Toomey-Manchin Amendment

[Bartholomew Roberts]

Originally Posted by kraigwy

How about "loaning" a firearm to someone?????

"926A. Interstate transportation of firearms or ammunition.".
SEC. 129. RULE OF CONSTRUCTION.
Nothing in this subtitle, or an amendment made by this subtitle, shall be construed-
(1) to extend background check requirements to transfers other than those made at gun shows or on the curtilage thereof, or pursuant to an advertisement, posting, display, or other listing on the Internet or in a publication by the transferor of the intent of the transferor to transfer, or the transferee of the intent of the transferee to acquire, the firearm; or

(2) to extend background check requirements to temporary transfers for purposes including lawful hunting or sporting or to temporary possession of a firearm for purposes of examination or evaluation by a prospective transferee.

Interesting issue - what if I loan a firearm to someone who is having prowler problems? The prohibition is against "purposes including lawful hunting or sporting."

[Randy-Fl-01]

You said:

"Paragraph 2 does not cover all other sales. It describes when Paragraph 1 does not apply. Other transfers are covered by 18 USC 922(s) (which is currently 18 USC 922(t))."

I hope that you are correct - but does this bill specifically state that or is it implied or to be inferred or is that existing case law or???

[Bartholomew Roberts]

It is very common statutory construction. And of course, the first sentence of Paragraph 2 is "Paragraph 1 shall not apply if".

[Randy-Fl-01]

I am glad you could clear that up - now - what does "publication" mean and why didn't they include a definition - as is common in other laws?

[carguychris]

In my earlier post, when I wrote...

Originally Posted by carguychris

I believe that this legislation could essentially result in the end of all lawful non-family FTF sales...

...I probably should have worded this a little differently, perhaps as largely unregulated lawful non-family FTF sales.

One particular provision in the "Exemptions" caught my attention...

(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-
(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and
(ii) the transfer was conducted in compliance with the laws of the State;...

Here's my interpretation: if the state has a CHL system or a firearms purchase permit system in place, AND this system has standards equal to or in excess of a NICS check, AND a NICS-disqualifying event would also result in the revocation of this permit or license, then the US Attorney General can certify that this license or permit is essentially equal to a NICS check. Viola- it's legal to conduct a FTF sale to an in-state buyer who has the permit or license.

Thoughts?

If this is the case, then the only missing piece in most states with CHLs is some sort of in-state process for verifying whether the permit or license is valid.

[gc70]

Originally Posted by carguychris

Here's my interpretation: if the state has a CHL system or a firearms purchase permit system in place, AND this system has standards equal to or in excess of a NICS check, AND a NICS-disqualifying event would also result in the revocation of this permit or license, then the US Attorney General can certify that this license or permit is essentially equal to a NICS check. Viola- it's legal to conduct a FTF sale to an in-state buyer who has the permit or license.

Thoughts?

Partially correct. The core of the Manchin-Toomey amendment is the requirement for gun show and internet-related transfers to go through a dealer. Going through a dealer already requires a 4473 and a NICS check. Existing law already allows some permits to act as substitutes for a NICS check.

The section cited refers to state requirements equivalent to the federal requirements of going through a dealer, with a 4473, and with a NICS check or equivalent.

You did not think that Schumer was really going to give up on getting some type of records of as many private sales as possible, did you?

[ChuckS]

Originally Posted by Bartholomew Roberts

Interesting issue - what if I loan a firearm to someone who is having prowler problems? The prohibition is against "purposes including lawful hunting or sporting."

Ouch...under current PA law I can loan a firearm to a friend:

(a) Offense defined.--No person shall make any loan secured by mortgage, deposit or pledge of a firearm, nor, except as provided in subsection (b), shall any person lend or give a firearm to another or otherwise deliver a firearm contrary to the provisions of this subchapter.
(b) Exception.—
(1) Subsection (a) shall not apply if any of the following apply:
(i) The person who receives the firearm is licensed to carry a firearm under section 6109 (relating to licenses).

Am I right in that this law (if passed) would supercede our state law and I can no longer loan a firearm even if he has a license to carry?

[csmsss]

cgc, the more we dig into this, the more confusing and self-contradictory it becomes. Whenever a law becomes this difficult to follow, it lends itself to selective prosecution.

[Spats McGee]

I spent a little time this morning, going through 18 usc 922 and making the changes that the T-M amendment proposes. I know that it's much easier for me to see what an amendment will do if I actually make the changes that are proposed. I did not go through the other sections to make the changes, as my focus right now is on what sorts of transfers are covered.

This is only a draft, and if I've made any mistakes, just let me know.

[mayosligo]

I still do not see the change. When you buy on the Internet you firearm is shipped to an FFL who does a background check when you pick up.

When you buy stagy show from an FFL they do a background check.

All this does is make private sales illegal at a gunshow.

[DaveTrig]

Nice work, Spatts...

This gem jumped out at me:

From the 922(b)(3)(A): (bold indicates new wording)

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed
dealer, or licensed collector to sell or deliver--

(3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business is located located or temporarily located, except that this paragraph

(A) shall not apply to the sale or delivery of any firearm (was rifle or shotgun) to a resident of a State other than a State in which the licensee's place of business is located or temporarily located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in the State in which the transfer is conducted and the State of residence of the transferee

Am I nuts, or did they just restore the ability to purchase a handgun outside the state in which you reside???

[DaveTrig]

I still do not see the change. When you buy on the Internet you firearm is shipped to an FFL who does a background check when you pick up.

You're thinking of internet sales only as orders that need to be shipped, in which case you'd be correct.

The new law would include, for example, a firearm is that is sold through an online classified ad or auction within the same state and a face-to-face pickup could occur.

[Spats McGee]

No, DaveTrig, you're not nuts. That's the carrot right there.

[JimDandy]

Am I nuts, or did they just restore the ability to purchase a handgun outside the state in which you reside???

That was in the summary. They do intent to restore that ability.

[Spats McGee]

I finally got throgh my first run through the amendment, and here are my impressions:

(u)It shall be unlawful for a person to steal or unlawfully take or carry away from the person or the premises of a person who is licensed to engage in the business of importing, manufacturing, or dealing in firearms, any firearm in the licensee's business inventory that has been shipped or transported in interstate or foreign commerce.

Ok. This is from the pre-amendment § 922. I’ve never really looked at it before, but it’s rather a silly subsection:
1) It shall be unlawful for a person to unlawfully take?!? I’m pretty sure it’s always unlawful to do something unlawful. Kinda goes with the territory.
2) Was there some reason to think that theft was somehow legal when it came to firearms?

Now, on to the amendment issues:

(t)(1) Beginning on the date that is 180 days after the date of enactment of this subsection and except as provided in paragraph (2), it shall be unlawful for any person other than a licensed dealer, licensed manufacturer, or licensed importer to complete the transfer of a firearm to any other person who is not licensed under this chapter, if such transfer occurs-
"(A) at a gun show or event, on the curtilage thereof; or
"(B) pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.

I think we’ve pretty well established what this would do to private sales at gun shows, or on the curtilage thereof. The only real question is what this does to all of the other non-gun-show, non-curtilage-thereof private transfers. I can see two readings of subsection (B), above. The first is that background checks would be required in connection with any “advertisement, posting, display or other listing,” in which the internet was involved. The second, which is (IMHO) less plausible, but nonetheless the one I (suspiciously) expect BATFE to take is more along the lines of “pursuant to an advertisement,” (may be unconnected with internet), posting (may also be unconnected), “display or other listing on the internet.” IOW, if it’s on da webz, it gets a background check. If it’s advertised, it gets a BC. If it’s displayed, it gets a BC. That interpretation covers pretty much all private transfers except:

Bob: Nice rifle, Frank.
Frank: Thanks, Bob. I was thinking of selling it.
Bob: Take my money NOW!

Now on to Paragraph 2:

"(2) Paragraph (1) shall not apply if-
"(A) the transfer is made after a licensed importer, licensed manufacturer, or licensed dealer has first taken possession of the firearm for the purpose of complying with subsection (s), and upon taking possession of the firearm, the licensee-
"(i) complies with all requirements of this chapter as if the licensee were transferring the firearm from the licensee's business inventory to the unlicensed transferee, except that when processing a transfer under this chapter the licensee may accept in lieu of conducting a background check a valid permit issued within the previous 5 years by a State, or a political subdivision of a State, that allows the transferee to possess, acquire, or carry a firearm, if the law of the State, or political subdivision of a State, that issued the permit requires that such permit is issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by the unlicensed transferee would be in violation of Federal, State, or local law;

Let’s stop here for just a moment. OK. So Paragraph 1 requires BCs. Paragraph 2 does not apply, if you go through an FFL . . . which requires a BC, in most cases. So it’s kind of like saying that Paragraph 1 doesn’t apply, if you follow the steps outlined in Paragraph 1. As others have noted, there’s also a limit of 5 years on the CCL exemption.

"(B) the transfer is made between an unlicensed transferor and an unlicensed transferee residing in the same State, which takes place in such State, if-
"(i) the Attorney General certifies that State in which the transfer takes place has in effect requirements under law that are generally equivalent to the requirements of this section; and

Ok. This bugs me. That “and” right there makes me wonder if (B) is supposed to be read in conjunction with subsection (A) above. If so, that would mean that intrastate FTF transfers would be covered and the AG would have to certify that the State in which the transfer takes place has in effect laws that are “generally equivalent” to the requirements of this section.
Hmmm . . . “generally equivalent.” I really, really don’t like the use of that phrase here. First of all, what does that mean? Identical? Extremely close to identical? What are the relevant features and requirements of a law, necessary to such a degree and in such a way as to make a State law “generally equivalent?” Second, what happens if the AG does not so certify? Is there any incentive for him to do so? If not, why would he certify any State as having such laws? Third, why should he have to certify a State like that? Due to the Supremacy Clause, we already have to abide by State and Federal law. This looks like an end run that allows the fed gov’t to indirectly regulate intrastate commerce, if’n you ask me.

"(ii) the transfer was conducted in compliance with the laws of the State;
"(C) the transfer is made between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins, if the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law; or

OK. Here are the family transfers. I do think that tranfers within the family should be exempted from BCs. I mean, you still can’t give your brother a gun if he’s got a felony conviction, and it seems reasonable that you oughta know if your brother’s a felon.

Also note that we might talk about “sales,” but the law actually refers to “transfers.” While I might personally find this a little disconcerting, in all honesty, I don’t see any changes to the definition of “transfer,” in this amendment. However, I am bothered by this:

SEC. 129. RULE OF CONSTRUCTION.
Nothing in this subtitle, or an amendment made by this subtitle, shall be construed-
(1) to extend background check requirements to transfers other than those made at gun shows or on the curtilage thereof, or pursuant to an advertisement, posting, display, or other listing on the Internet or in a publication by the transferor of the intent of the transferor to transfer, or the transferee of the intent of the transferee to acquire, the firearm; or
(2) to extend background check requirements to temporary transfers for purposes including lawful hunting or sporting or to temporary possession of a firearm for purposes of examination or evaluation by a prospective transferee.

Someone (kraigwy?) noted earlier that this can be interpreted to mean that I can loan my buddy something for hunting, but not for “stalker duty,” unless it involves a BC.

[Bartholomew Roberts]

Originally Posted by carguychris

Here's my interpretation: if the state has a CHL system or a firearms purchase permit system in place, AND this system has standards equal to or in excess of a NICS check, AND a NICS-disqualifying event would also result in the revocation of this permit or license, then the US Attorney General can certify that this license or permit is essentially equal to a NICS check. Viola- it's legal to conduct a FTF sale to an in-state buyer who has the permit or license.

Thoughts?

Talked with 3 different lawyers today, all sharp guys, and got three totally different interpretations of what 2(B) does. Regardless of what the author's intent was, that doesn't bode well - especially when Eric Holder is doing the interpretation and enforcement. There are several big players in the 1994 AWB working in DOJ now.

[wally626]

Also note that we might talk about “sales,” but the law actually refers to “transfers.” While I might personally find this a little disconcerting, in all honesty, I don’t see any changes to the definition of “transfer,” in this

amendment. However, I am bothered by this:

Someone (kraigwy?) noted earlier that this can be interpreted to mean that I can loan my buddy something for hunting, but not for “stalker duty,” unless it involves a BC.

The first part of 2, is the old allowance for the temporary transfer for hunting and sporting purposes, but of course the old federal law was only interstate transfers. The second part of 2, is to cover the new FFL requirements for gun shows and advertising. I.e. you can legally let someone examine a weapon before they buy it or do not buy it.

Although the amendment has some plus's such as making handguns equal to long guns in interstate commerce, the background check extensions are useless. What percent of sales to bad guys really involve the internet or ads and how many are just guys saying "Do you know were I can get a gun" and Joe saying "Yes, see Phil"? No background check required for that.

Under federal law you cannot lend a buddy out-of-state a gun for personal protection without it going through a FFL, this law does not change that. If in state it does not change it either as you are unlikely to give you buddy the gun at a gun show.

[mayosligo]

Ah. Thanks Dave.

[NWPilgrim]

These bills are presumably written by attorneys. If they wanted to be clear they would use precise language. The fact it is so muddled and open to executive interpretation so tell us A LOT about the intentions.

It is worded to allow us to be optimistic and assume it would never be applied in ridiculous or oppressive manner, while leaving open that very opportunity.

[spacecoast]

I have a feeling that the questions asked and points made here are far more detailed and perceptive than those asked before the next vote.

[motorhead0922]

Nothing in this subtitle, or an amendment made by this subtitle, shall be construed-
(1) to extend background check requirements to transfers other than those made at gun shows or on the curtilage thereof, or pursuant to an advertisement, posting, display, or other listing on the Internet or in a publication by the transferor of the intent of the transferor to transfer, or the transferee of the intent of the transferee to acquire, the firearm; or
(2) to extend background check requirements to temporary transfers for purposes including lawful hunting or sporting or to temporary possession of a firearm for purposes of examination or evaluation by a prospective transferee.

Originally Posted by wally626

Under federal law you cannot lend a buddy out-of-state a gun for personal protection without it going through a FFL, this law does not change that. If in state it does not change it either as you are unlikely to give you buddy the gun at a gun show.

This law would restrict loaning a gun to a friend for personal protection. The verbiage in section (1) is separate from section (2).

[Al Norris]

I think we all need to take a step back. The politics of gun-control just turned a leaf.

It appears that Alan Gottlieb (SAF, CCRKBA) has just admitted to helping to write the Manchin-Toomey compromise bill/amendment. He was caught on video last Friday.

This was discovered over at CGN. That article is here: http://www.mediaite.com/online/watch...cks-amendment/. After doing some checking, I found the original article by Dan Santini (Daylight Disinfectant Blog): DAYLIGHT DISINFECTANT | SHOCK VIDEO: GUN RIGHTS ADVOCATE’S STAFF HELPED WRITE BACKGROUND CHECK BILL. Both of the articles contain the flash video of Mr. Gottliebs statements to a country club dinner, last Friday. The standalone video at YouTube is here: http://www.youtube.com/watch?feature...=E9UMox1WoTw#!

[sigcurious]

My mind boggles, at how that guy doesn't see that even with his good intent,(giving him the benefit of the doubt) what came out on paper is dangerous and the few "protections" and "ornaments" as he would call them, are not a good trade for the language being wide open to interpretation to mean things other than he intended.

[Bartholomew Roberts]

Watch the video, it contains some interesting inside info on pro-RKBA amendments to be offered Tuesday. I have some big concerns still.

1. Why are CHLs being forced to transfer through an FFL for Internet/Gun show sales when they have already been background checked and are exempt from NICS?

2. I think Mr. Gottlieb is overly optimistic about how he is "getting over" on the antis. Chuck Schumer, Mike Bloomberg, and Joe Biden disn't sign off on that deal because they are stupid. They think they are getting something too - and there is a lot of gray area to justify their thoughts. The whole reason FOPA needs strengthening is because a combination of judges and bureaucrats have twisted the language and ignored the intent of the drafters. I don't know why Mr. Gottlieb doesn't think that is going to happen again if the language allows for more than one interpretation.

[Glenn E. Meyer]

It is also the case that the bill will be seen as a first step and breakthrough towards more draconian gun control. Minor tweaks will not be seen as a compromise that treats both sides equally.

Perhaps the discussion about national reciprocity (if that happened in a manner that a state can't reject it) would be a step forward. If you do the net sum of public views, the current bill will be a step toward what must be done to control guns.

The meta is a changing mood away from gun rights and minor tweaks will not avoid the big crunch. I'm afraid only a definitive SCOTUS set of new decisions will do that.