FFLs, B/G Checks, the Gun Show "Loophole" and that pesky Constitution

[bynmdsue]

I don't know if this has been brought up yet but the Federal government would appear to have no authority to require or enforce background checks on firearm sales between private individuals.

The current system of FFL dealers and persons prohibited from purchasing firearms was created in the Gun Control Act of 1968.http://en.wikipedia.org/wiki/Gun_Control_Act_of_1968 Using the Commerce Clause of the U.S. Constitution, Congress instituted a system of approved firearms dealers who were the only people allowed to receive firearms shipped across state lines. Manufacturers could only sell their firearms to approved dealers which required the guns to enter the FFL system administered by the ATF.

A person selling a gun from their collection to someone in the same state is outside the Feds' purview. It has to be regulated by State laws.

 

[Ranb]

The NFA of 1934 requires that title 2 guns only be made or transferred with BATFE authorization. This includes a background check/fingerprints for individuals. The regs will change soon to include trusts and other business entities.

The NICS system can't be used for private sales. WA State is trying to pass a bill that requires a NICS check for private sales thus eliminating those sales for anyone who doesn't have a concealed weapons permit.

Ranb

 

[Checkmite]

I don't know if this has been brought up yet but the Federal government would appear to have no authority to require or enforce background checks on firearm sales between private individuals.

Good point. I should be able to give a gun to anyone I want, whether they're a child molester or a wife beater or just got out of prison for attempted homicide. Their money's green, that's the pertinent thing. I think that we should resist any attempt by the evil, tyrannical government to make it our problem that we're arming criminals. We're law-abiding citizens after all, no matter what people do with the guns we give them.

 

[bynmdsue]

Good point. I should be able to give a gun to anyone I want, whether they're a child molester or a wife beater or just got out of prison for attempted homicide. Their money's green, that's the pertinent thing. I think that we should resist any attempt by the evil, tyrannical government to make it our problem that we're arming criminals. We're law-abiding citizens after all, no matter what people do with the guns we give them.

Har har. There's all sorts of wonderful things the government should do or "wouldn't it be great if they would only..." but the question is can they? Do they have the legal authority to? Is it within their powers? And notice this has nothing to do with the 2nd Amendment but with the Commerce Clause. Can they further expand their powers under the CC to regulate transactions between private non-gun dealers within the same state?

 

[qayak]

Good point. I should be able to give a gun to anyone I want, whether they're a child molester or a wife beater or just got out of prison for attempted homicide. Their money's green, that's the pertinent thing. I think that we should resist any attempt by the evil, tyrannical government to make it our problem that we're arming criminals. We're law-abiding citizens after all, no matter what people do with the guns we give them.

Yup. Private sales already go something like this:

Seller: You got any ID?

Buyer: Duh . . . I got dis mental ward ID bracelet and a blue crayon!

Seller: Well, your money's good here, pal! Congratulations on your new AR-15!

 

[Dancing David]

I seem to recall that in my state you have to register the sale of any motor vehicle and record the title transfer.

 

[SomedayGirl]

But cars aren't mentioned specifically in the bill of rights!!!

/Wayne LaPierre

More saliently perhaps, I think the reasons for named title transfer of a car - or a house, say - is for establishment of property rights and tax collection, not to make a cursory determination that the car or house buyer is in some way safe or qualified.

 

[cwalner]

But cars aren't mentioned specifically in the bill of rights!!!

/Wayne LaPierre

More saliently perhaps, I think the reasons for named title transfer of a car - or a house, say - is for establishment of property rights and tax collection, not to make a cursory determination that the car or house buyer is in some way safe or qualified.

I think you are on to something, there. We just need to declare guns as real property, then we can require title transfers just like all other real property.

 

[Nessie]

I don't believe that the present mess that kind of passes for gun control in the USA is at fault. There is no reason to believe that uniform sensible gun control would not have a huge beneficial impact on the rate of gun deaths.

The problem is a section of gun owners/dealers and makers have managed to spoil and wreck attempts to have sensible gun control. The NRA have been a part of that in modern times, but individuals and other groups have played a role.

I am sure that is why as time passes since Sandy Hook little sensible has been done and the present situation will prevail. It suits a minority of gun owners/dealers/makers to have this mess and surrounding fear of crime it causes. I think that minority are very disturbed and disturbing people.

 

[Bikewer]

I was around, and buying guns, before the '68 law was passed. For those that don't recall, that bit of legislation was primarily due to the assassination of President Kennedy.
Prior to same, there were few if any restrictions on interstate commerce in firearms. One could freely buy all manner of weapons by mail order in most states.
All of the gun magazines back then carried big, full-page ads for just about anything you could think of, all at rather low prices.
One could even purchase such items as 20mm cannon (Something that Steve Allen actually gave away as a prize on a Tonight Show contest.)

I used to regularly go across the river to Illinois to buy firearms, all entirely legal. No questions asked.
At the time, Missouri had a "permit to purchase" a handgun, which would be issued by the "sheriff of the county in which you reside". The procedure for obtaining the permit varied wildly county by county.
But you could drive 20 minutes to across-the-river Edwardsville and buy all you liked; no permit required.
A few years later, when I actually worked for the county police, I did a year in the records division actually selling those gun permits.
In order to buy a pistol in a manner that satisfied Missouri law, (In St. Louis County) you had to first pick out the weapon at a dealer, then apply for the permit. This required an application form, a records check, and three letters of recommendation from local people on letterhead stationary. (business owners, professional people, etc.)
Now, the law was written in such manner that ANY transfer of a handgun required this permit. Even lending a weapon to someone to go target shooting.

But no one paid the slightest attention. People freely bought, sold, and traded weapons among themselves, or inherited them, or brought them in from other states. Occasionally they'd call and want to know if they had to "register" them. There was no such requirement, only the permit to purchase.
We would "register" the weapon as a courtesy if the person desired. (figured it was better than nothing)
As I said, this permitting process varied wildly county to county, as individual sheriffs essentially had the say-so.
In one, if you were a friend of the guy, you could just walk into the office and get a permit. If not.... No such luck. Or, you might be required to fork over a gratuity....
We had no restriction as to how many handguns you could own, we realized that there were many collectors. However, in the city of St. Louis, they figured, "what, another pistol? You already have one."
A very loosely-organized hodgepodge of laws and regulations, unevenly applied.

 

[Nessie]

That is so different from the UK. The Firearms Act 1968 meant it was a local (as in by the police force, so roughly by county) responsibility to organise certificates and do checks. It was up to the chief police officer of that area to decide what details are asked for with an additional requirement for photos and referees. So the UK could have very loosely applied that, but instead it was rigorously applied and people found to have guns without a certificate were severely punished.

For the first 20 or so years the firearms application form was two sides of an A4 with basic details of the applicant, what guns they had and where they would shoot. The massacres at Hungerford and Dumblane, which were both by certificate holders meant now the form can run to eight pages and it goes into more detail with questions about experience with guns and details about security and other people who live with the certificate holder.

Like you Bikewar I have worked in licensing and it would appear a major reason for the difference between the USA and UK's gun deaths is down to application of the law and how consistent and rigorous such is. The UKs approach is consistent and rigorous, the USA is neither.

 

[Hazel]

I think you are on to something, there. We just need to declare guns as real property, then we can require title transfers just like all other real property.

And then slap a property tax on them? You'd soon find you were buying the gun over and over.

 

[brodski]

I don't know if this has been brought up yet but the Federal government would appear to have no authority to require or enforce background checks on firearm sales between private individuals.

The current system of FFL dealers and persons prohibited from purchasing firearms was created in the Gun Control Act of 1968.http://en.wikipedia.org/wiki/Gun_Control_Act_of_1968 Using the Commerce Clause of the U.S. Constitution, Congress instituted a system of approved firearms dealers who were the only people allowed to receive firearms shipped across state lines. Manufacturers could only sell their firearms to approved dealers which required the guns to enter the FFL system administered by the ATF.

A person selling a gun from their collection to someone in the same state is outside the Feds' purview. It has to be regulated by State laws.

The case law on the commerce clause disagrees with this argument. Most cases have involved line 64 civil rights act which relied on a very wide reading of the commerce clause. SCOUTS has upheld this wide reading.

 

[JoeTheJuggler]

The case law on the commerce clause disagrees with this argument. Most cases have involved line 64 civil rights act which relied on a very wide reading of the commerce clause. SCOUTS has upheld this wide reading.

Yeah, I have a difficult time thinking a court that gave us Gonzales v. Raich putting growing pot for your own consumption under the federal CC authority would shy away from federal regulation of private gun sales that taken in aggregate have a large effect on interstate commerce --if nothing else for the costs of so much gun violence--and involve, very often, guns manufactured outside the state and taking place at gun shows often organized at the interstate level.

 

[JoeTheJuggler]

I think you are on to something, there. We just need to declare guns as real property, then we can require title transfers just like all other real property.

But I don't think there are currently any barriers to state regulation of private gun sales anyway, so this really isn't necessary. (Real property titles--cars and such-- are handled by the states.)

The issue is that the private sale loophole at the federal level makes for a patchwork of differing state laws on these sales and no national standard (especially requiring background checks).

 

[Dancing David]

But cars aren't mentioned specifically in the bill of rights!!!

/Wayne LaPierre

More saliently perhaps, I think the reasons for named title transfer of a car - or a house, say - is for establishment of property rights and tax collection, not to make a cursory determination that the car or house buyer is in some way safe or qualified.

Yet obviously somebody is transferring arms to people who by law are not supposed to have them, how do we control the transfer if we don't track the transfers.

 

[qayak]

Because some posts make it seem otherwise, cars are not real property. They are personal/private property.

If the government can control the sale of vehicles, why not guns, they are both personal/private property involved in private sales?

 

[bynmdsue]

Which government? The local, state or feds?

 

[qayak]

Which government? The local, state or feds?

Well, local and state are a waste of time. They are perfect examples of where democracy breaks down. You will never get 50 governors to agree on anything. It would be nice if they could but history shows they never will.

That leaves federal.

 

[GregHouseMD]

I don't believe that the present mess that kind of passes for gun control in the USA is at fault. There is no reason to believe that uniform sensible gun control would not have a huge beneficial impact on the rate of gun deaths.

The problem is a section of gun owners/dealers and makers have managed to spoil and wreck attempts to have sensible gun control. The NRA have been a part of that in modern times, but individuals and other groups have played a role.

I am sure that is why as time passes since Sandy Hook little sensible has been done and the present situation will prevail. It suits a minority of gun owners/dealers/makers to have this mess and surrounding fear of crime it causes. I think that minority are very disturbed and disturbing people.

What this post and your latter post ITT demonstrate is a failure to understand the problem. It's not the guns, it's the people with the guns. Criminals are not going to fill out 8 page forms for guns that they bought out of the back of a van in an alley. The guy with the van isn't going to run a background check.

Gun free zones, while sounding great are in reality "Target Rich Environments" because the criminals know that the law abiding citizens, the people who they prey on, will obey the signs and leave their personal protection elsewhere. Most of the major mass shootings in the last 10 years or longer have taken place in "Gun Free Zones" why do you suppose that is? Because they demented people knew they would not be targeted by a good person with a gun since the CHL holders know they risk losing that right if they are observed carrying a gun in a gun free zone.

One man or woman with a gun in the Aurora theater or Sandy Hook Elementary could have saved lives and prevented injuries.

The most repressive and stringent gun control laws in the USA exist in the city of Chicago, the city with the highest murder rate in the country as well.

Nessie, I know you are a smart and decent person but you do not live in the USA. There are 2 distinctly different cultures involved and comparing the USA with Great Britain just does not make sense.

BTW, don't the locals refer to Nottingham as "Shootingham" due to all the gun crime there?