View Single Post
Old June 25, 2014, 08:48 AM   #78
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,819
Quote:
Originally Posted by JimDandy
I wonder where I fit in. I'm a gun guy. I believe UBC can be done without universal registration, and I'm against registration on privacy grounds even more than 2A grounds.

If UBC are for transfer of title go through the same current system retail Point of Sale does (NICS, 4473, FFL keeps the form not ATF, etc.) it wouldn't require registration, and would be as enforceable as the retail background check laws that both sides currently consider enforceable.
I disagree, JimDandy. UBCs are not enforeceable without registration. Consider what happens after someone is alleged to have transferred a firearm without a BC and charged accordingly. It's the burden of the State to prove each and every element of the crime charged beyond a reasonable doubt. Here are some hypothetical elements (based on my educated guesses) as to what the prosecution would have to prove:
1) That Alex Accused did transfer;
2) A firearm;
3) To Danny Defendant;
4) During a period in which the UBC law was in effect;
5) Without using whatever BC mechanism is specified.

Now, this is easy enough to do in BATFE or police sting operations, or where police surveillance provides a "witness" to the transaction. But what if Alex and Danny are just private citizens? Presumably, the law would criminalize the transfer from both sides. That is, transferring to someone, or accepting a transfer from someone, without a UBC would be illegal. Alex and Danny both have A4 and A5 rights not to testify as to the transaction. In the absence of registration, how will the prosecutor prove that Alex and Danny did the deed after the effective date of the law?

Quote:
Originally Posted by JimDandy
We can't really say the retail laws aren't enforceable while complaining those laws aren't being enforced and violators not prosecuted, can we? Nor can they say they're not enforceable while they're laying the blame for the lack of prosecutions and oversight on a severely understaffed ATF organization.
Sure we can. Just because Law A isn't being enforced, there's no reason that I can't argue that Law B is unenforceable. That is the precise situation that we have. Prosecutions on straw purchases are extremely rare, Abramski notwithstanding, but that has no bearing on whether UBCs are enforceable without registration.

Quote:
Originally Posted by JimDandy
Some other procedural changes may be necessary or prudent- along the lines of removing the cost to the FFL for running the check, and some minor compensation when they perform these checks as an agent of the government as required by law (to avoid unfunded mandate or taxing a right issues) but that's probably overdue anyway, and don't change the meat of the issue.
I have a number of privacy concerns about UBCs that will likely be alleviated by any procedural changes. What's more, since I don't believe that convicted felons are subject to prosecution for failing to register or use UBCs in their transactions, I have some fundamental, philosophical objections to requiring law-abiding citizens to do so.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
Spats McGee is offline  
 
Page generated in 0.02650 seconds with 8 queries