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Old June 26, 2014, 08:48 AM   #1
JimDandy
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UBC's and Spats

The beginning of this discussion started here and it was closed for wandering off topic of the original post, but Spats offered to continue the discussion in a new one, so here is the next part-

Quote:
No, they're not immune to the 4473 at a retail sale. At that point, the felon doesn't possess (actually, own) the firearm, either. It's when the seller is a felon that I think the A5 will kick in and protect him. And I hadn't actually thought about the fact that the seller isn't on the 4473, but if UBCs become law, I'll bet they will be added.
Well that get a little further afield than the "it can work without registration" window I was willing to open. I merely suggested a primarily copy and paste of the retail procedure to private sales, that wouldn't require changing the 4473 form.

Though I did open the door to using the recently proposed and failed S.649 as something of a roadmap. And reading it, it does again provide direction. In 649, the private sales were to have an FFL take possession of the firearm, and proceed as if it were their inventory. (Firearms Transfers, 122 (t)1)

Quote:
I thought I recalled that UBCs made it a crime to buy or sell a gun w/o a BG check. If so, Dan may have an A5 right that he would be wise to use.
It also only spoke (As far as my layman's understanding reads it, the link was provided in case I'm wrong) of it being illegal to transfer, not to receive, nor does it mention the likely rare scenario of a prohibited person legally selling their firearms, so I don't imagine it would have changed that either.

I'm also not entirely sure it could, because then we DO have 5th amendment issues revolving around the takings clause not? If Due Process didn't take their property as contraband, they have to still be able to legally dispose of it without being deprived of it's fair market value, correct?



Quote:
UBCs, though? Neither useful nor desirable. Just a first step towards registration, IMHO.
Again, I'm afraid I'll have to point to other services- someone being sued by the city may not find a City Attorney's Office useful or desirable, but the majority of the citizens have decided it is. And as that office provides a service to the citizenry as a whole, the citizenry as a whole pays for it (in theory.).

Likewise, the background check system, universal or current, has a stated or implied purpose that is designed to benefit society as a whole, not the firearms purchaser - that purpose being to attempt to insure that firearms are not getting into the hands of people with a firearms disability- and as such the cost for this background check service, universal or current, should properly be billed to society as a whole through tax appropriations should it not?
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Old June 26, 2014, 09:21 AM   #2
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I've had this one percolating in the back of my mind for a while now, so I may be replying to myself if Spats or others haven't chimed in yet but here goes:

First we should establish some level of success to define working:

Is "working" a judgement of the electorate and courts? I.e. do they have the final say(s) on what is and is not "working" as a law?

Is the existence of corrupt FFL's and straw purchases enough that most of the electorate would categorize the current background check system for retail sales as too flawed (only as applied to those transactions required to use the system) to be categorized as "working" and in need of being scrapped?

Drawing on your knowledge and experience as a legal professional, do you believe the current background check system has or would pass judicial review in our previous, current, or any likely successive Supreme Court panel if challenged?

As most of the conversation on the subject revolves around extending that system to the secondary market, I'm going to proceed assuming you'll stipulate the current system is classifiable as working, while conceding you may not. Therefore moving right along:

One of the changes that may alter the landscape is applying that background check system to all sales- analogous to the right to carry does not mean open or concealed just that one way must be allowed to satisfy the right- thus that a private sale without a background check somehow protects a fundamental right that a background check system does not. Do you believe the Court would find this to be the case, and if so, how?

Another change that may alter the landscape is the compulsory seeking out of an FFL to facilitate the transfer. This could be violative to the Constitution on property rights, Second Amendment, or other grounds I haven't even thought of yet. Do you feel this is the case? If so, how and would the Court likely agree with this?
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Old June 26, 2014, 09:39 AM   #3
Spats McGee
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Quote:
Originally Posted by JimDandy
Well that get a little further afield than the "it can work without registration" window I was willing to open. I merely suggested a primarily copy and paste of the retail procedure to private sales, that wouldn't require changing the 4473 form.
Quote:
Originally Posted by JimDandy
[S.649] also only spoke (As far as my layman's understanding reads it, the link was provided in case I'm wrong) of it being illegal to transfer, not to receive, nor does it mention the likely rare scenario of a prohibited person legally selling their firearms, so I don't imagine it would have changed that either.
Having now looked at S.649, it appears you are correct. It is illegal to transfer to someone w/o using the UBC. How long do you think that will last?


Quote:
Originally Posted by JimDandy
Again, I'm afraid I'll have to point to other services- someone being sued by the city may not find a City Attorney's Office useful or desirable, but the majority of the citizens have decided it is. And as that office provides a service to the citizenry as a whole, the citizenry as a whole pays for it (in theory.).
Yes, entirely unlike UBCs. I realize that you think that UBCs provide some service to the public as a whole, and on that score, you and I will simply have to disagree. I don't have the numbers handy, but I seem to recall that very few prohibited persons get their guns through legitimate means, anyway. My (entirely personal) hunch is that most prohibited persons get firearms either: (1) from other criminals in the black market; or (2) from a sympathetic girlfriend/boyfriend/family member. IMHO, neither of those will be impacted by requiring all private sales to go through UBCs, though.

Did you check on that link I provided in the other thread about the DOJ's admission that UBCs won't work without registration?

What's more important to me is that I don't care if it will prevent another 100, or even another 1000 prohibited persons from gaining access to firearms (which I think is a stretch), because I'm not willing to lay more requirements on the millions of gun owners, at least not until the federal government actually starts enforcing the laws on the books. Remember, Shotgun Joe even said that "we don't have time to prosecute paper crimes," or something like that.
Quote:
Originally Posted by JimDandy
Likewise, the background check system, universal or current, has a stated or implied purpose that is designed to benefit society as a whole, not the firearms purchaser - that purpose being to attempt to insure that firearms are not getting into the hands of people with a firearms disability- and as such the cost for this background check service, universal or current, should properly be billed to society as a whole through tax appropriations should it not?
Likewise, repealing the First, Second, Fourth, Fifth, and Eighth Amendments would surely increase decrease crime, to the benefit of society. It is my opinion that the benefits to society of keeping those Amendments in place, and protecting the rights of individuals outweighs the benefits of repealing them.

Quote:
Originally Posted by JimDandy
I'm also not entirely sure it could, because then we DO have 5th amendment issues revolving around the takings clause not? If Due Process didn't take their property as contraband, they have to still be able to legally dispose of it without being deprived of it's fair market value, correct?
Let's not get off into A5 Takings jurisprudence, or this thread really will spin totally out of control. OK?

Stopping here so that I can respond to your 2nd post in a somewhat orderly fashion.
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Old June 26, 2014, 09:40 AM   #4
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Quote:
Likewise, the background check system, universal or current, has a stated or implied purpose that is designed to benefit society as a whole, not the firearms purchaser - that purpose being to attempt to insure that firearms are not getting into the hands of people with a firearms disability
We've seen no proof that the NICS system has deterred or affected crime. The Brady Campaign makes claims that it has prevented between 1.6 and 2 million convicted felons from buying guns. That claim was made by assuming all "denials" issued by NICS were because the buyer was a convicted felon. The real number is much, much smaller.

We really have not seen much of a benefit from it.

Quote:
Another change that may alter the landscape is the compulsory seeking out of an FFL to facilitate the transfer. This could be violative to the Constitution on property rights, Second Amendment, or other grounds I haven't even thought of yet.
We can never guess what a court will think or decide. That said, imagine you live in a relatively isolated, rural area. The only FFL is a hundred or more miles away and charges $100 for transfers. That sets up a significant obstacle to exercising a right.

It's not just rural areas. Consider Washington DC. For a while, there was only one FFL willing to do business with civilians. Assuming he's willing to take on the burden of FTF transfers, we can assume his backlog and wait times would skyrocket.
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Old June 26, 2014, 09:52 AM   #5
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Quote:
Originally Posted by JimDandy
First we should establish some level of success to define working:

Is "working" a judgement of the electorate and courts? I.e. do they have the final say(s) on what is and is not "working" as a law?
The electorate, yes. The courts, no. The courts will not decide if a law is wise or if it is "working."

Quote:
Originally Posted by JimDandy
Is the existence of corrupt FFL's and straw purchases enough that most of the electorate would categorize the current background check system for retail sales as too flawed (only as applied to those transactions required to use the system) to be categorized as "working" and in need of being scrapped?
Sadly, I suspect most of the electorate is basically ignorant of the actual workings of the current background check system. Most of the population won't have any more idea than the man in the moon what kind of resources it would take to apply UBCs to all private sales. I don't think the electorate could form an informed opinion . . . . not that it would stop them from forming an opinion, mind you.
Quote:
Originally Posted by JimDandy
Drawing on your knowledge and experience as a legal professional, do you believe the current background check system has or would pass judicial review in our previous, current, or any likely successive Supreme Court panel if challenged?
Too many variables here to give you anything even approximating a reliable answer.

Quote:
Originally Posted by JimDandy
As most of the conversation on the subject revolves around extending that system to the secondary market, I'm going to proceed assuming you'll stipulate the current system is classifiable as working, while conceding you may not. Therefore moving right along:
To my mind, there's more to it than whether it simply functions. Does it keep a few prohibited persons from buying guns? Sure. Does it keep many? Well, define "many." Are there false positives? Sure. How well does the appeal process work for those false positives? I don't know. Do I think it's likely that the NICS section is just as inefficient and bloated as the rest of the federal government? Yeah, I do.
Quote:
Originally Posted by JimDandy
One of the changes that may alter the landscape is applying that background check system to all sales- analogous to the right to carry does not mean open or concealed just that one way must be allowed to satisfy the right- thus that a private sale without a background check somehow protects a fundamental right that a background check system does not. Do you believe the Court would find this to be the case, and if so, how?
In the past couple of years, the federal government has taken the position that requiring ID in order to vote is unconstitutional. IIRC, voting is a fundamental, individual right. The RKBA is a fundamental, individual right. How is it less intrusive to run a NICS check on me than to look at my DL?
Quote:
Originally Posted by JimDandy
Another change that may alter the landscape is the compulsory seeking out of an FFL to facilitate the transfer. This could be violative to the Constitution on property rights, Second Amendment, or other grounds I haven't even thought of yet. Do you feel this is the case? If so, how and would the Court likely agree with this?
I'm pretty sure I covered at least part of this with my comments re: Haynes.
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Old June 26, 2014, 10:01 AM   #6
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Quote:
Originally Posted by Tom Servo
Assuming he's willing to take on the burden of FTF transfers, . . . .
That's one other aspect of these, JimDandy . . . . Who will actually do the transfers? You mentioned reducing the cost of them, but an FFL will still have to pay wages for whichever employee makes that call to NICS. That's not a problem for an FFL who: (1) doesn't get many requests for private transfers; and (2) if NICS works smoothly. For one that gets a ton of private transfer requests, or if the NICS call ties up an employee for, say, 30 minutes, that gets expensive. If the FFL cannot collect above $X fee, then doing private transfers becomes a money-losing proposition, and FFLs will quit doing them. Should the gov't mandate that FFLs do private transfers?
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Old June 26, 2014, 10:17 AM   #7
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Quote:
How long do you think that will last?
As that's all I'm willing to allow will work, I suppose indefinitely. Any more than that, I don't propose would work.

Quote:
Likewise, repealing the First, Second, Fourth, Fifth, and Eighth Amendments would surely increase decrease crime, to the benefit of society. It is my opinion that the benefits to society of keeping those Amendments in place, and protecting the rights of individuals outweighs the benefits of repealing them.
I'm not following your logic here- What does repealing many of our freedoms have to do with who should pay, and through what mechanism, for national programs and services that benefit and/or protect society as a whole.

Not currently being a member of any protected class I'm aware of does not entitle me to a refund on the tax burden imposed on me to support the HUD Discrimination Hotline, because I benefit from a society without discrimination. Why shouldn't a tax burden be applied to non-gun owners to finance the NICS hotline because they benefit from a society where it is more difficult for criminals to gain firearms?

As an aside, and this could be a question in and of itself, I'm curious why you believe even the current system, regardless of it's value and effective worth, should be billed to a gun purchaser alone when it's effect, real or imagined, is to society at large.

Quote:
I don't have the numbers handy, but I seem to recall that very few prohibited persons get their guns through legitimate means, anyway
How many prohibited persons would do so without a background check system at all?

John Dillinger: I'd like a big gun.

FFL: Are you a prohibited person?

John Dillinger: No, not at all, can I pay cash? It's even still wrapped from my recent trip to the bank.

I haven't seen any numbers for legitimate means. I've seen some numbers for definitely illegitimate means, definitely legitimate means, with a too large block of leftovers to categorically determine either or. We can make something of an educated guess, but it's still a guess that only gets us in a very big ballpark. The numbers for the upper limits of the ballpark are here. The lower limit is about 48K, so between 48K and 108K criminal victimizations. In addition to the fact that that's criminal victimizations and not criminals themselves, there are other problems like assuming none of those surveyed were first-timers actually allowed legitimate means, but it's about the best we can get that I can find.

Quote:
Let's not get off into A5 Takings jurisprudence, or this thread really will spin totally out of control. OK?
That's not a problem, I only brought it up in that it's the thing stopping us from making it illegal for a prohibited person to sell their arms they've lost possession but not ownership rights to. Unless I'm wrong there's no need to delve into it further than that.
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Old June 26, 2014, 10:32 AM   #8
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Quote:
The only FFL is a hundred or more miles away and charges $100 for transfers
Quote:
You mentioned reducing the cost of them, but an FFL will still have to pay wages for whichever employee makes that call to NICS.
What I mentioned is that FFL's should not be paying to do them. I personally believe the funding source for these checks should be the government. The government is running the check, the FFL is just the conduit for it.

I believe that whether it's an inventory retail sale, a voluntary private sale, or a mandatory second hand sale background check, the burden of financing this check should be on the government, and the FFL should get some stipend per check to offset those costs. Just like, no matter how disenchanted with the quality of the candidates enough to stay home, the government should cover the costs of elections, not the people who are excited enough about one to vote.

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Should the gov't mandate that FFLs do private transfers?
IF the government pays for the FFL to do the service on their retail sales as well, then yes. Not much different than public hospitals not being able to refuse Medicare patients.
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Old June 26, 2014, 12:52 PM   #9
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How well does the appeal process work for those false positives?
The short answer is, "not well and not easy." I've had customers for whom it's taken over a year and significant legal costs. Often the appellant will have to get legal counsel to strongarm local officials into fixing an incorrect record or an identity mixup.

I must stress: these people had done nothing wrong. Their denials and subsequent hassles were due to someone else's mistake, yet the burden of proof falls on the appellant.

Over half the denials I see are overturned on appeal. About three times a year, I'll get a denial and send the customer home, only to get a call back from the NICS center a few hours later changing the result to a proceed.

Quote:
an FFL will still have to pay wages for whichever employee makes that call to NICS.
Yep, and S. 649 capped the fee an FFL could charge at $5. No way are most of us doing that for five bucks. Sorry. It doesn't pay my costs.

Where does that leave people?
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Old June 26, 2014, 01:00 PM   #10
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Quote:
Yep, and S. 649 capped the fee an FFL could charge at $5.
Where was that? I see where it says a maximum fee was allowed for, but not a number in the bill.

And additionally, as you're an FFL I gather- if someone brings in a firearm to your shop for a voluntary transfer, how does that process work? What do you have to do to accept the firearm before transfer?

Last edited by JimDandy; June 26, 2014 at 01:07 PM.
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Old June 26, 2014, 01:36 PM   #11
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Quote:
Originally Posted by JimDandy
Is the existence of corrupt FFL's and straw purchases enough that most of the electorate would categorize the current background check system for retail sales as too flawed (only as applied to those transactions required to use the system) to be categorized as "working" and in need of being scrapped?
Probably yes.

Not because the system doesn't work, but because too many recent mass shooters were able to buy their guns legally, and all most of the public knows is that crazy people bought guns from gun dealers. Most of them weren't even corrupt, although the post-Sandy Hook investigation ultimately led to the closing of the store that sold the shooter's mother the AR-15. That's what most of the public have latched onto. The fact that the particular sale to Nancy Lanza was completely by-the-books and squeaky clean is either not understood or ignored.

The VA Tech shooter bought his guns legally. Major Hassan bought his guns legally. I believe the Aurora shooter bought his guns legally. Don't remember about the guy who shot Gabby Giffords.
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Old June 26, 2014, 01:57 PM   #12
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Really? You think if Gallup were to poll America, and ask "Should we stop conducting background checks on retail firearms purchases?" the majority of those polled will say yes, because it didn't stop spree shooters? Or did one of us misunderstand the other?
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Old June 26, 2014, 02:05 PM   #13
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Quote:
I see where it says a maximum fee was allowed for, but not a number in the bill.
I'll have to track it down. It was in one of the amendments.

Quote:
if someone brings in a firearm to your shop for a voluntary transfer, how does that process work? What do you have to do to accept the firearm before transfer?
Basically, I do a purchase order for the incoming gun and log it into the book. Then I do a 4473, run the NICS check, and "sell" it to the recipient.
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Old June 26, 2014, 02:14 PM   #14
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Basically, I do a purchase order for the incoming gun and log it into the book. Then I do a 4473, run the NICS check, and "sell" it to the recipient.
What level of detail/identifying information do you require (by law anyway) from the seller?
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Old June 26, 2014, 02:57 PM   #15
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What level of detail/identifying information do you require (by law anyway) from the seller?
Current and valid government-issued photo ID (you'd be surprised what a problem that is for many people), and they have to sign an affidavit swearing the gun is their legal property.
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Old June 26, 2014, 05:50 PM   #16
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No SSN? How much of the ID do you write down? Name and address?
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