Universal Background Checks

Pudge said:

But a lot of this discussion is very helpful for understanding proposed legislation, much more so than media reports.

Click to expand...

Which will keep a discussion open in Legal.
The problem being that the speculation brought on by the dismal accuracy of press reporting, and knee-jerk responses to deliberately inflammatory headlines are what derails posts in Legal. Which is why there is a stricture to rely on quotable, cite able, law and legislation.
Arguing over facts is far more productive than arguing over speculations, is the intent.

My point about this being bad fodder for Legal is that House legislation sent to the Senate is about as concrete as unset Jello. Senate Reconciliation (after going through the Byzantine track of myriad Committees and Sub-Committees) is like to redline, strike, or otherwise edit swathes of legislation. And for any number of non-THR reasons.

CapnMac said:

Which will keep a discussion open in Legal.
The problem being that the speculation brought on by the dismal accuracy of press reporting, and knee-jerk responses to deliberately inflammatory headlines are what derails posts in Legal. Which is why there is a stricture to rely on quotable, cite able, law and legislation.
Arguing over facts is far more productive than arguing over speculations, is the intent.

My point about this being bad fodder for Legal is that House legislation sent to the Senate is about as concrete as unset Jello. Senate Reconciliation (after going through the Byzantine track of myriad Committees and Sub-Committees) is like to redline, strike, or otherwise edit swathes of legislation. And for any number of non-THR reasons.

Click to expand...

You've got a lot of $5 words in there CAPT. That alone makes it appropriate for the Legal Forum. Now you just need to throw in a few Latin phrases and you'll be ready to pass the bar exam

The current BC law has been enforced for many years. Don't ya think a UBC would be enforced the same way and with the same authority?

Sniper66 said:

The current BC law has been enforced for many years. Don't ya think a UBC would be enforced the same way and with the same authority?

Click to expand...

That presumes some things. Which we don't know as the language is in flux.
Currently, a NICS check* only occurs in those States which are not POC (Point of Contact), and for only those occurring at an FFL.

HR8, as published, requires all transfers to go through an FFL and follow the procedures the FFL must go through. Family transfers & gifts are permitted, parent or grandparent to child or grandchild, aunts/uncles to niece/nephews (presumably 1st only). Transfer to protect life in "immediate threat"; temporary loans related to ranges, hunting, and some agricultural-related shooting, are also exempt.

Now, a person living in rural Wyoming, might have to cross the state just to sell a firearm to his neighbor. Which will mean having to find an FFL who will agree to be an intermediary, and that both parties are willing to pay such fees as the FFL is inclined to charge.

Whether Congress has the authority to regulate sales/transfers of specific personal property is a different and larger question. The authority to regulate how a Federally-licensed Dealer operates is somewhat less murky.

________________________
*Federal NICS is nothing but a blacklist meant to be all the known Prohibited Persons, if a person's name is not on the list, they get a Proceed. It's not actually a 'background check' in the sense that an actual person checks all the possible databases and returns a result of that research.

to the best of my understanding here in Texas I can sell a firearm or buy one from any individual without any background check. the caveat being that if I sell to an individual who is a felon then I am in violation of the law. it is my understanding that I am responsible to be pretty sure the individual to whom I am selling is a responsible and person and without arrests or convictions that would disqualify them from owning a firearm. am I correct and wouldn't a "universal background check" involve the gov't(IE thru an FFL)in the sale of private property between individuals who are not "dealers."? hope I made this question clear.

DJW said:

to the best of my understanding here in Texas I can sell a firearm or buy one from any individual without any background check. the caveat being that if I sell to an individual who is a felon then I am in violation of the law. it is my understanding that I am responsible to be pretty sure the individual to whom I am selling is a responsible and person and without arrests or convictions that would disqualify them from owning a firearm. am I correct and wouldn't a "universal background check" involve the gov't(IE thru an FFL)in the sale of private property between individuals who are not "dealers."? hope I made this question clear.

Click to expand...

That’s what people generally mean when they say “universal background check.” They mean a prohibition on the private sale of firearms.

so we are talking about eliminating my right to sell my private property to another individual? and we are talking about involving the government in private transactions? and yes, I am always very careful to reasonably investigate any buyer and accept responsibility for their actions with what I have sold to them. this proposed legislation sounds to me like a step towards involving the government in ALL transactions involving firearms and that sounds like a bad idea IMHO.

These laws end up making it impossible to lend a firearm to your brother when he comes for a visit and decides he wants to go hunting.

DJW said:

so we are talking about eliminating my right to sell my private property to another individual? and we are talking about involving the government in private transactions? and yes, I am always very careful to reasonably investigate any buyer and accept responsibility for their actions with what I have sold to them. this proposed legislation sounds to me like a step towards involving the government in ALL transactions involving firearms and that sounds like a bad idea IMHO.

Click to expand...

Yep, but it’s not just a step. It’s the end of the race. UBC means the government knows about every firearm transfer that occurs. No UBC = illegal transfer. Proponents would liken it to buying or selling a car. You can’t just sell someone a car, you have to go to the county clerk/DMV and transfer the title. It’s your private property but you have to follow a specific set of rules in order to sell it legally.

Yes, I know there’s no Constitutional protections for cars. So do they. They don’t care.

Well, as our Fearless Leader still hasn't signed such an EO for UBC, there must be an interesting set of Political and enforcement reasons as to why he has Not.

What he 'signed' yesterday seems to reflect a policy of nervous, very cautious calculations of Realpolitik vs. reckless ideology; not the 'bold' but always-vague plans addressed in recent weeks.

Nobody is predicting the future, but at least 'their' nervousness seems to reveal their awareness of serious risks involved with anything regarding gun regulations.

Private Gun Sales Background Checks cost $39, $55, $65 dollars where they are now a state law.
The more influence Bloomberg/Everytown has had on the Universal Background Check UBC bills, the higher the fees in the state UBC laws.
Last time I checked Virginia State Police were doing federal NICS BG checks for private sales at gunshows for $3 or $5.
My conclusion is that UBC is a sin tax on private used guns sales intended to discourage private sales with background checks.
It does that. Really. Wanna know how many times I have done a private used gun transaction paying $39 for a BG check? Zero.

Maryland kept the "ballistic fingerprint" requirement long after the Maryland State Police said they were not enforcing it because it was useless in investigating or preventing crfimes. The politicians delayed repealing it because it added about $50 to the cost of a new gun and they saw that additional expense as discouraging gun purchases by low income people and that, to them, was good thing, even if the ballistic fingerprint program was so useless the MSP was not using it.

UBC is a sin tax against used gun buyers. The gun control/gun prohibitionists have long discussed using sin taxes to defacto ban guns.

OP - In theory, I agree.

I am not a Lawyer and don't profess to be anything but a guy who does his own research instead of listening to the media.

The Tenth Amendment’s simple language—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” this emphasizes that the inclusion of a bill of rights does not change the fundamental character of the national government.

In other words, this means is that the Federal government "Should" have power limited only to it's enumerated powers, and, that the first question involving an exercise of federal power should not be whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers.

While the 2nd amendment says "shall not be infringed", the Supreme Court (those that interpret the constitution) have ruled previously that infringed is not the same as having reasonable restrictions. i.e. 1st amendment and yelling Fire, 2nd and Felons cant buy a gun legally, etc.

So, we are back to, while the constitution does not specifically give power to the Fed to restrict rights, it does give power to the Supreme Court to interpret the constitution, and the SC has determined that Federal or State, can put reasonable restrictions on rights.

Now, The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, this is not found within the text of the Constitution itself, but from what I have read, was established in the case of Marbury v. Madison (1803).

The Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.

Is there case law that gives the Federal government the power to force states to abide by a UBC legislation? Seems like a state and not a federal issue when it comes to whether two private individuals can sell, trade, or gift a firearm to one another.

Click to expand...

So, my response to your question is: Does the Federal Government have the enumerated power to make such a law, and, if the answer to that is no, then it should be left to the states. I hope any "law" passed by congress, will at some point go the Supreme Court, and be interpreted using this guideline.

Just my opinion, and again, not a lawyer, judge, etc. and your opinion may be different.

d

My question is, will they change the laws on black powder arms with all of this?

Styx said:

Just about everything travels interstate in one way, shape, or form.... That would essentially give the Federal government complete power over states, and mean states had almost zero rights.

Be it that it may, then I do not see how the gifting of a firearm can fall under the Commerce Clause.
United States v. Lopez

Click to expand...

I wondered about this too. I have gifted firearms to my Son, Daughter, Son-In-Law and friends. How is that going to work in the future?

Terry G said:

I wondered about this too. I have gifted firearms to my Son, Daughter, Son-In-Law and friends. How is that going to work in the future?

Click to expand...

Supposedly the proposed bill has an exception for this. But like the 1994 NICS, in the future they'll say this is a insufficient and/or a loophole.

Carl N. Brown said:

Virginia State Police were doing federal NICS BG checks

Click to expand...

VA is POC, so, those checks probably only go to VBI.

NICS shut down access to POC States to alleviate workload several years back, if memory serves.

CapnMac said:

VA is POC, so, those checks probably only go to VBI.

Click to expand...

VA is a point of contact state, meaning dealers in VA contact a state agency for background checks, not FBI NICS directly.

NICS shut down access to POC States to alleviate workload several years back, if memory serves.

Click to expand...

Your memory failed you terribly.
POC states mean dealers contact a state agency. That state agency then contacts FBI NICS to run the background check. If the FBI NICS shutdown access to POC states it would basically make no sense whatsoever.

In Illinois if one wants to sell a gun to another Illinois citizen he must run a on line/call in FOID check and receive a verification number. If the gun is used in a crime and you ran the check, your covered. Sell without a check and your goose would very well be cooked. It’s the law and I follow it.

lilguy said:

In Illinois if one wants to sell a gun to another Illinois citizen he must run a on line/call in FOID check and receive a verification number. If the gun is used in a crime and you ran the check, your covered. Sell without a check and your goose would very well be cooked. It’s the law and I follow it.

Click to expand...

Wish we could do that in WA. In WA both parties have to attend on premises at an FFL who charges a fee to broker the transaction.

Virginia passed a law last year that requires the Virginia State Police to be on-site at every gun show, to offer background checks to private individuals selling guns to each other. The idea was to prevent background checks from becoming a monopoly for FFL's, who would charge hefty transfer fees. This plan fell into a problem immediately, as many gun shows were cancelled because of COVID.

Under the New York Safe Act, any sale of a firearm is supposed to go through an FFL, including sales from one private individual to another, but in those cases, the state has set a fee limit of $10.00 on those tranactions.

Bob

rkittine said:

Under the New York Safe Act, any sale of a firearm is supposed to go through an FFL, including sales from one private individual to another, but in those cases, the state has set a fee limit of $10.00 on those tranactions.

Bob

Click to expand...

I have seen some FFLs charging up to $ 30 for a transfer , I had no clue there was a law setting the limit . Thanks for that info .

AlexanderA said:

Virginia passed a law last year that requires the Virginia State Police to be on-site at every gun show, to offer background checks to private individuals selling guns to each other. The idea was to prevent background checks from becoming a monopoly for FFL's, who would charge hefty transfer fees. This plan fell into a problem immediately, as many gun shows were cancelled because of COVID.

Click to expand...

The VSP gun show check is not an FBI NICS check.

The Virginia Firearms Transaction Program (VFTP) background check is a search of state records followed by a search of the NICS federal records.

Virginia State Police will do a VFTP background check for $2 for a private transaction at what they call a Firearms Show (Gun Show).

https://www.vsp.virginia.gov/Firearms_VFTP.shtm
https://www.vsp.virginia.gov/Firearms_VFTP.shtm#PrivateSaleTransactions

Carl N. Brown said:

The Virginia Firearms Transaction Program (VFTP) background check is a search of state records followed by a search of the NICS federal records.

Virginia State Police will do a VFTP background check for $2 for a private transaction at what they call a Firearms Show (Gun Show).

https://www.vsp.virginia.gov/Firearms_VFTP.shtm
https://www.vsp.virginia.gov/Firearms_VFTP.shtm#PrivateSaleTransactions

Click to expand...

From your second link:

Private Sale Transactions

No person shall sell a firearm unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law. The dealer may charge and retain an additional fee not to exceed $15.00 for obtaining a criminal history record information check on behalf of a seller.

The State Police shall provide background checks for private transactions at Firearms Shows in Virginia for the sale or transfer of handguns or longs at the event. For a background check in a private transaction, both the buyer and seller must be a Virginia resident. The prospective purchaser must provide written consent permitting the State Police to perform the records check by completion of a Virginia Firearms Transaction Consent Form. It is unlawful for any person to willfully and intentionally make a false statement on the consent form. A fee of $2.00 will be collected in advance by the State Police for transmittal to the General Funds of the Commonwealth to assist in the cost of conducting the check.

The average time for a background check is less than five minutes for approved transactions. If a possible identification is made, a review of the information or record is immediately performed to determine probable identification and lawful eligibility of the prospective firearms purchaser. If the transaction cannot be approved within minutes, an estimation of the processing time will be provided to the prospective purchaser.

No person who sells or transfers a firearm at a firearms show after receiving a determination from the Department of State Police that the purchaser or transferee is not prohibited by state or federal law from possessing a firearm shall be liable for selling or transferring a firearm to such person.

Click to expand...

It doesn't sound like a Form 4473 is being completed or that an FFL is being used to conduct the transfer......so I'm pretty sure that VSP isn't abiding by the FBI NICS requirements for using their system. FBI NICS is restricted to FFL's, state POC's running a NICS check for an FFL and LE returning a seized firearm to its owner. Such users of the FBI NICS must have a completed and signed 4473 before beginning a NICS check.

Every FBI NICS check or POC NICS check generates a NICS Transaction Number (an NTN) that is recorded on the 4473.

I have a strong suspicion that these VSP "background checks" aren't run through the FBI NICS system.