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Old October 23, 2014, 11:07 AM   #1
JimDandy
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The Big Washington I-594 Thread: Direct all questions and concerns here

I-594 is pretty much the bill that failed in the Senate right after Sandy Hook, with a few alterations for the State level, and a few less exemptions.

My question for the legal scholars who follow firearms law and cases- how likely is it to survive competent (i.e. SAF or NRA not Embody-esque) legal challenge. I realize it's just a guess coming from you folks, but it's also an educated guess, and I'd like to have at least a ballpark idea. Snowball's chance in hell? 50/50? Pretty likely to get at least some of it (like BGC's for a temporary transfer) overturned?
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Old October 24, 2014, 12:34 AM   #2
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I am decidedly not a lawyer, but I'll throw in my two cents.

We don't know. This is pretty much uncharted ground. We have only recently had the 2nd Amendment acknowledged as an individual right to own arms "in common use" for lawful purposes. While that would logically extend to some of the most popular rifles in the US, there is plenty of wiggle room in Heller and MacDonald for creative antis or those who like to examine on rational basis (or what amounts to it).
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Old October 24, 2014, 07:26 AM   #3
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Raimius is correct. We've already seen magazine-capacity limits upheld as constitutional, and I'd expect universal background checks to be upheld as well.

The Heller dicta about "reasonable restrictions" left a lot on the table, and the Supreme Court has refused to hear several follow-up cases that might have clarified that.

Instead of allowing it to pass and expecting a court challenge, it would be far better if Washington residents would get mobilized and simply defeat it in the legislature. Assuming I-594 is a done deal is the best way to make sure it's a done deal.
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Old October 24, 2014, 01:03 PM   #4
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It appears that I-594 has a competing voter's initiative, I-591. Looks like gunowners in the state of WA need to get cracking on this one. If I-594 becomes law there is little chance of overturning it on appeal at SCOTUS.

A SCOTUS hearing requires the concurrence of four justices. In the last term SCOTUS refused to hear an appeal of Drake. This, despite the fact that a decision in Drake would have resolved appeals court splits.
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Old October 25, 2014, 09:23 PM   #5
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I do not see how anyone could challenge I-594 on legal grounds. Other states have background check requirements for private sales. The difference in I-594 is that it also covers all transfers; a transfer is defined as a gift or loan other than a sale.

If I-594 passes we in WA would need some clarification from the Attorney general about certain parts of the new law. Since it appears that merely handling another person's firearm (even for a few minutes) would be defined as a transfer (or temporary transfer), we need to find out how brief a time handling a firearm would be considered a bona fide transfer.

There is a matter of the exemption for using another person's firearm at an established rifle range; allowed only if the gun is kept at the range at all times. Does this mean the person borrowing/using the firearm doesn't leave the range with it or does it mean the gun is stored at the range forever?

The exemption for hunting. A person can loan a firearm to another for hunting. But I-594 says "while hunting". Does this mean the person borrowing the gun can take possession the month/week/day/hour prior to the hunt or does it mean the gun changes hands while in the game management unit?
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Old October 26, 2014, 09:17 AM   #6
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On Heller's "reasonable restrictions," it always struck me as odd that such a brilliant and ordinarily thorough Justice as Scalia would use such vague language in such a crucial portion of his ruling. Not much justification was given for that little nugget's inclusion either, if my memory of the opinion is correct; it was just sort of tossed in there to neutralize what was otherwise a compelling argument against all restrictions. Maybe Scalia didn't like where his logic was leading him...

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Old October 26, 2014, 11:52 AM   #7
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On Heller's "reasonable restrictions," it always struck me as odd that such a brilliant and ordinarily thorough Justice as Scalia would use such vague language in such a crucial portion of his ruling.
That was done in order to get a fifth justice, Kennedy, on board.
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Old October 26, 2014, 12:19 PM   #8
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Because 594 lists exceptions, that implies that everything NOT LISTED is a violation. And that includes my buddy of 20 years handing me his newest pistol to check out in his living room!

I've read it, and I see that it could be interpreted that way. Not only would the law require him to transfer the gun to a dealer, and have the dealer run the check, and transfer it to me, but the process would have to be repeated when I give the gun back!

Both of us and the gun would have to go to an FFL, TWICE. Unless we were hunting, or at a "licensed" range. And that's only PART of what makes this a bad bill.

We beat it the last time they tried, I expect we will do so again.
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Old October 27, 2014, 09:18 AM   #9
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Instead of allowing it to pass and expecting a court challenge, it would be far better if Washington residents would get mobilized and simply defeat it in the legislature. Assuming I-594 is a done deal is the best way to make sure it's a done deal.
It's a ballot measure, and already passed the time for the legislature to do anything to stop it. And I have little faith in the voters stopping it either. As someone already mentioned, there's a competing measure, 591 that says WA can't do anything more than the Federal Law does. There are polls suggesting both will pass the voters. People don't read past "Background Checks" and vote yes because they're for those things. And while that embarrassing little tidbit has been floating around for a while now, I'm not sure that will change the direction of the herd, especially now that they may stampede after Marysville Pilchuck.
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Old October 27, 2014, 10:52 AM   #10
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One report has the anti gun mouthpiece agreeing that 594 would NOT have kept the gun out of that student's hands at Marysville, and the next words out of one side of their mouth was "But that's not the point", and out of the other side of their mouth "594 will save lives".

hypocrite doesn't seem like a strong enough word...but the words that do seem appropriate won't get past the site's filters...
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Old October 27, 2014, 11:10 AM   #11
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The legislature can amend or repeal Initiatives in Washington, beginning two years after passage.
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Old October 29, 2014, 08:01 PM   #12
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I recently re-read the bill, and it appears that the family exemption only applies to "bona fide gifts". So I guess that means that if I hand my wife a gun and she immediately hands it back because it's not a gift, then we're both commiting a gross misdemeanor and a felony. Ridiculous.

This law is absolutely terrible, but it's going to pass because people will just read the description on the ballet and check "yes"; after all, who is against keeping guns out of the hands of criminals?
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Old October 29, 2014, 08:38 PM   #13
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So, if such an awful law passes, would you have to create a trust and put all your guns in that?
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Old October 29, 2014, 09:04 PM   #14
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So, if such an awful law passes, would you have to create a trust and put all your guns in that?
Good question. I imagine we'd see an opinion that guns would have to be transferred from the trust to each person in possession, then transferred back when the person relinquished possession.

Of course, Washington residents do have an option to render that a theoretical point at the polls next Tuesday.
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Old October 31, 2014, 06:37 AM   #15
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The voters will pass I-594 without batting an eye, for the simple fact of the "we have to do something!" knee-jerk mentality, and what boggles my mind is the fact that criminals don't obey laws, and one more law/charge isn't going to deter them, just as I-594 wouldn't have made a bit of difference in the events that happened in Marysville, and to top it all off it will make criminals out of law abiding firearm owners by simply making what once perfectly legal activities, into crimes. i'm starting to seriously think that common sense is dead in this state and country. , as to the topic of thread, there is so much "legalese" and gobblity guck in the 18 pages of I-594, not real sure a legal challenge would be successful, and would take at least years to over a decade just to make it through the court process, and to find out that it will stand because of the "vagueness" in the Heller Ruling.
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Old October 31, 2014, 12:37 PM   #16
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unless there is some slam-dunk flaw which invalidates the entirety of 594, it may not be productive to challenge it at this time.
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Old November 1, 2014, 12:54 PM   #17
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If it passes I suppose the most appropriate court challenge would be to have the word "transfer" specifically described.

Most chapters in the RCW contain a "definitions" section which does just that in defining the legal/intended definition of terms used in the individual statutes.

If it were finally come down to the term being defined as "transfer of ownership", I could easily live with 594.

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Old November 3, 2014, 12:22 AM   #18
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Quote:
Originally Posted by ATN082268
Current Federal background gun checks can be held for at least 24 hours and any law enforcement can have access to it during that time. Although establishing a gun owner registry, at the Federal or State level is prohibited, it wouldn't be a difficult thing to do (and hide).
Are you talking about establishing a registry of gun owners, or a registry of what specific guns each owner has? Because it's hard to establish a secret gun registry when there often is no information on what make and model of firearm is being sold, what the serial number is, or how many total guns are being purchased.

When a dealer calls in a background check to the FBI NICS, there is no information given about the specific firearm other than whether it's a handgun, long gun, or other (receiver, silencer, etc.). And unless you're buying two or more handguns within a five-day period, they have no idea how many of each type of firearm you're buying (there are specific reporting requirements for certain rifles sold in states bordering Mexico, but I'm not sure of the details on that).

My point is that a lot of the time there is absolutely no way for the government to establish a secret registry through background check data because there's often no data transferred regarding the specific firearm you purchased. Every firearm I've bought was from a dealer who called in NICS checks and didn't use the computer system. So the only thing the feds know is how many times I've been background checked and what type of firearm I was background checked for, but they have no idea how many long guns or "others" I was buying at one time, and they have no idea as to the specifics of make, model, or serial number of each firearm. The only way they can find that out is to directly investigate me by contacting each dealer where I purchased each firearm.
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Old November 3, 2014, 12:30 PM   #19
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One report has the anti gun mouthpiece agreeing that 594 would NOT have kept the gun out of that student's hands at Marysville,
Student's dad is a reserve cop no? No mention of exemptions for cops, reserve cops, and retired cops in a whole lot of gun control of various states?
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Old November 3, 2014, 12:53 PM   #20
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Originally Posted by ATN082268
...it really wouldn't be a stretch to make it mandatory to include stuff like specific data on what gun(s), ammunition, etc were purchased at the time of the check.
IIRC this sort of data-gathering during a NICS check is specifically prohibited by federal law, although I'm feeling too lazy to look up the citation at the moment.
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Old November 3, 2014, 01:27 PM   #21
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I'm feeling too lazy to look up the citation at the moment.
There are two prohibitions on registration. The first is in the 1986 FOPA:

Quote:
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 authority to inquire into the disposition of any firearm in the course of a criminal investigation.
The second is in the Brady Act, Section 103(i):

Quote:
No department, agency, officer, or employee of the United States may (...) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922 (g) or (n) of title 18,United States Code or State law, from receiving a firearm.
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Old November 3, 2014, 01:43 PM   #22
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Considering that, despite laws against it there was fairly recently a flap about some govt agency (FBI?) keeping the data (that is supposed to be destroyed in 24hrs?) and arguing how they needed to keep it for 90 days (at least), I have my doubts about whether or not they could create a (technically illegal) registry.

Here's something to consider, about 594 creating a registry, It requires all transfers to go through an FFL dealer. 594 says the dealer transfers to the new possessor/owner as if he were selling the firearm.

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.

And for a handgun, I think WA state has its own form as well. Regardless of the specific mechanism, the DEALER has some record of who, what, and where you live. While the dealers records don't give them a database for a registry TODAY, they do provide the base material (data) that could be used to build such a system in the future.

ALSO, since 594 requires ALL transfers to go through an FFL dealer, it means that huge numbers of guns that are NOT in any system today WILL be in the records once they change hands, and from then on, forever more.

That old Colt SAA or granddaddy's Winchester, or other guns that have been in private hands for generations, if not centuries before any record keeping requirements existed in law will be put in the system, along with their new owners.

We all know the government's record when it comes to following their own rules. IF 594 isn't a push for a MASSIVE increase in registration, what is?
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Old November 3, 2014, 02:00 PM   #23
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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   #24
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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.

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"
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Old November 3, 2014, 06:40 PM   #25
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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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