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Old March 25, 2013, 03:24 PM   #1
JimDandy
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More questions on S.374 The Fix Gun Checks Act of 2013

I don't see an exemption for the obvious every day sorts of things we gun owners do every day we use our guns socially-

Stuff along the lines of but not exactly like:

Having someone in your party hold your rifle while you tie your shoes.
Loading your firearms into their trunk if you're carpooling.

For that matter-

If you do carpool, would that be a transfer? In one of the other posts, it was discussed that you can't leave a firearm in the common areas if your roommate is a prohibited person. It must be locked up in on of your areas. If your rifle is in my truck, and you don't have my car keys, did we just transfer?

If I fly to South Dakota with my new over-under, and check it on the airline, how many baggage handlers did I just transfer the firearm to? Now, I imagine there's some sort of exemption somewhere else in the laws for this situation, or every truck driver going from the Colt plant to a wholesaler to a retailer is now a criminal- Heck, for that matter, will I need background check to get my shotgun BACK from the Airline?
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Old March 25, 2013, 03:46 PM   #2
carguychris
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Quote:
I don't see an exemption for the obvious every day sorts of things we gun owners do every day we use our guns socially...
I believe that's because those exemptions aren't there.

As drafted today, the bill basically makes it a crime to hand someone else a gun unless (a) you're inside the gun owner's home or curtilage, (b) you're lawfully hunting, (c) you're at an organized shooting range, (d) you're at a target shooting competition, or (e) the gun is being examined solely for potential purchase.

It's unbelievably draconian. I don't expect it to survive without being heavily amended. I'm cynical but not THAT cynical.
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Old March 25, 2013, 04:30 PM   #3
JimDandy
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What about the airlines? Will they fall under the common carrier exemptions elsewhere? Would we need a background check to pick up our shotgun/rifle from checked baggage- i.e. (A) shall include a sale, gift, loan, return from pawn or consignment, or other disposition; (emphasis mine)

I wonder how much tourism South Dakota and Iowa would lose if you had that headache flying there for a pheasant/white tail hunt.
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Old March 25, 2013, 08:01 PM   #4
Bartholomew Roberts
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There is a temporary exemption that makes no sense as written. It allows a prospective transferee to temporarily examine or evaluate a firearm while in the presence of the prospective transferee.

I think they meant to write "prospective transferor" in the last two words; but that isn't what Thomas shows. Even some of the exemptions are hopelessly confusing, Dave Hardy was speculating that as written the "organized shooting range" exemption would not cover a range owned by an individual or partnership. The bill is a total mess.
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Old March 26, 2013, 09:51 AM   #5
JimDandy
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Is a Driveway curtilage? A common parking lot at an Apartment Building?
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Old March 26, 2013, 10:15 AM   #6
Colokeb
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Got adopted in Colorado

If you read the Colorado law just adopted and the Fix Guns act, you will see that they contain the same wording.

What is interesting about CO is the C&R elligible exemption.

Last edited by Vanya; March 26, 2013 at 10:47 AM. Reason: we don't do "liberal," etc.
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Old March 26, 2013, 05:09 PM   #7
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The fact they allow a prospective transferee to handle a gun for evaluation purposes indicates they fully thought about other types of transitory transfers and decided not to exempt those. So, handing a gun to a buddy while you tie your shoes or step out of a boat would be a transfer and could land you in hot water.
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Old March 26, 2013, 07:20 PM   #8
JimDandy
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Yes, though I can't imagine when you would be shooting from a boat and not hunting. I suppose SOMEONE SOMEWHERE might shoot trap from a boat to skill up for Duck Season but...

And again for you actual lawyers, am I correct in this? A driveway could be argued as curtilage, but it would be exceedingly difficult. An apartment parking lot wouldn't have a snowball's chance in hell- all of this is based on 4A restrictions on Search and Open Field doctrine

Your fenced in back yard is curtilage, but the driveway is open field as it's the most obvious path to "enter and knock" the dwelling-home?
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Old March 27, 2013, 05:44 PM   #9
Bartholomew Roberts
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Curtilage is typically the area immediately surrounding your home and different jurisdictions have different case law defining what it is. One important aspect of this is that say you have 40 acres and a rural home. A transfer that is perfectly legal on your front porch may be illegal if conducted 100 yds to the West, even though you are still on your own private property.

The Colorado law uses the same language? That probably is Bloomberg at work rather than coincidence. It is a classic problem of centralized government - people who don't even understand what they are trying to regulate writing the laws.
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Old March 27, 2013, 07:29 PM   #10
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Right, but it's my impression that the Supreme Court and/or 9th Circuit precedent in 4th Amendment cases created the Open Field doctrine/test. So as most driveways aren't fenced in, and are part of the most direct path from the public area of a street or sidewalk, to the main entrance of the house means a law enforcement officer is not engaged in a search in that area.
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Old March 27, 2013, 08:16 PM   #11
KyJim
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Quote:
So as most driveways aren't fenced in, and are part of the most direct path from the public area of a street or sidewalk, to the main entrance of the house means a law enforcement officer is not engaged in a search in that area.
Probably correct but it gets complicated and is very fact specific with some grey areas. By the same token, sometimes an "intrusion" into a curtilage is okay. For example, a police "knock and talk" is where the police come to the front door, knock, and then ask a few questions when the resident opens the door. There is implied consent for the officer to be there since members of the public are generally allowed to knock at someone's door -- think girl scouts selling cookies. But, if you put up a fence (and a closed gate) there is probably no implied permission.

An interesting case just out from the Supreme Court is Florida v. Jardines where the majority said police can conduct a knock and talk but cannot bring a drug dog into the curtilage (porch) because there is no implied consent for entry by drug dogs. The opinion is at http://www.supremecourt.gov/opinions...1-564_5426.pdf.
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Old March 28, 2013, 08:27 AM   #12
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So a husband and wife that go shooting together, and the husband loads both rifles in the trunk, on the driveway could be arrested and prosecuted in theory?
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