a gun, but he/she/they can't hold on to mine for a few minutes sounds like it fiddles with that property stick in a way that can't be supported.
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Old November 5, 2014, 12:16 PM   #38
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Originally Posted by JimDandy
...The real sad lesson is how little the voters read and research what they vote on. 594 went way beyond sales....
Of course not, and I'm surprised that any of us are surprised by that. The public focused, predictably, on the simple goal of keeping guns out of the hands of the wrong people. The initiative process is a very poor tool for dealing with subtleties and details. It's an all or nothing proposition. At least in the legislative process there are multiple opportunities for tweaks.

Quote:
Originally Posted by Tom Servo
...One way to challenge it might be this: lacking a registry, the law can't be enforced with consistency...
I fear that as a legal argument that's a stretch; and as a political argument it invites registration.
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Old November 5, 2014, 12:32 PM   #39
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I fear that as a legal argument that's a stretch; and as a political argument it invites registration.
Washington already has a form of state-level handgun registration at the point of sale. In fact, by requiring transfers to go through a dealer, they'll be pooling many more guns into that.

What they don't have is a total registry of all guns that would allow them to know whether a transfer took place before the law went into effect. To enforce the provisions of I-594, that would be a necessity.

(I'm not the first one to bring that up. The Washington Council of Police and Sheriffs, who vehemently opposed this, have already made the same argument.)

To Joe Sixpack, "universal background checks" are one thing. Registration is something totally different and a lot harder to sell.

So, we're left with a conflict. Where the legal challenge may lie is in unequal treatment under law. As it stands, enforcement will be slapdash and subject to the whims of prosecutors.
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Old November 5, 2014, 12:44 PM   #40
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Originally Posted by Tom Servo
...What they don't have is a total registry of all guns that would allow them to know whether a transfer took place before the law went into effect. To enforce the provisions of I-594, that would be a necessity....
Perhaps not. California has gotten along without it for 20+ years. The dealer transfer requirement was put in place around 1990 or 1991, but up until this years only handguns, not long guns, were registered on transfer. Although a few years ago new residents became required to register handguns they brought with them when they moved to California, and there's provision for voluntary registration of unregistered guns, God only knows how many unregistered guns are lawfully owned in California.
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Old November 5, 2014, 01:08 PM   #41
carguychris
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Originally Posted by Tom Servo
What they don't have is a total registry of all guns that would allow them to know whether a transfer took place before the law went into effect. To enforce the provisions of I-594, that would be a necessity.
On that note... given that I-594 criminalizes both parties engaging in an unlawful informal transfer, if the gun doesn't show up in the WA ad hoc registry, it seems to me that there's a serious and quite obvious 5A issue with successfully prosecuting these crimes, unless there are eyewitnesses and/or one of the parties turns state's evidence- most likely in exchange for immunity.

Unequal prosecution indeed.

[Maybe I'm just stating the obvious.]
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Old November 5, 2014, 01:16 PM   #42
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I wasn't aware it criminalized both sides. I only saw the same illegal to transfer, nothing about illegal to receive. But I may have missed that in everything else that was wrong with it.
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Old November 5, 2014, 01:38 PM   #43
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Originally Posted by JimDandy
I wasn't aware it criminalized both sides. I only saw the same illegal to transfer, nothing about illegal to receive.
Here's my interpretation, with my emphasis in boldface and notes in [brackets]:
Quote:
Sec. 3. A new section is added to chapter 9.41 RCW to read as follows:...

[Subsection (1) omitted]

(2) No person shall sell or transfer a firearm unless:
(a) The person is a licensed dealer;
(b) The purchaser or transferee is a licensed dealer; or
(c) The requirements of subsection (3) of this section are met.

(3) Where neither party to a prospective firearms transaction is a licensed dealer, the parties to the transaction shall complete the sale or transfer through a licensed dealer as follows:

(a) The seller or transferor shall deliver the firearm to a licensed dealer to process the sale or transfer as if it is selling or transferring the firearm from its inventory to the purchaser... [remainder of section omitted]

[Subsection (b) re: dealer obligations omitted]

(c) The purchaser or transferee must complete, sign, and submit all federal, state, and local forms necessary to process the required background check to the licensed dealer conducting the background check.

[Subsections (d) & (e) omitted]

...

Sec. 9. A new section is added to chapter 9.41 RCW to read as follows:

Notwithstanding the penalty provisions in this chapter, any person knowingly violating section 3 of this act is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW. If a person previously has been found guilty under this section, then the person is guilty of a class C felony punishable under chapter 9A.20 RCW for each subsequent knowing violation of section 3 of this act.
Sec. 9 specifies that "any person" violating the chapter can be found guilty. In an unlawful informal transfer, the seller or transferor violates 3(3)(a), while the purchaser or transferee violates 3(3)(c). [As an aside, the dealer can also violate (3)(b) and (3)(d); only (3)(e) is clearly discretionary ("The licensed dealer may charge a fee...")]

If someone with more knowledge of WA law wants to correct me, please do, I've been wrong before.
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Last edited by carguychris; November 5, 2014 at 01:41 PM. Reason: minor reword
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Old November 5, 2014, 01:45 PM   #44
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Originally Posted by JimDandy
[Transfer] is specifically defined.

Quote:
(25) "Transfer" means the intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans.
Everything from "Hold this while I tie my shoes" to "Here you go, keep it"
Actually, after rereading this law, I'm curious if the phrase "intended delivery" will be the major item of contention. In my mind, "Hold this while I tie my shoes" is NOT intended delivery, as "I" am still present, and "I" clearly intend to get my gun back. It is not "my" intent for the person holding the gun to use it or leave with it.

[Jim, I'm not trying to intentionally pick on you. ]
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Old November 5, 2014, 04:04 PM   #45
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[Jim, I'm not trying to intentionally pick on you. ]
I didn't think you were. Living in WA, I've seen a lot of people try and claim a temporary transfer like that is allowed. I have zero faith they're right. Handing someone something on purpose, even temporarily, is a intended delivery.

You can ask the lawyers in here, but I haven't seen one in here yet ever talk about a law that uses the word "transfer" and not point out transfer is possession not title (if it came up).

Even if you could find a judge willing to play the semantics game over "intentional deliver" as it's not defined in the initiative, you'd default to the common definition of the time.

Now you just have to figure out how to get the judge to believe you didn't have to take your firearm to the guy who's going to hold it while you tie your shoes at the place they're going to hold it, when he held it while you tied your shoes at the place they held it.
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Old November 5, 2014, 04:42 PM   #46
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I guess my question here is, if transfer doesn't exempt temporary transfers such as at a range during a class, how then can this not be viewed as infringing on 2A rights by putting undue hardship on citizens owning guns? Isn't that enough for a challenge?
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Old November 5, 2014, 05:01 PM   #47
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It's got a range exemption. It doesn't have a classroom or shooting on your farm or in the woods exemption.
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Old November 5, 2014, 05:04 PM   #48
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But the wording makes that sound like it is only for guns STORED at the range, no? So only rental guns would be exempted. And only established ranges, at that. What about in the woods?

Frankly, I have no issue with universal checks (though I voted against 594) - I have a problem with the broad definition of transfers, and the lack of a loan period.
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Old November 5, 2014, 05:13 PM   #49
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If 'Possession ' under federal case and statute law means you have committed a felony by allowing a felon in a home where he might be able to handle a firearm, 'Transfer' is not going to mean only sales or gifts, it's going to mean 'look at this new shotgun', until the Legislature changes it, in two years. Until then, be wary of strangers at the range.
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Old November 5, 2014, 05:42 PM   #50
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Originally Posted by JimDandy
Even if you could find a judge willing to play the semantics game over "intentional deliver" as it's not defined in the initiative, you'd default to the common definition of the time.
True, and let me clarify one thing in particular: I would NOT want to be the test case.
Quote:
Originally Posted by RampantAndroid
So only rental guns would be exempted. And only established ranges, at that. What about in the woods?
(1) Yes, I think. (2) Yes, clearly. (3) Verboten.

Another kicker:
Quote:
Originally Posted by RampantAndroid
I have a problem with the broad definition of transfers, and the lack of a loan period.
Other issues upon reading the law more closely...

The law defines a "dealer" as a "...a person engaged in the business of selling firearms at wholesale or retail who has, or is required to have, a federal firearms license under 18 U.S.C. Sec. 923(a)." (Emphasis mine.) An 03 Collector or C&R FFL is licensed under 18 U.S.C. Sec. 923(a) but, by definition, is NOT authorized under federal law to engage in the business of buying or selling firearms; his or her license can ONLY be used to enhance a personal collection. Thus, as I read it, C&R FFL's are potentially subject to the same regulations as non-licensees for transactions that occur wholly or partially in-state. (At least they can still get discounts at Midway and Brownell's, or transfer firearms out-of-state. )

The law uses the NFA definition of "antique" and NOT the 68 GCA definition. Thus, modern-style muzzle-loaders (as opposed to replicas of pre-1899 firearms) and pre-1899 fixed-cartridge firearms are apparently NOT exempted from the BG check requirements.

This one's partially a legal question. Do counties in WA have the statutory authority to formally authorize shooting ranges outside of a municipality, and if so, are they required to do so? How does a shooting range outside of a municipality assure patrons that the temporary transfer exemption for a range "authorized by the governing body of the jurisdiction in which such range is located" is in force? Can a WA county effectively outlaw temporary range transfers by simple inaction- by not enacting a formal process to authorize shooting ranges?

FWIW I think one of the primary potential weaknesses of this law, in terms of overturning it in court, is that it does NOT exempt off-duty LEO's, CPL holders, or (potentially) C&R licensees- persons who can be reasonably presumed to have the lawful right to possess firearms. Applying the BG check requirement to these persons is absurd.
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