Heller and the Mythical Gun Show Loophole

[denton]

source (http://armsandthelaw.com/archives/2009/04/thoughts_on_a_h.php)

The anti-gunners want desperately to close the mythical, nonexistent gun show loophole. Apparently they are appealing to the language in Heller allowing firearm regulations other than bans as their legal basis.

At Of Arms and the Law, Dave Hardy, a prominent 2A attorney, is supporting the notion that Heller does NOT allow such a restriction. Apparently, Heller allows regulation of commercial gun sales, not private sales.

Anybody got any further info on this?

[d90king]

source (http://armsandthelaw.com/archives/2009/04/thoughts_on_a_h.php)

The anti-gunners want desperately to close the mythical, nonexistent gun show loophole. Apparently they are appealing to the language in Heller allowing firearm regulations other than bans as their legal basis.

At Of Arms and the Law, Dave Hardy, a prominent 2A attorney, is supporting the notion that Heller does NOT allow such a restriction. Apparently, Heller allows regulation of commercial gun sales, not private sales.

Anybody got any further info on this?
I will say, that I do support background checks on individuals purchasing a handgun.

I believe the "regulation" part of the ruling is so that the government can protect against someone who is not permitted under the law to obtain a firearm. The government has to protect that "others" rights are not infringed upon by restricting those whose past actions have proven that they will use them in an unlawful manner. I do disagree with many of the offenses that do prohibit you but thats a separate issue. I think there should also be ways over time that a person can regain those rights other than through a Presidential pardon.

I am currently studying Va laws on private sales. I have read a couple things that would lead me to believe that there should be some checks and balances. In Pa we can sell a rifle FTF with a in state resident that has a valid drivers license. My policy is that the person must have a LTCF in order for me to be comfortable with who I am dealing with and I am more comfortable doing ALL transfers through FFL's.

I struggle sometimes at what the proper balance is....

The hardcore 2a types will hate this post and they are welcome to voice in. I would like to hear some others stance on this also...

[joffe]

Personally I believe that the government has no business telling you what do to with your private property as long as you're not harming anyone. If I want to sell a rifle or a handgun to my friend I should be able to do so without suddenly becoming a fiat criminal by decree.

Sure, this means that the authorities will not be able to put a charge on criminals trading guns. But if they truly are criminals, and not just assumed to be (as those of us merely interested in trading privately without going through onerous processes would be), there is no need to create a new crime to nab them. If one starts on the 'if it saves one life' by saying that maybe this would stop one murder (as if criminals don't have their sources of firearms, and as if criminals get most of their guns at gun shows), then one isn't just starting on a very slippery slope but also using the Brady Campaign to Promote Gun Myths' argument as well, which is very unfortunate given that these people are pathological liars and make up the truth as they go.

On the more practical manner (I hate it when reality intrudes), I doubt the Heller decision is going to stop them from banning private unregulated sales. The justices left enough holes in that decision for 'reasonable regulation' that they can do pretty much anything that doesn't become a ban on ownership. (notice how ammo went unmentioned in that decision..)

[kenhwind]

In Florida there is several Counties in which you have to have a CCW /Concealed Carry Weapons lincense in order to buy or sell a firearm at a gun show.
If the "so-called gun show loop hole" was about background checks and not about "registration of every participant at one" I could buy it.
They want to ban "ALL private sales" and that is what closing the "guns show loop hole" is all about.

The Heller decision applies more to the DC gun ban than other restrictions. A $200 ownership tax is not a ban on so called "assault weapons"

[d90king]

Personally I believe that the government has no business telling you what do to with your private property as long as you're not harming anyone. If I want to sell a rifle or a handgun to my friend I should be able to do so without suddenly becoming a fiat criminal by decree.

Let me start by saying that in general I believe in less government period! We have given up countless rights to them as it is. They are self serving and do not represent "us" any more, they represent their own best interest and serve those who paid to get them elected .

Sure, this means that the authorities will not be able to put a charge on criminals trading guns.

I see this as a problem. If we can prevent criminals from getting firearms then we should. Criminals are the problem not the firearms. They bring law abiding citizens down because of their actions and because of that the public lumps us all together. It then makes our cause that much more difficult to fight.

But if they truly are criminals, and not just assumed to be (as those of us merely interested in trading privately without going through onerous processes would be)

There is a difference between a "collector" and a "criminal" and don't confuse the two.

As a collector you are obtaining firearms out of a passion, personal responsibility, a love of Sporting games with guns, hunting, the admiration of craftsmanship, historical pieces etc... As a criminal you are obtaining a firearm so you can use it to commit a crime.

For the record I have never found the paperwork and process difficult at all. It takes 10 minutes and if I lived in a state that infringed upon my rights to legally obtain firearms. I WOULD MOVE.

Brady Campaign to Promote Gun Myths' argument as well, which is very unfortunate given that these people are pathological liars and make up the truth as they go.


They are a very misguided group and we agree on that.

The justices left enough holes in that decision for 'reasonable regulation' that they can do pretty much anything that doesn't become a ban on ownership. (notice how ammo went unmentioned in that decision)


I have stated this since the ruling came out! We agree 100%. I believe that these are the holes that this administration will try and exploit. Ammo will be the first target IMHO. It is very easy to just say "who needs Russian surplus military ammo etc....

[KCShooter]

I also am one of those people that the staunch 2a proponents take issue with. I don't see anything wrong with a background check. It is a slippery slope, and I don't have the solution, but I don't think completely unregulated handgun sales are needed.

Maybe a license along the lines of hunting/fishing licenses, for $10, you get a one-year license to purchase without NICS checks, meaning you only have to show that license and a state ID card to buy?

For the strict 2a guys who say "What part of 'shall not be infringed' don't you understand?", it's the part that allows someone mentally unstable or a felon to purchase without the seller knowing your legal ability to own a gun.

I'd be horrified if I sold a gun face-to-face at a gun show to someone who wasn't able to legally buy it. Yeah, I know, there aren't many guns used in crimes that were bought at gun shows, but I sure wouldn't want to be the guy who sold one of those few that are, know what I mean?

[d90king]

They want to ban "ALL private sales" and that is what closing the "guns show loop hole" is all about.



I don't understand how this is a valid argument in todays society. I have never sold a firearm at a gun show and see no reason to do so with so many better options available.

You have auction sites, advertising sites and countless forums to sell your firearm through and at the end of the day you have a paper trail to cover any future liability with that firearm.

You also insure that you are not selling it to a dirt bag who is not able to pass the background check who wants to use it to do harm. Thats not to say that someone who passes a background check can't use it to do harm but at least you have done your part.

[denton]

Finding the right balance is not easy. People of good conscience will see things differently. My 2 cents...

We have basic liberties that are guaranteed by the Constitution, such as the right to free speech, freedom of the press, freedom of association, freedom of religion, and freedom to keep and bear arms.

The only one of these where we permit regulation before the fact is firearms.

Buy a printing press? You might commit libel or print counterfeit money. We deal with that as the violations happen after the purchase.

Join a social group? You might be getting yourself involved in a kooky group that robs banks to finance its operations, as the SLA did. We deal with that violation after you join, and if and when something bad happens.

Making a public speech? You might incite to riot, or slander someone. We deal with that violation after the fact. You don't need a license for a soapbox.

Buy a gun? The government tells you before the fact whether you can or cannot. I see that as overly intrusive.

There are, and ought to be laws against violent felons in possession of firearms. There ought to be some convenient way to keep guns out of the hands of crazies. People who have guns ought to keep them out of the reach of curious children. Beyond that, my assumption is that anyone not clearly shown to be a danger to themselves or others ought to be darn well free to do as they please.

[d90king]

Finding the right balance is not easy. People of good conscience will see things differently. My 2 cents...

+1

We have basic liberties that are guaranteed by the Constitution, such as the right to free speech, freedom of the press, freedom of association, freedom of religion, and freedom to keep and bear arms.

+2

The only one of these where we permit regulation before the fact is firearms.

+3

Buy a printing press? You might commit libel or print counterfeit money. We deal with that as the violations happen after the purchase.


Dont see any merit to this example.

Join a social group? You might be getting yourself involved in a kooky group that robs banks to finance its operations, as the SLA did. We deal with that violation after you join, and if and when something bad happens.

I think common sense should prevail and most people are smart enough to know what they are a part of.

Making a public speech? You might incite to riot, or slander someone. We deal with that violation after the fact. You don't need a license for a soapbox.


There are laws against and rights allowing all of the though and you "might" need a license depending on where you would like to place that soap box. ;)

Buy a gun? The government tells you before the fact whether you can or cannot.


Not true on a federal level and on most state levels with some exception. The government can only tell you that you CAN NOT by a firearm due to a crime you have committed. They do not sit back and say okay this guy is good and nah on the next etc. You have the right to obtain a firearm until YOU have lost that right. If you live in a state that denies you these rights then MOVE.

There are, and ought to be laws against violent felons in possession of firearms

There are and background checks help with this.

There ought to be some convenient way to keep guns out of the hands of crazies

There are and background checks help with this.

People who have guns ought to keep them out of the reach of curious children.

+4

Beyond that, my assumption is that anyone not clearly shown to be a danger to themselves or others ought to be darn well free to do as they please.

They are.

[joffe]

Let me start by saying that in general I believe in less government period! We have given up countless rights to them as it is. They are self serving and do not represent "us" any more, they represent their own best interest and serve those who paid to get them elected .
I don't doubt that you do, that was not my intention. I tried to remain as civil as I could, so I wouldn't step on any toes while making my case. :)

I see this as a problem. If we can prevent criminals from getting firearms then we should. Criminals are the problem not the firearms. They bring law abiding citizens down because of their actions and because of that the public lumps us all together. It then makes our cause that much more difficult to fight.
Here I see two quotes..
Criminals are the problem not the firearms.
If we can prevent criminals from getting firearms then we should.
In my opinion they are contradictory. Criminals are the problem, not firearms. We should punish actual crime, not criminalize possession or trade in firearms. It's this kind of handing government the pinky by allowing them to regulate dead objects instead of actual violent crime that allows them to grab the whole arm the way they have done and are doing.

There is a difference between a "collector" and a "criminal" and don't confuse the two.
Yes, there is, but whether or not someone who intends to murder or someone who intends to collect makes a private purchase, there's no difference. You should tell the politicians to not confuse the two, as that's what they are doing.

As a collector you are obtaining firearms out of a passion, personal responsibility, a love of Sporting games with guns, hunting, the admiration of craftsmanship, historical pieces etc... As a criminal you are obtaining a firearm so you can use it to commit a crime.
Yes, but apart from mind reading devices, how do you propose legislation should make a difference between these two? It can't. One of the ways would be to institute a licensing and registration scheme, to allow the 'sporters' to buy guns they might be licensed to have. I think we both agree on how desirable such a scheme is, and I think I, as a European, can tell you how 'well' that works for gun rights in case you're wondering. :(

For the record I have never found the paperwork and process difficult at all. It takes 10 minutes and if I lived in a state that infringed upon my rights to legally obtain firearms. I WOULD MOVE.
It's not about the process being 'difficult'. It's about the morals and ethics involved. It's not difficult for me to have a passport with an RFID chip embedded that contains all my biometric data as opposed to a regular passport. It's not difficult to walk through the streets if there's CCTV cameras monitoring everything as opposed to if there's not. Doesn't mean it's right. The old adage about the frog being slowly boiled applies here.

I have stated this since the ruling came out! We agree 100%. I believe that these are the holes that this administration will try and exploit. Ammo will be the first target IMHO. It is very easy to just say "who needs Russian surplus military ammo etc....
They wouldn't even need to rationalize it.. They could just quietly slap an insane import tariff on ammo and if asked claim it is to 'support American businesses', noone is going to dare criticize that nowadays. Then a few months later slap a regular, equally insane tax on ammo in general. Refuse to comment.

[denton]

My point is the method by which restraint is applied by the government is quite different for firearms than for other basic liberties.

In practically all other cases, we apply punishment after the fact for misuse of any of our basic liberties.

In the case of firearms, we apply it before the purchase. Absent the government's clearance, you cannot purchase any firearm from a dealer. That's prior restraint. Why do we tolerate that for guns and not for other basic liberties?

[Mannlicher]

So far as I can see, there have been zero gun laws that have accomplished the stated purpose, ie, keeping guns out of the hands of those folks that the government deems 'unsuited' for ownership.

Gun laws have been very successful though, in preventing honest Citizens from possessing the means to defend themselves.

Criminals do not follow the law......... but honest Citizens do.

Closing the gun show 'loophole' is nothing more than another effort at keeping Citizens at risk, and dependent on .gov.

[Rich-D]

I see both sides of the issue. I am a Pro-Gun Activist. However, keeping guns from felons appears to be a just cause.

In PA, all sales must go through the Instant Check System, The agreement to do so was made through negotiations with the NRA. Personally, I do have have a problem with the procedure. If it were not the case, what would stop a person from buying hundreds of guns a year and then going into the badlands of Philly and selling them out of their car to whomever had the cash.


Rich

[denton]

Before that law in PA, buying up large quantities of guns and trucking them to Philly for sale was commercially dealing in firearms. It already required an FFL, a bound book, and a form 4473 on each firearm sold in Philly.

[Rich-D]

One can buy as many guns as they desire in PA, without a license. Someone selling them for profit on the streets is not going to apply for an FFL license.

Rich

[d90king]

In PA, all sales must go through the Instant Check System,

In Pa you can do FTF transfers on long guns with a instate resident without PICS. If it is a nonresident it must go through a FFL and is subject to PICS. All handguns need FFL's and PICS.

[d90king]

One can buy as many guns as they desire in PA, without a license.
Rich


Kinda scary when you do think about the possible consequences..... Technically because of the FTF on long guns if done resident to resident someone could go buy 10 AK's or EBR's, turn around and sell them and the only person breaking the law would be the person buying the rifle who is "prohibited".

[Rich-D]

I should have been clear on that point:

Transfers of "all" firearms (handguns, rifles and shotguns) by a licensed dealer are subject to an instant records check of the purchaser.

Rifles and shotguns may be transferred between unlicensed individuals.


Rich

[kenhwind]

Federal Law allows an individual to sell his own possesions. Gun Shows ain't the problem here. I certainly would not sell a firearms to somebody that was acting strange or nervous at a show.
Closing the "Gun Show loop-hole' is about ending all private sales of firearms, on the Net and at gun shows.
This contradicts everything America was founded on.
Background checks are fine, you have a speeding ticket and are turned down for a purchase, your name matches somebody else's, you're turned down. This happens.
I will say this here and know, we seem to agree about ,felons, fruitcakes,etc. and we all seem to see the slippery slope that we are sliding down.
BTW: I don't have a problem with the background check or a three day waiting period. A background check at gunshows is fine, but it ain't about closing any "loop hole"
The Background check can be used to deny a purchase at whim, and this has happened too.

[denton]

only person breaking the law would be the person buying the rifle who is "prohibited".

I think that is not correct.

If you are in the business of selling firearms, you need an FFL and you are required to use the form 4473 and so forth. Buying up 10 rifles and reselling them is surely being in the business.

There have been cases where BATFE has seriously hassled collectors who have sold just two or three firearms out of their collection.

Unfortunately, there is no bright line. But I guarantee that if you haul 10 AK's to Philly and sell them out of your trunk with no FFL you are violating federal law.

[kenhwind]

I see what you mean, and see this at the Gun Shows here in FL.
Technically you cannot buy and sell firearms without a FFL. most collectors like to do some sort of trade. Or sell and buy. ATF has been at the shows here in NE FL, giving out gun locks and brochures.
Yes if I fill my car up with ordnance and go sell it in the city, this is a blatant disregard for the law, State, Local ,and Federal

[Rich-D]

Denton...Quote: "But I guarantee that if you haul 10 AK's to Philly and sell them out of your trunk with no FFL you are violating federal law."

So, if I decide to sell off a large portion of my collection of over 100 firearms, which I may actually do within the next year! Which Law or Regulation will I be violating?


Rich

[KCShooter]

Therein lies the rub.

You legally COULD sell off a trunk full of AK's in private party face-to-face transfers. Long gun transfers, in my state at least, require no FFL or paperwork of any kind.

If Rich sells off one of his guns face-to-face with no paperwork, he's not breaking the law. If he sold off 50 in the same way, it's still not violating a law.

[d90king]

I think that is not correct.

If you are in the business of selling firearms, you need an FFL and you are required to use the form 4473 and so forth. Buying up 10 rifles and reselling them is surely being in the business.

There have been cases where BATFE has seriously hassled collectors who have sold just two or three firearms out of their collection.

Unfortunately, there is no bright line. But I guarantee that if you haul 10 AK's to Philly and sell them out of your trunk with no FFL you are violating federal law.




You are only violating the law if you are selling them to "make a profit" or if you are selling them to someone that you know is a "prohibited person".

In Pa you are allowed to sell FTF on rifles with another Pa resident with proper ID. If I buy a rifle and don't like it and sell it to my neighbor I am breaking no laws and there is no law broken. There is also no paperwork involved....... Remember Pa has no "registry".. If it did it would require paperwork and registration.

[d90king]

Federal Law allows an individual to sell his own possesions. Gun Shows ain't the problem here. I certainly would not sell a firearms to somebody that was acting strange or nervous at a show.
Closing the "Gun Show loop-hole' is about ending all private sales of firearms, on the Net and at gun shows.
This contradicts everything America was founded on.
Background checks are fine, you have a speeding ticket and are turned down for a purchase, your name matches somebody else's, you're turned down. This happens.
I will say this here and know, we seem to agree about ,felons, fruitcakes,etc. and we all seem to see the slippery slope that we are sliding down.
BTW: I don't have a problem with the background check or a three day waiting period. A background check at gunshows is fine, but it ain't about closing any "loop hole"
The Background check can be used to deny a purchase at whim, and this has happened too.


This is where discussion like this becomes very difficult ..........

Each states have different laws that the people are governed by and therefore it is difficult to litigate on a state level.

In states that have constitutions protecting your right to bear arms it is very different from lets say Calif....

In Pa they MUST have a reason such as a criminal record or previous PFA against you etc to deny a purchase. They have less than 30 days to respond to a challenge letter in the case of mistaken identity and must give the reason for a denial...

Traffic violations such as "speeding" tickets are not grounds for denials. 3 DUI's might....

Funny I have no problem with a background check but I have a big problem with any 3 day wait period or "cooling off" period.

I dont see how closing down private gun sales does anything to reduce crime, If the sales are done properly and legally. I would prefer that people undergo background checks but that is just MY personal preference.

[denton]

Your state laws may be more restrictive, but the applicable federal law is the Firearm Owners Protection Act, FOPA.

The definitive history and explanation of FOPA and federal gun laws in general is at
full article here (http://www.guncite.com/journals/hardfopa.html)


Thus, it is not surprising that one of FOPA's major purposes was to "substantially narrow" the "broad parameters" of existing caselaw in this area.[243] Under the wording finally enacted, four elements must be proven to establish "engaging in the business" of dealing in firearms:
1. devotion of time, attention and labor to such dealing;
2. as a regular course of trade or business;
3. with the principal objective of livelihood and profit;
4. through the repetitive purchase and resale of firearms.[244](p.631)

In general, collectors are allowed to sell off items out of their personal collection. One rule of thumb that is sometimes seen is five or fewer per year, but that doesn't seem to have any actual basis in law.

The key indicator is the principal objective of livelihood and profit.

If you buy 10 AKs, load them in your trunk, and sell them on the streets of Philly your main objective is clearly livelihood and profit. If the BATFE knows of this, and you're doing it without an FFL and proper transfers, you will undoubtedly find yourself in legal difficulty. Whether you will be convicted is another issue. There is no bright line distinction between adjusting your collection and dealing for profit. BATFE tends to try to err on the side of sending people to jail.

[denton]

In states that have constitutions protecting your right to bear arms it is very different from lets say Calif....

Why does the California constitution not protect the individual right to keep and bear arms? There were careful notes taken at their first constitutional convention. The discussion in the room was that they were feeling a little embarassed over the amount of text they had already borrowed from the federal constitution, and it was blindingly obvious that 2A protected an individual right that applied to all Californians. So they decided that it would be redundant and left it out.

[d90king]

So they decided that it would be redundant and left it out.



That is why it is important to be "left in" no pun intended.

Pa clearly spells out " the right of the citizens to bear arms in defense of themselves and the state shall NOT be questioned"


That doesn't seem to hard to keep in like the rest of the 40+ states did.

[kenhwind]

In FL the Florida Dept of Law Enforcement / FDLE does the background check for HCIS.
The FL background check pre-dates the Brady (I think) The background check was supposed to elimanate the 3 day wait, now we have both.
I would not have a problem with a background check at a gun show for a handgun, but my CCW should exempt me.
And I do realize that my reference to being turned down for frivolous reason is not the norm, but has happened.
And I believe that the wording in the FL Constitution is very similar to PA
California had waiting periods for a hundred years or so haven't they?

[Rich-D]

In PA we have Instant Check, it takes about 5 minutes or less. Only once did it take 15 minutes or so! No waiting period, no purchase limits, no money left!


Rich

[jman527]

In California (a place I'm not always proud to live) our background check is done before you are done with the rest of the paperwork. However you still have to wait ten days to take your gun home. The thing I don't get is, I have other guns registered. Why would I wait ten days to get another one when i can use one I alread have and know how to use?

[Frank]

...Dave Hardy, a prominent 2A attorney, is supporting the notion that Heller does NOT allow such a restriction. Apparently, Heller allows regulation of commercial gun sales, not private sales....The thing is that at this stage we really don't know what sort of regulation Heller (or really, the Second Amendment) would allow.

There is, however, a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

But we will have to wait for actual cases to see (1) if the courts apply this test; and (2) how.

My own "best guess" at this point is that such things as background checks would survive challenge. It's also likely that laws, such as in California, that require private party sales to go through a dealer for the purposes of conducting a background check, would also have a strong likelihood of surviving a Constitutional challenge. But I don't see anything in Heller that would distinguish between private transfers and commercial transfers.

Federal Law allows an individual to sell his own possesions. Gun Shows ain't the problem here. I certainly would not sell a firearms to somebody that was acting strange or nervous at a show. Closing the "Gun Show loop-hole' is about ending all private sales of firearms, ...Federal law already prohibits private transfers of handguns between residents of different states. It doesn't regulate transfers of handguns between residents of the same state only because Congress lacks the power to directly regulate intrastate commerce. However, if I'm not mistaken federal law does define who might be considered a firearms dealer based his volume of activity, so federal law could perhaps reach a "high volume" private seller and require that he have an FFL.

Of course these rules haven't yet been tested in our post Heller world.

[d90king]

Federal law already prohibits private transfers of handguns between residents of different states. It doesn't regulate transfers of handguns between residents of the same state only because Congress lacks the power to directly regulate intrastate commerce. However, if I'm not mistaken federal law does define who might be considered a firearms dealer based his volume of activity, so federal law could perhaps reach a "high volume" private seller and require that he have an FFL.



Interesting, in Pa which is a very pro 2a state, the law requires that the only firearms that can be sold FTF are "long guns" . I was under the impression (obviously the wrong impression) that all handgun transfers had to go through a FFL due to the fed background check.

In Pa, when buying a rifle there is only one form to fill out and you still go through PICS. For the purchase of a handgun it requires two forms, one for the state and one for the fed requirements.

Frank any insight on this matter?

[d90king]

The thing is that at this stage we really don't know what sort of regulation Heller (or really, the Second Amendment) would allow.

There is, however, a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

But we will have to wait for actual cases to see (1) if the courts apply this test; and (2) how.

My own "best guess" at this point is that such things as background checks would survive challenge. It's also likely that laws, such as in California, that require private party sales to go through a dealer for the purposes of conducting a background check, would also have a strong likelihood of surviving a Constitutional challenge. But I don't see anything in Heller that would distinguish between private transfers and commercial transfers.

Federal law already prohibits private transfers of handguns between residents of different states. It doesn't regulate transfers of handguns between residents of the same state only because Congress lacks the power to directly regulate intrastate commerce. However, if I'm not mistaken federal law does define who might be considered a firearms dealer based his volume of activity, so federal law could perhaps reach a "high volume" private seller and require that he have an FFL.

Of course these rules haven't yet been tested in our post Heller world.


Frank, thanks for the great legal perspective it is much appreciated.

[Frank]

...the law requires that the only firearms that can be sold FTF are "long guns" . I was under the impression (obviously the wrong impression) that all handgun transfers had to go through a FFL due to the fed background check....That could be the case, but it could be a matter of state rather than federal law. That's that way it is in California. All transfers, even private party sales, go through an FFL as a matter of state law. Whenever I've bought a gun here in a private transaction, I've complete, as required by state law, both a state form (DROS) and a federal form (4473).

That's my guess anyway, at least without doing the research into Pennsylvania law.

[d90king]

That could be the case, but it could be a matter of state rather than federal law. That's that way it is in California. All transfers, even private party sales, go through an FFL as a matter of state law. Whenever I've bought a gun here in a private transaction, I've complete, as required by state law, both a state form (DROS) and a federal form (4473).

That's my guess anyway, at least without doing the research into Pennsylvania law.
That is Pa law, it also sounds like the same as you have in Ca. My point was I was under the impression that the Fed requirements on the transfers of handguns was a federal statute that blanketed all states. It appears that is not the case and that is the core of the "loophole" that is always referred to.

I am surprised that States would not want to do background checks on handguns for all buyers. My guess is that it's being fought over "registry" type issues in those states. Odd though because Pa has no "registry" yet requires PICS on all handguns.

The part that I don't get is, there is no downside to law abiding citizens in a background check. It also allows the seller a paper trail so that the ownership of that weapon can't be used against him. It "helps" keep guns out of the hands of those who should not have them due to previous choices that they have made. What am I missing as a very strong 2a supporter?

[Frank]

The part that I don't get is, there is no downside to law abiding citizens in a background check.... It "helps" keep guns out of the hands of those who should not have them due to previous choices that they have made. What am I missing as a very strong 2a supporter?First, just so that we're all clear about where I personally stand, I agree with you, Patrick. I don't have a problem with background checks. I know, however, that there are ardent 2nd Amendment supporters who don't like them.

I won't presume to speak for those who are opposed to background checks, but at least some of the arguments I've heard are (with my perspective in parentheses):

[1] The 2nd Amendment doesn't permit any infringement on the RKBA, so background checks are unconstitutional. (But (1) in real life a law is not unconstitutional until a court says so; and (2) as previously discussed, it's established constitutional law that constitutionally projected rights may be subject to limited regulation meeting certain standards.)

[2] Unsuitable people will still get guns. (But I see no reason to make it easier for them to do so, especially when making it harder for them causes me only minimal inconvenience.)

[3] We don't require background checks for knives, shovels, pointy sticks or any number of other things that can be used as weapons. (But, among other things, (1) guns are particular efficient weapons; and (2) there hasn't been the political pressure or support for the installation and maintenance of an elaborate and expensive background check system for the purchase of knives, shovels or pointy sticks, at least not yet, so let's not give the nannies any ideas.)

[Rich-D]

I agree with Patrick and Frank! An NICS check is not an intrusion on the right to purchase or bear arms for the law abiding.

However, I do not agree with waiting periods, none here in PA. Nor the provision that a domestic incident should "automatically" disqualify one from possessing firearms for life. I believe each incident should be weighed by the facts.

I had a protection from abuse order issued against me! The order included the immediate confiscation of all of my firearms. However, I went to the Sheriff's Office and showed that a photocopy of the order was served on me by the complainant. An ex-girlfriend, in spite of the fact, that the order clearly stated that I was so dangerous, that only Law Enforcement Officers were to serve it. The Sheriff's Dept agreed that I could retain the firearms until the court date.

I prevailed in court, acting as my own attorney!


Rich

[d90king]

[1] The 2nd Amendment doesn't permit any infringement on the RKBA, so background checks are unconstitutional. (But (1) in real life a law is not unconstitutional until a court says so; and (2) as previously discussed, it's established constitutional law that constitutionally projected rights may be subject to limited regulation meeting certain standards.)

[2] Unsuitable people will still get guns. (But I see no reason to make it easier for them to do so, especially when making it harder for them causes me only minimal inconvenience.)

[3] We don't require background checks for knives, shovels, pointy sticks or any number of other things that can be used as weapons. (But, among other things, (1) guns are particular efficient weapons; and (2) there hasn't been the political pressure or support for the installation and maintenance of an elaborate and expensive background check system for the purchase of knives, shovels or pointy sticks, at least not yet, so let's not give the nannies any ideas.)


Thanks for your perspective Frank!

On you first point here is my perspective; You are born with certain rights that no person nor government can take away from you. However we have laws that when broken cause you to lose certain rights because you have proven yourself to be a "danger" to others. John Adams said "we are a land of laws", with laws come consequences when they are broken.

Now once that is established, doesn't the government have a "duty" to protect the "people" from a purchase of a firearm by a person who's past actions and choices have shown them to be a "danger" to society?

I will say that there has been a pile on effect over the years that I do think is wrong. I don't think that you should lose your rights for many of the things that have over time been piled onto the books. I also believe that on certain things you should be able to regain those right after time without having to have a presidential pardon.

You are correct criminals will always still get firearms however at the least the government is trying to do its "duty" in protecting the public by enforcing the law. Criminals by the very definition of their label have shown no regard for law. By having a small safety net in place to maybe catch a few of the "bad guys" I don't see how that in any way infringes upon the law abiding citizen.

Your 3rd point:
When you are convicted of a crime you don't give up your rights to all of the things that you mentioned with the exception of a car based on DUI etc.... Kind of ironic that the automobile and physicians are amongst the most lethal things in society. Yet you never hear chatter to ban them......

[d90king]

[QUOTE=Rich-D]I agree with Patrick and Frank! An NICS check is not an intrusion on the right to purchase or bear arms for the law abiding.

However, I do not agree with waiting periods, none here in PA. Nor the provision that a domestic incident should "automatically" disqualify one from possessing firearms for life. I believe each incident should be weighed by the facts.

I had a protection from abuse order issued against me! The order included the immediate confiscation of all of my firearms. However, I went to the Sheriff's Office and showed that a photocopy of the order was served on me by the complainant. An ex-girlfriend, in spite of the fact, that the order clearly stated that I was so dangerous, that only Law Enforcement Officers were to serve it. The Sheriff's Dept agreed that I could retain the firearms until the court date.

I prevailed in court, acting as my own attorney!

I agree that there has been a pile on effect in some of the offense's that cause people to lose the right to protect themselves and their family.

I also strongly oppose any waiting period or "cooling off" timeline before you are permitted to purchase a firearm.

I strongly agree with you on the PFA laws. The main reason is that PFA's are now commonly used in "civil' actions as a tool to gain an upper hand, often by lawyers and law enforcement, not a jury. The bar is not defined properly when it comes to PFA's and I believe that is an area of concern. To many times they are used against innocent people and almost always towards men (not always but far to often).

Kudos to you for being able to overcome a false accusation. Far to many times innocent people are unable to and end up losing their rights for no reason.

[kenhwind]

OK. Now the background check per say is not the issue. I don't have a problem with it.
The legislation that I had read that proposed to close the so called "gun show loop-hole" was a blatant attempt to ban private sales and register every participant at said gun shows with the Feds.
On the other hand what happens when the DOJ turns the NCIS swith to the off mode. No more gun sales.
Another question; In CA and PA you fill out State and FED paper work, do you go through two background checks and does State law prohibit record keeping as FL law does. I'm curious.
PA has no waiting period for handguns?

Gee; SpellCheck wanted to correct NCIS to NAZIS!

[Frank]

...The legislation that I had read that proposed to close the so called "gun show loop-hole" was a blatant attempt to ban private sales and register every participant at said gun shows with the Feds....I haven't seen the legislation your referring to, so I can't really comment. But just because something has been proposed doesn't mean it's going to be enacted, or enacted in its present form. Trying to kill legislation you don't like, or trying to get is modified into a form you can live with, is what lobbying and the negotiation part of the legislative process is all about.

...In CA and PA you fill out State and FED paper work, do you go through two background checks and does State law prohibit record keeping as FL law does. I'm curious.... I don't know about Pennsylvania, but in California handguns are registered, so of course records are kept. Long guns aren't registered in California, so AFAIK, no records are kept.

.. Kind of ironic that the automobile and physicians are amongst the most lethal things in society. Yet you never hear chatter to ban them...... But both are heavily regulated. If you drive a car, you're required to be licensed, the car is registered, it may be subject, in some states, to period inspections, you may be required to carry insurance, etc.

To be a physician, you must satisfy a stringent education requirement, be licensed by the state, and be subject to oversight by a licensing agency. And if a physician wants to be able to admit patients to a hospital, he will be subject to peer review and monitoring by a hospital medical staff. Imagine the screaming you'd hear if CCW holders were subject to a similar level of scrutiny.

(It just occurred to me that in a sense those of us who participate in the organized shooting sports or regularly undertake formal training, are, in effect, undergoing a type of peer review. We are performing under the eyes of other shooters, including designated officials. Our gun handling skills and safety habits are being monitored and lapses will be brought to out attention and dealt with. And our level of competence will be apparent in comparison with that of other shooters.)

[dogdollar]

As I write this, there is a very large gunshow going on in Pasadena, about 15 miles away from Casa de Dogdollar. I was there yesterday and, as usual these days, the place was packed.
Here's the thing.....in Texas, any private gun owner can lawfully sell a weapon to any other private individual, and these kinds of transactions are actually quite common. As you would expect, the majority of these deals are done by responsible people, and in a responsible manner, but it is still true that anyone, felon or not, of lawful age or not, legal citizen or not, clinically psychotic or not, can go to one of these shows and buy as many guns and as much ammo as he has money in his pocket, if he finds a motivated seller. No one has more respect for gun freedoms than I do. I feel like if my neighbor and I are talking one day and it turns out I may have a pistol or rifle he is interested in, I should be able to sell it to him and it's none of the government's business. Unfortunately, the freedom for me to be able to sell to my neighbor also allows this "gunshow loophole" scenario, and, frankly, I think something needs to be done.
It does not bode well for any responsible gun owner for psychopaths, murderers, miscreants, and maggots to have access to deadly weapons, under any circumstances.
Like it or not, it's a huge target on all of our backs, and if we don't find some solution, I worry that one will certainly be found for us.
DD

[Rich-D]

The huge difference in regulating the three, is the fact that Automobiles and Physicians are not protected by the Bill of Rights or State Constitutions!

Rich

[Rich-D]

DD, We are of the same mind! I do not sell any firearm without going through an FFL, who in turn performs an NICS check. It is a very small price to pay in freedom and funds, in order to maintain peace of mind and keep firearms out of the hands of felons.

Rich

[dogdollar]

To all,
First, thanks Rich, we are usually of the same mind and this is just another instance...
Now...I didn't realize there was already a large thread on the subject.
Mods please feel free to delete my thread or throw it in with the other if you deem it to be necessary.
Thanks and regards,
DD

[kenhwind]

Frank;
The proposed legislation I refered to was from a few years ago, it isn't worth looking for. I do agree with you though.
I kind of figured handguns were registered in CA.

[Frank]

The huge difference in regulating the three, is the fact that Automobiles and Physicians are not protected by the Bill of Rights or State Constitutions!However, we never want to lose sight of the fact (1) that constitutionally protected rights can nonetheless be subject to regulation; and (2) regulation, especially of such activities as the practice of a profession, can implicate various constitutionally protected rights, like due process and equal protection.

Some people object to requirements for a permit to carry a concealed weapon. It's an infringement, and what part of "shall not be infringed" don't you understand? But could a state make a case that there is a compelling state interest in assuring that persons legally carrying concealed weapons are of age, have a clean record, know the applicable law and meet some minimum level of competence? We really won't know until it comes before a court, but I'm not going to bet against it.

[d90king]

I could redirect you to many of my post on just this topic, but I wont.

I agree 100% with your post! I struggle with what the proper balance is. I believe strongly that peoples personal property is just that "their property" and with that comes you should be able to do with it as you wish.

The other side of it is, we as a community of responsible gun owners have a responsibility to make sure that "our" firearms do not end up in the hands of criminals or people who have lost their rights to firearm ownership. If we sell a gun to someone that is not properly vetted and is a criminal than we have helped make that criminals job easier and it will also reflect poorly on our community as a whole when that gun is used in a crime.

Criminals will always be able to obtain guns, they just wont get one of MINE.

It is a very thin line to walk, and I believe it lies on the backs of the responsible gun owners to do the "right" thing. Remembering that the right thing is often not the easiest thing or the most profitable thing.

I have never sold a gun to an individual that didn't go through a FFL. I do not see going through a background check as an infringement on my rights in any way.

[kenhwind]

It may be an Infringement, like the background checks, but on the other hand it does differentiate, between who can and who can't.
If having a CCW allows me to tote a knife, a handgun so be it.
It seems that most state laws regulate the carrying of weapons, while FED law does not so to say.
The concealed carry permit eliminates a technicality. I can carry my gun, not everywhere of course, but at least I can have it with me sanctioned by law.

[d90king]

Another question; In CA and PA you fill out State and FED paper work, do you go through two background checks and does State law prohibit record keeping as FL law does.


In Pa you only go through one check depending on the type of firearm you are buying. If it is a handgun NICS is used, if a rifle you go through PICS. They actually could be the same though because I think PICS runs the check.

Pa is a "no registry" state also. Keep in mind that does not mean a hill of beans though. The FFL is required to keep records of all sales so in some capacity that usurps a "registry" at times. Manufactures are required to release who the guns are sold to........ so if a gun is recovered it is very easy to trace back to the original buyer.

Rich might be able to shed some light on how they go backwards in a investigation to find where it came from....