Gun Control & RKBA
Related: About this forumWisconsin Mass Shooter Exploited Background Check Loophole That NRA Says Isn't A Problem
Today the Associated Press reported that Radcliffe Haughton purchased a handgun without a background check from a private seller, and obtained the weapon two days after becoming subject to a restraining order that required him to turn any firearms he owned into police.
http://mediamatters.org/blog/2012/10/23/wisconsin-mass-shooter-exploited-background-che/190872
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hack89
(39,171 posts)considering how it is not a federal issue.
sarisataka
(18,603 posts)<snip>
Edwards' focus on where guns are sold is a distraction from the real issue: the lax regulation of private gun sales creates a venue for prohibited persons, like Haughton, to obtain firearms.
But then the article spends about 80% of its time talking about gun shows. Isn't it always referred to as the "Gun Show Loophole"?
But if a pro-rights person points out that private sales are prohibited from doing background checks, regardless of where the sale is made, it is an NRA Talking Point.
Many here have repeatedly voiced their opinion in favor of removing this prohibition so private sellers may conduct background checks...
Glaug-Eldare
(1,089 posts)It's not federal business, so it shouldn't be a federal law, but I think private sellers should be required to have a background check performed on buyers. They should have two options for this: 1) Have an FFL perform the NICS check for them, at their own price, or 2) have any law enforcement agency in the state perform the NICS check for them, with a small, legally-capped fee. No additional registration requirement should be imposed on sales facilitated by police, and sales records must be subject to the same privacy as those held by FFLs. This way, all buyers are checked, sellers aren't required to pay through the nose for an FFL's help, and no private seller is unreasonably far from a provider of NICS checks. NICS remains a private system with controlled-access, and the ability to conduct private sales in a convenient, timely way is protected. Just meet at the police station parking lot, in and out, everybody wins. Naturally, we should get rid of dumbass waiting periods. 
gejohnston
(17,502 posts)don't FFLs have to log the gun in as inventory then log it back out via 4473 in the process? If so, I would like to see the GCA amended to make it less of a hassle for brokering private sales. There should also incentives for compliance.
ManiacJoe
(10,136 posts)there is no gun to be logged from the FFL perspective. The NICS check contains no gun data except for the type (rifle, shotgun, handgun); that is needed only because the age of the buyer is keyed to the gun type.
gejohnston
(17,502 posts)perhaps an FFL can clarify
57_TomCat
(543 posts)does a background check the approval number must be logged on the 4473 that is filled out for ALL gun purchases through said FFL. Different states might have different requirements. The key is how to document the background check approval number or allow for the FFL to simply confirm the background passed.
Even then you run into the "Cash is KING" crowd who disregard the law.
PavePusher
(15,374 posts)except for the fees you propose. If it benefits everyone, as claimed by the anti's, then everyone can help pay for it through tax dollars.
Glaug-Eldare
(1,089 posts)I don't see anything unfair about requiring an individual paying a fee to comply with the law. Maryland has a legislatively-defined fee of $10 for transfers. Ten bux seems fair to me.
PavePusher
(15,374 posts)Your examples are not. That is the critical difference.
discntnt_irny_srcsm
(18,479 posts)...is the ONLY solution possible.
Background checks: All states have the option to participate in the NICS as a point of contact. Most states that do this run a check of state and county records in addition to the federal check. Conflicts with privacy laws are the number one reason why most states don't report some mental issues to the federal database. I like the idea of having NICS checks available through a LEO at county offices.
I like the availability to an NICS check by law enforcement for private sales. Some folks will only be comfortable this way. I stop a bit short of making it mandatory. I don't like the idea of demanding documentation of seller as these things have a way of becoming registration.
Atypical Liberal
(5,412 posts)The problem with his solution, requiring NICS checks for all private and commercial sales, is that the only people likely to request a NICS check are people likely to be purchasing, and thus owning, a firearm.
Consequently, this creates a registry of all firearm owners.
A better solution is to issue run NICS checks on everyone who applies for a driver's license or state-issued ID, except those who opt out, and issue Firearm Owner IDs to everyone who passes.
Then, the FOID has to be recorded for all firearm sales, private and public.
This has a few advantages over the NICS at point of sale solution:
1) It preserves firearm ownership anonymity.
2) It provides a traceable chain of custody for firearms.
3) It allows easy transfers of firearms between individuals anywhere, without having to meet at a place capable of doing NICS checks.
4) Since everyone with an FOID has already had a background check, they can buy firearms through the mail without having to ship through an FFL dealer, with the associated fees.
Glaug-Eldare
(1,089 posts)but it has some serious weaknesses.
1. The FBI has finite resources. Running a NICS check on every single driver's license issuance (and FOID renewal) would put an unreasonable burden on a system that wasn't designed for it.
2. Private purchasers have no way of determining whether any given FOID is valid or not. By omitting the check at purchase, they may sell to a person known by NICS (or even the state) to be disqualified, but whose FOID was not confiscated.
Changing it to an opt-in system would drastically reduce the NICS burden, and perhaps allow for an expanded NICS to withstand schemes similar to Utah's(?), where I'm told they perform frequent checks on all carry permits, and immediately revoke those of recently-disqualified people.
Atypical Liberal
(5,412 posts)True, but the NICS check should be automated and should happen in seconds. If your SS# is not in the database, you're clear.
2. Private purchasers have no way of determining whether any given FOID is valid or not. By omitting the check at purchase, they may sell to a person known by NICS (or even the state) to be disqualified, but whose FOID was not confiscated.
True, but FOIDs will expire like drivers' licenses. So they would not be able to buy firearms forever with an old FOID.
Changing it to an opt-in system would drastically reduce the NICS burden, and perhaps allow for an expanded NICS to withstand schemes similar to Utah's(?), where I'm told they perform frequent checks on all carry permits, and immediately revoke those of recently-disqualified people.
Opt-in is a registry of firearm owners, and I won't comply with that.
discntnt_irny_srcsm
(18,479 posts)Running NICS checks does not create a registry. FOIDs need to be renewed and leave an open window of time where a crime can be committed by someone with a valid FOID. Plus if you record the FOID for all sales, you again have a registry.
Atypical Liberal
(5,412 posts)In theory, NICS data is supposed to be deleted after a certain amount of time. I do not believe that it is for an instant. This is a government that routinely and actively monitors all electronic communications of everyone, everywhere. This is not paranoia or a conspiracy theory, this is a known fact. My father-in-law worked for Nortel for 30 years. Their equipment is specifically engineered, by design request of customers and governments, to have back-end hooks to enable complete surveillance. There are locked rooms in the trunk offices of all the major telecom industries for NSA equipment. If you think the government is getting rid of that electronic data (not to mention the difficultly of truly deleting electronic data in the first place), I think you are mistaken.
FOIDs need to be renewed and leave an open window of time where a crime can be committed by someone with a valid FOID.
This is true. The good news is FOIDs do expire just like driver's licenses do. It's not like a lack of FOID is really going to stop criminals from obtaining firearms anyway - all of this is just a feel-good measure to appease anti-gun folks.
Plus if you record the FOID for all sales, you again have a registry.
Yes, but not a very easy-to-access one, because the records would be dispersed among millions of individuals in a non-electronic format. The only way you could follow the records would be with good old fashioned police work going to the FFL log book, to the customer of record, demanding the sale records for the next customer of record, and so on. Very time consuming and expensive. Not something that will be done routinely except in the event of a crime that warrants it.
discntnt_irny_srcsm
(18,479 posts)NICS data: My understanding is that it is never recorded to start with. Yes I do realize how naive one would have to be to really believe that. I've been involved with DARPA and had friends that worked for DIA. I know about the facilities in Sugar Grove, on Kent Island, at Menwith Hill and in New Zealand. I'm familiar with the NRO. Some international traffic both voice and data is carried by satellite and the satellites have monitoring provisions. Ever heard of the National Geospatial-Intelligence Agency?
FOIDs: I just dislike the idea of having someone "check my papers" before I get to exercise a right.
FFL logs: How long will it be before they are computerized?
Patrick Henry: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined... The great object is that every man be armed. Everyone who is able might have a gun."
Atypical Liberal
(5,412 posts)I agree. But as I propose it, it's harmless to us, and gets us the right to buy firearms through mail order again.
FFL logs: How long will it be before they are computerized?
I'm surprised they aren't already.
gejohnston
(17,502 posts)because it was intentionally written into federal law. It is also inaccurate to say "private sellers are not required to" because private sellers are prohibited by federal law. In fact when you call the NICS call center, assuming you come up with the phone number, the operator will ask for your FFL number. Some states do require private sales be brokered by an FFL or the cops. Most don't.
BTW, the MM editors should have changed "required him to turn any firearms he owned into police" to "required him surrender any firearms he owned to police."
ManiacJoe
(10,136 posts)
jenw2
(374 posts)You must have a headache from those mental midget gymnastics.
Seriously, there is a HUGE loophole that is providing thousands of dangerous weapons to men that shouldn't have them. Really, you support that?
Eleanors38
(18,318 posts)The Feds can do this because of the Interstate Commerce clause. However, any individual who sells within his/her state to someone else in his/her state, is not subject to the NICS system for B.G. checks, nor could they use such if they WANTED to. The states may or may not regulate these sales; otherwise, the Feds do not have the power under the Constitution to perform such.
Those who have posted in this group for the last several years have kicked around the notion of a "universal" check system, and whether or not it would have any effect on a social problem. But the crux of the matter is that the Feds are constrained from taking action.
I would point out that ANY time a prohibitionist scheme is established, there are people willing and quite able to circumvent it. Be aware that most states will resist an effort in this direction if for no other reason than the track record of gun "controllers:" They want prohibition of almost all arms, tight regulation on what the remaining ones can be used for, and a blank check for more prohibition in the future.
If you have a suggestion as to how to deal with the problem, please employ your mental colossus parallel bar and present it.
gejohnston
(17,502 posts)not newspeak and buzz words. How I feel about the cause or which side is using them doesn't matter. Principle should always transcend ideology, even if it is inconvenient.
loophole [ˈluːpˌhəʊl]
n
1. an ambiguity, omission, etc., as in a law, by which one can avoid a penalty or responsibility
2. (Military / Fortifications) a small gap or hole in a wall, esp one in a fortified wall
http://www.thefreedictionary.com/loophole
There is no ambiguity in the Brady Law that created the situation. If you call the NICS center with without an FFL number, the FBI employee will hang up on you, because the law says you may not use the system. That is why it is not a loophole. Since we are talking about intrastate private sale of legal products, I don't think the commerce clause would allow federal regulation. As I said, I am not opposed to the states requiring it and I support amendments to the Gun Control Act to make it simple for FFLs to provide the service.
IIRC, in The Netherlands, Dutch police are not allowed access to mental health records when processing gun license applications. If someone with schizophrenia gets a license, is that a loophole?
PavePusher
(15,374 posts)
AtheistCrusader
(33,982 posts)Just curious.
pipoman
(16,038 posts)in the US constitution. By definition it isn't a "loophole" at all, it is a legitimate limitation on the power of the Federal government.
Eleanors38
(18,318 posts)gejohnston
(17,502 posts)the editor has with his or her blue pencil.
Eleanors38
(18,318 posts)Db Owen97
(40 posts)You seem to always find fault with everything and everyone except the criminal act of ....well a criminal.
Why try to make the issue your own and by doing so disrespect the victim.
It isn't the fault of any gun owner or organization.
The only guilt and all blame should go to the criminal alone,because said person is the only one to make the choice to commit such actions.
Clames
(2,038 posts)...the OP is known for doing little else that dumping what he/she finds on Google here. Does nothing to facilitate discussion, does not defend positions taken in the articles, and is an overall disruptive element in this group.
Eleanors38
(18,318 posts)
ileus
(15,396 posts)
Glaug-Eldare
(1,089 posts)Private transfers are legal in Maryland, after a fashion. Handgun transfers require compliance with a scheme broadly similar to the one I laid out in #5, and face-to-face rifle transfers are completely legal.
ileus
(15,396 posts)slackmaster
(60,567 posts)...the background of a potential buyer.
The law prohibits use of the ONLY source of truth - NICS - by anyone except licensed dealers, i.e. Type 01 Federal Firearms Licensees.
NICS should be made available for use by non-licensees, and by licensed collectors like me.
Atypical Liberal
(5,412 posts)I support universal, anonymous firearm licensing.
Under my proposed system, everyone who applies for a state-issued ID or a driver's license will automatically be run through a NICS background check, unless they opt out. Of course, people without either of those can still apply for an FOID.
Everyone who passes the NICS check is issued an FOID. Because the system is opt-out, rather than opt-in, there is no way to know which people with FOIDs actually own firearms or not. Consequently, there is no registry of firearm owners. Anonymous firearm ownership is preserved.
Then, as in Illinois today, every time a private individual sells a firearm to another private individual they must record the buyer's FOID information and keep those records for some number of years. If the firearm is recovered from a crime scene, it can be traced, with manual police legwork, from the original FFL dealer through each legitimate owner until the last legitimate owner is discovered, provided it is within the time limit of records keeping for individuals.
Thus there is an incentive for private sellers to comply with the law and keep a record of their private sale, and a disincentive to sell to someone without an FOID, as it is likely then that such arms would be used in crime and thus traced back to them, where punishments can be issued.
In Illinois, it is currently a misdemeanor to not record the private sale of a firearm. I would suggest that if the firearm is consequently used in the commission of a crime then the penalties for selling without recording a valid FOID be very steep.
In this manner, everyone who lawfully buys a firearm will have undergone a background check.
The advantages to this system are numerous:
1) All lawful buyers of firearms will have undergone a background check.
2) People who commit disqualifying crimes can have their FOIDs revoked and firearms in possession confiscated.
3) Anonymous firearm ownership is preserved.
4) Since anyone with an FOID has already had a background check, they can buy firearms through the mail without need of going through an FFL.
5) It allows the sale of firearms at any location, simply by observing and recording the buyer's FOID.
DanTex
(20,709 posts)This couldn't have happened! Maybe NRA will argue that the victims of the shooting aren't really dead.
gejohnston
(17,502 posts)DanTex
(20,709 posts)This is another case of NRA-versus-the-rest-of-the-world.
gejohnston
(17,502 posts)or you don't understand the law. The law prohibits non FFLs from doing background checks. What is ambiguous about the law?
DanTex
(20,709 posts)The intent is to prevent certain people (e.g. criminals) from purchasing weapons, but by omitting private sales from the background check requirement, it allows those people to evade the intent and acquire weapons anyway. It is one of the most perfect textbook examples of a loophole that one can imagine.
http://www.merriam-webster.com/dictionary/loophole
gejohnston
(17,502 posts)DanTex
(20,709 posts)Ahh, the good ol' gungeon. A fascinating place. I mean, where else can I find people who don't know what the word "or" means?
gejohnston
(17,502 posts)So why did they omit it? It implies unintentional omission.
Glaug-Eldare
(1,089 posts)The DOT DOES regulate interstate trucking, because the Constitution DOES empower the federal government to do this. Individual states do NOT have this authority Truck drivers who transport freight across state lines ARE required to take and pass a DOT physical, and MAY OR MAY NOT be required to take and pass a state physical.
The DOT does NOT regulate intrastate trucking, because the Constitution does NOT empower the federal government to do this. Individual states DO have this authority. Truck drivers who transport freight within a state's borders are NOT required to take and pass a DOT physical, and MAY OR MAY NOT be required to take and pass a state physical.
The ATF DOES regulate interstate firearms sales, because the Constitution DOES empower the federal government to do this. Individual states do NOT have this authority Firearms sellers who trade in firearms across state lines ARE required to perform NICS checks for retail sales, and MAY OR MAY NOT be required to fulfill additional state regulations.
The ATF does NOT regulate intrastate firearms sales, because the Constitution does NOT empower the federal government to do this. Individual states DO have this authority. Firearms sellers who trade in firearms within a state's borders are NOT required to perform NICS checks for retail sales, and MAY OR MAY NOT be required to fulfill additional state regulations.
Some states impose additional regulations on the sales of firearms between citizens of that state, and some do not. The absence of a state requirement to perform background checks is NOT a loophole in federal law. It is a choice made by the state where the firearm is sold.
gejohnston
(17,502 posts)the FFL holder engages in interstate trade via wholesalers etc. He may not sell to an individual who is not a resident of that same state.
Glaug-Eldare
(1,089 posts)DanTex
(20,709 posts)Meanwhile, outside the NRA bubble, it is a loophole, and there aren't any people besides full-on right-wing gun fanatics who think that there is any constitutional problem with closing the loophole. First off, gun trafficking obviously affects interstate commerce. Beyond that, private transfers of full-auto weapons are currently regulated by federal law, so there is already precedent.
The problem is not constitutional. It is political. The NRA and pro-gun extremists would rather have people die instead of imposing common sense gun laws. And the Republican party does what the NRA wants.
fightthegoodfightnow
(7,042 posts)
gejohnston
(17,502 posts)because of the tax stamp. That is why before 2004 the ATF was under the Treasury dept. Before ATF was created in the 1970s, federal gun laws were enforced by the IRS. ATF was called the Misc. Tax Unit in the IRS, responsible for collecting federal sales taxes and regulating those three items.
Unless you are saying that there should be a transference tax on title one weapons. It has nothing to do with the commerce clause.
friendly_iconoclast
(15,333 posts)You also forgot to gratuitously name-drop a recent shooting incident, so there's that...
Oh well, everyone has an off day now and then.
hack89
(39,171 posts)where does the Federal government get the power to regulate intrastate commerce?
I have no problem with background checks for private sales - my state is one of five that does exactly that. But it is a state issue that requires each state to pass legislation.
fightthegoodfightnow
(7,042 posts)This alternative universe where fact is turned on it's head sounds creepily like the sound bite of another political party.
gejohnston
(17,502 posts)but I don't believe I heard any Republican mentioning it, or were you talking about the Greens or Constitutional Party?
hack89
(39,171 posts)* the channels of interstate commerce,
* the instrumentalities of interstate commerce, or persons or things in interstate commerce,[10] and
* activities that substantially affect or substantially relate to interstate commerce[11]
Me selling my private property to another citizen of my state while in my state doesn't fit anywhere into those criteria.
Something to think about. Proposed Federal law deals only with private sales at gun shows - because that could possibly fit under the above criteria. What is telling is that there is no proposed Federal legislation to ban private sales outside of gun shows.
fightthegoodfightnow
(7,042 posts)...and was specific to the facts of that case.
hack89
(39,171 posts)but not intrastate gun sales in general.
There has to be a link, however tenuous, to interstate commerce. Me selling my private property within my state to another state resident cannot be linked to interstate commerce.
Why else do you think proposed federal legislation only attempts to regulate private sales at gun shows? It looks like all those Democrats in Congress understand the constitutional issue.
fightthegoodfightnow
(7,042 posts)I can literally see the heads rotate 360 for some in gungeon land.
oneshooter
(8,614 posts)fightthegoodfightnow
(7,042 posts)See the LOOP HOLE refers to the GUN LOOP HOLE. I was in no way referring to your loopy, creepy love affair with your .45.
