Let's Close The Gunshow Loophole

[Al Norris]

I disagree, Ken.

There are laws, currently on the books in many States. We haven't even touched upon the current federal regs. But the fact is, the laws are there.

It's the enforcement of current laws that are the problem. If current laws are not enforced, why does it make sense to legislate a new, tougher, better law?

Fact of the matter is that new laws will generally only affect the law abiding citizen in ever increasing restrictions. We both know that the NRA has been calling for more effective enforcement of existing law, rather than new law. They've been doing this for years.

Bottom line. Effective enforcement of current law will achieve all the goals that people scream they want the new law to do. Without further restricting the rights of law abiding citizens.

[Wildalaska]

It's the enforcement of current laws that are the problem. If current laws are not enforced, why does it make sense to legislate a new, tougher, better law?

But if the law doesnt work (which it clearly, given my example above, does not) wouldnt it make sense to redifine the issues...

If the whole issue of dealing without a license is a grey area, shouldnt that be addressed?

Can it be addressed in a way that doesnt preclude Cruffle Gunny from occasionally selling his collection?

WildfolksloveloopholesAlaska TM

[Al Norris]

Ah, but that's not saying the "old" law doesn't work. Redefining the meaning of "dealer" does not require a new law. It requires a redefinition.

To be sure, such a technicality is a new law. But not in the manner suggested - prohibiting all FTF transfers without a NICS check (the topic of this thread).

Here's my reasoning.

Constitutionally, registration can be required, if the Government (State and/or Federal) utilizes the data for Militia purposes. I'm actually fine with that, if the requirement is tied to implementation of the militia clauses. Barring this, the Government has no justifiable reason to know what firearms I, or you, may be keeping for our own lawful uses.

NICS checks are constitutional, even under strict scrutiny, but only because of the currently recognized model of commerce clause case law. Should Wickard ever be revisited and overturned (or narrowed), then the NICS check does not carry weight. NOR would FFL schemes. They all become (as they should have been to begin with) a State issue.

Since I'm an advocate of Federalism, tell me again, why I should support another expansion of commerce clause legislation?

[MrSardonicus]

I am not in favor of closing the so-called "gun show loop hole", I'm in favor of cutting all the strings used to knot the loops in the first place!

[DonR101395]

But if the law doesnt work (which it clearly, given my example above, does not) wouldnt it make sense to redifine the issues...

Sounds more the the enforcement isn't working.....i.e. non existent. By your own admission when the BATF enforced it by issuing a desist letter it worked.

[Wildalaska]

Barring this, the Government has no justifiable reason to know what firearms I, or you, may be keeping for our own lawful uses.

I have to disagree, I have always taken the position that registration would never constitute an infringement. But thats a debate I reckon we can save for later

Since I'm an advocate of Federalism, tell me again, why I should support another expansion of commerce clause legislation?

Is it an expansion if we tighten up the definition of what is "dealing"?

WildwearesosocraticAlaska ™

[Tennessee Gentleman]

Originally Posted by DonR101395

Sounds more the the enforcement isn't working.....i.e. non existent. By your own admission when the BATF enforced it by issuing a desist letter it worked.

I think there is no law to work in this case.

Maybe I am confused but I have seen the thread go one way concerning who is and who is not a dealer of firearms.

That is one point but the other point is that FTF sales do not require a backgound check and therefore leave open an avenue to nuts and crooks to buy firearms they are not legally allowed to own or possess.

IIRC as long as the seller does not know beforehand that the person he sold to is a part of the prohibited class, the seller has done nothing illegal. So, the background check could be construed as protecting said private seller from selling to a nut or crook?

Or, are you saying that all these folks I see walking around in gun shows with rifles slung over their shoulders and pistols in their belts who will sell to anybody with cash, no questions asked, should be considered dealers by the BATFE and then arrested for selling firearms without a FFL? Would that fly legally in a prosecution?

[Al Norris]

Originally Posted by Ken

Is it an expansion if we tighten up the definition of what is "dealing"?

Direct answer? No. I said I had no problem with this.

Originally Posted by Tennessee Gentleman

That is one point but the other point is that FTF sales do not require a backgound check and therefore leave open an avenue to nuts and crooks to buy firearms they are not legally allowed to own or possess.

Take any example you want where FTF must go through a NICS check, the criminal has not been stopped.

The same example is used for registration. The criminal has not been stopped.

Why add to the complexity (and number of) hoops the lawful citizen endures, when the net result is zero, as regards curtailing criminal behavior.

The largest peer reviewed study of its kind (which even admitted its anti-gun bias), by the CDC (released Oct. 2003), concluded that firearms laws were problematic in that there was no perceivable effects on criminal behavior:

During 2000--2002, the Task Force on Community Preventive Services (the Task Force), an independent nonfederal task force, conducted a systematic review of scientific evidence regarding the effectiveness of firearms laws in preventing violence, including violent crimes, suicide, and unintentional injury. The following laws were evaluated: bans on specified firearms or ammunition, restrictions on firearm acquisition, waiting periods for firearm acquisition, firearm registration and licensing of firearm owners, "shall issue" concealed weapon carry laws, child access prevention laws, zero tolerance laws for firearms in schools, and combinations of firearms laws. The Task Force found insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes. (Note that insufficient evidence to determine effectiveness should not be interpreted as evidence of ineffectiveness.) This report briefly describes how the reviews were conducted, summarizes the Task Force findings, and provides information regarding needs for future research.

Why, again, are we even entertaining this? other than for strictly political pandering?

[Tennessee Gentleman]

Take any example you want where FTF must go through a NICS check, the criminal has not been stopped.

He has been stopped from buying that firearm unless the seller is willing to commit a felony. I am assuming most wouldn't be.

Why, again, are we even entertaining this? other than for strictly political pandering?

In that case why have a background check at all? I know many might say; hear hear! but I think joe citizen wouldn't be happy with that.

I think there is some larger responsibility here that many of us think is necessary with firearms and so the background check (albeit with accurate data and easy of use technologically) is a way to realize some of that responsibility. I might some day want to sell some of my firearms, and I for one would not want to sell a gun even unknowingly to a nut or a crook but without the background check how would I know? This responsibility is something that might have been taken for granted years ago but no longer.

However, keeping with the OP I am assuming that the backgound check is something necessary to public safety and is not in question on this thread.

PS Al, how do you get your quotes to say "originally posted by XXX" do you just type that in or is there an auto feature to do that?

[Wildalaska]

Note that insufficient evidence to determine effectiveness should not be interpreted as evidence of ineffectiveness.

In other words, their conclusions, while interesting, are meaningless

We all know that illegal gun trafficing exists.....where do they get them?

1. Corrupt dealers
2. Straw men
3. Theft
4. Private party sales

Without running amok here, I ask: what is the least "infringing" way to prevent all of the above. With respect to thieving, its always going to be reactive. What is a proactive method? NICs takes care of honest dealers excpet in the case of #2....

WildifeellikealawschoolperfesserAlaska ™

[zukiphile]

Originally Posted by TG

I might some day want to sell some of my firearms, and I for one would not want to sell a gun even unknowingly to a nut or a crook but without the background check how would I know?

Just to note something we likely all know, a background check, even a perfect one, does not prevent sales to a nut or crook. Those checks only pick up names that have been processed through the criminal or psychiatric system.

Originally Posted by Ken

We all know that illegal gun trafficing exists.....where do they get them?

1. Corrupt dealers
2. Straw men
3. Theft
4. Private party sales

Without running amok here, I ask: what is the least "infringing" way to prevent all of the above.

The least infringing way is to understand what laws do. They do not prevent behaviour. The idea that a law will prevent illegal gun traffic necessarily ignores this.

You've left a couple of necessary players off the list of contributors to illegal gun trafficking. You should also include,

5. Honest dealers
6. Distributors
7. Manufacturers

Illicit gun trafficking exists because guns exist.

[Wildalaska]

The least infringing way is to understand what laws do. They do not prevent behaviour.

Really? So is it your contention that NICs does not dry up a source of guns?

You've left a couple of necessary players off the list of contributors to illegal gun trafficking. You should also include,

5. Honest dealers
6. Distributors
7. Manufacturers

How do those legitimate entities contribute?

Zap - Sorry Ken - GEM

WildnicedebateAlaska ™

[zukiphile]

Originally Posted by WA

Really? So is it your contention that NICs does not dry up a source of guns?

How do those legitimate entities contribute?

I would be happy to explain both. Could you respond to the question I've posed to you at least three times before this?

Originally Posted by Zuk previously

Also, if every sale needs to pass a background check, wouldn't it make sense to allow distributors to sell directly to the public? If not, what would FFLs ad other than a superfluous link in the chain of supply?

[BillCA]

Best quote of the whole thread:

Originally Posted by MrSardonicus

I am not in favor of closing the so-called "gun show loop hole", I'm in favor of cutting all the strings used to knot the loops in the first place!

Oh my, where to start in on this.

1. None of the gun laws prevent criminals from getting guns. See crime statistics.
2. The [anti-gun] goal is cradle-to-grave registration of all guns.
3. The above plan will not prevent criminals from getting guns.
4. With complete registration, it will be the average citizen who trips up over some regulation that suffers prosecution more so than the gang bangers or street thug. The latter will plea bargain off the gun charges.
5. The RKBA implies the ability and right to purchase both the firearms and ammunition. Keep and Bear are rights. The argument will be made that purchase is not. That's as silly as saying we have a right to publish freely, but not a right to buy ink or printing presses.
6. If "registration for militia purposes" is the stated purpose, the gov't needs only to know the cartridge used, type of gun, action-type and zip-code where the gun resides. Nothing more.
7. Government cannot exercise prior restraint on a right. That is, they cannot require you to get their approval to exercise a right. They can only deny rights for cause.
8. As implemented, I argue the NICS methodology is an unconstitutional burden imposed by the government.
9. The sale, trade, or barter of private property is none of the government's business. Claiming an "interstate commerce" exception to regulate sales of previously sold goods is a perversion of the commerce clause.

NICS is a chokepoint on the sales of all firearms. One person asked how long gun shows could continue if NICS was down during significant periods on weekends. This is a credible point and the issue goes beyond mere tin-foil paranoia.

Many things can happen to prevent a NICS check. Weather, equipment failure, accident, fire, power failure, terrorist attack, even a major solar storm. Bad weather in or near the facility used for NICS could deny checks across the country. Localized or regional outages can occur through the other means listed above. Anyone remember a large internet outage in the late 90's due to a backhoe operator digging up a backbone cable in Texas? I sure do.

The power to delay the exercise of a right is the power to deny the right. Delaying someone's right by days is not trivial. Especially when the desire is to exercise the right as quickly as possible (i.e. today). I would argue that delaying the right by more than about 90 minutes, fails.

Lastly, the government cannot "approve" the exercise of a right. They can only deny it for cause - such as a felon attempting to vote or denial of an assembly because it is not peaceable. That those with ambigious names (John Smith, Sally Brown, etc.) may have their rights denied based on government inability to keep accurate records does not excuse the violation of their rights.

If the government cannot deny a NICS check, there is no reason to delay it beyond a "reasonable time". I define that as 90 minutes, as requiring a 2nd trip to the FFL is an unnecessary burden. Let the gov't correct any errors after the fact, not the seller.

The kiosk idea has some merit. A pre-approved NICS check with a clearance-number the FFL or seller writes down on the receipt, 4473 or other place for their records. Such a number exempts the FFL/seller from liability and gives the buyer a record too. But if the NICS system is down or unreachable for more than [30 | 60] minutes it is up to the government to correct any error that occurs.

I'm not sure if there is a law prohibiting Congress from defunding the NICS system. But that is exactly what congress did for the program by which felons can get their federal rights restored. If that happened, the the entire [inefficient] cost of running the system would then have to be apportioned to the users of NICS - the FFLs. That could make the cost of a NICS check skyrocket to the unaffordable. An addendum should be added to the law that says if congress doesn't fund the program it ceases to exist along with all requirements to perform such a check.

Crime, deterrence and punishment
Deterrence is telling little Bobby that if he filches a cookie before dinner, he'll get a spanking or be forced to stay in his room. With adults, it is the cost of fines and/or losing their liberties for some period of time. But given crime stats, obviously there are those who think that "a couple o' years ain't nutthin'" in order for them to do what they want. In short, it would appear that the punishment is bearable for a majority of criminals.

Change that.

Rather than burden the citizens attempting to exercise their rights, increase the penalties for those prohibited persons who violate the law. Make the first offense punishable by 8 years in jail and then double the sentence for each subsequent prosecution.

Want to make it more likely that private sales will prevent purchase by prohibited persons? Exempt the seller from liability if he obtains an "authorization" number from NICS using either a telephone number or a website that prompts him for the required information. Without the number, if the purchaser commits a crime or is a prohibited person, the seller may incur some liability (either criminal or civil).
(Note: this should not include "registration" information)

For buyers, it would be worth the effort to create a website that allows buyers to determine if a gun for sale is listed as stolen or "lost", too.

Increase the penalty for being a felon in possession of a firearm. It's a 2nd strike so the penalty should be severe - 8-12 years in prison.

Increase the penalties for a prohibited person using (firing) a firearm in a crime. Double the length of a sentence if they actually fire the gun.

Increase the penalty for the theft of firearms. A residential burglar who steals a firearm should receive a longer sentence than one who doesn't steal a firearm. Add more time if they transfer possession to another prohibited person.

If we turn "gun control" on it's head by increasing the penalties for felons in possession, use of a firearm in a crime and theft of a firearm, then the only people impacted are the criminals.

Turn it on it's head completely by eliminating the FFL requirement and most of the paperwork. Keep a NICS type system to make it easier for everyone. Limit and prohibit the criminals from having them and prosecute them vigorously.

Final note: we cannot achieve utopia with either method simply because any otherwise decent person can choose to commit their first crime. Laws can only punish for things people have already done, not what they might do. Those who choose to violate the law risk a long time in jail, including the rest of their lives in some cases.

[vranasaurus]

BTW, you can't make anyone in a prohibited class register their weapons or charge them with possessing an unregistered weapon because it would violate their 5th amendment right against self incrimination. Making them register would be forcing them to admit they are breaking the law. US v. Haynes.

So any registration law would only apply to those allowed to possess firearms. The prohibited classes would still have to be prsoecuted under a law that prohibits their possession.

So a law would be passed that would have no effect on the criminal class but would substantially burden the law abiding. And the laws used today to prosecute criminals who possess firearms would still have to be used if some registration scheme were brought to be.

And let's not kid ourselves, NICS for all purchases will lead to retention of the data which will lead to registration.

[Playboypenguin]

The least infringing way is to understand what laws do. They do not prevent behaviour. The idea that a law will prevent illegal gun traffic necessarily ignores this.

You are completely wrong on this point. Laws do prevent crimes. I am not the only person that has not done something for fear of punishment under the law. Fear of punishment is a very good deterrent of bad behavior.

[alloy]

laws are only going to stop the honest and nearly honest, or fence sitters.

there is already a law on the books saying felons cant have guns....and yet thats what is being discussed in a roundabout way. so basically this is another law we need, to reinforce whats already against the law, that isnt working already?

no...its a law aimed at legit reasonable citizens, who really dont need it....because the rest of these points are already illegal, and if i understand correctly..they arent working, right?

aw crap, just make guns illegal and all the problems will go away.

[Tennessee Gentleman]

Bill,

I have to respond to some of this:

None of the gun laws prevent criminals from getting guns. See crime statistics.

No law prevent criminals from doing their deeds as by definition they are law breakers. Sorry, but this is just not a good argument.

The [anti-gun] goal is cradle-to-grave registration of all guns.

I agree but off topic. NICS checks are not registration.

Government cannot exercise prior restraint on a right. That is, they cannot require you to get their approval to exercise a right. They can only deny rights for cause.

Nuts and crooks have lost their rights to own a firearm. The NICs check is to show the seller that they have lost their rights and therefore he/she cannot sell to them legally.

The sale, trade, or barter of private property is none of the government's business.

Nice opinion but it ain't so. The government is in lots of our "private" transactions but that is another thread.

Lastly, the government cannot "approve" the exercise of a right. They can only deny it for cause - such as a felon attempting to vote

Which is what the NICS check does. Just like voter registration is in place to prevent fraud and illegals from voting.

Rather than burden the citizens attempting to exercise their rights, increase the penalties for those prohibited persons who violate the law.

That argument won't hold with the public because it happens after the damage is done and half the time the crooks get off because the prisons are crowded, the court is crowded and the plead out. Joe Citizen wants some crime prevention in there as well.

[zukiphile]

Originally Posted by PBP

You are completely wrong on this point. Laws do prevent crimes. I am not the only person that has not done something for fear of punishment under the law. Fear of punishment is a very good deterrent of bad behavior.

Emphasis added.

Deterence and prevention are distinguishable.

[Playboypenguin]

Deterence and prevention are distinguishable.

Only if you want to pretend that human behavior can be expressed in absolutes...which is not logical.

[zukiphile]

Originally Posted by pbp

Only if ...

No.

They are different words with different meanings. Those differences are not dependent on your view of human behaviour.

[JohnSmiles]

There is no gun show loophole, any more than there EVER WERE any cop killer bullets.
But most of you are probably aware of how that played out.
There are private sales between civilians at gun shows, which is perfectly legal.
But there is a gun being transferred without the gov having the details, or collecting any taxes.
And I could possibly see certain idiotic and greedy ffl holders supporting this as they would then be able to charge a lot of people a lot of transfer fee's.

The gov does not want you to have guns in the first place.
Any guns.
If you do not already know and understand that much, there is no use presenting any case here at all.

[Wildalaska]

I would be happy to explain both. Could you respond to the question I've posed to you at least three times before this?

Want to refresh my recollection please?

As implemented, I argue the NICS methodology is an unconstitutional burden imposed by the government.

Wasted argument, Heller takes care of it.

WilditshardfolksihaveulnarnerveentrapmentandmytypingisgoingtocrapAlaska TM

[vranasaurus]

The more swift and certain the punishment the more effective the law will be.

The problem in our system is that punishment is neither swift nor certain which reduces the effectiveness of laws.

I'm not arguing for summary punishments but that in order to have freedom certain sacrifices have to be made. The many freedoms we enjoy often reduce the effectiveness of laws.

In the quest to achieve complete safety and security many are willing to give up many freedoms. Ben Franklin said such people deserve neither, I say in the end they will have neither. Throughout history freedom is rarely taken away in great amounts. It is taken away in small amounts over time. Gun rights inAmerica are no exception.

[Tennessee Gentleman]

Originally Posted by Wildalaska

Wasted argument, Heller takes care of it.

I think for this threads discussion we must assume as Wild points out that the NICS check is NOT an infringement on the 2A otherwise we need anohter thread. I believe Heller validates it as a reasonable restriction and therefore constituitional. The issue is whether it should extend to FTF sales. Otherwise we are off topic.