(courtesy curiouspaul.com)

Alabama-based estate planner Benjamin Jarrell writes:

Senator Feinstein’s assault-weapon and magazine bans have been stripped from the United States Senate’s upcoming gun-control proposal, which is good news in and of itself. Gun rights activists are generally pleased, and what remains is primarily a background check proposal. Gun control advocates herald this universal background checks as a common sense way to keep guns out of the hands of felons- but what the legislation actually accomplishes is extremely bad news for anyone who values their Second Amendment rights. Surprisingly, I haven’t seen any media coverage that fully analyzes the text of this proposed law. It’s not good . . .

The text of the bill can be found here: S. 374

The legislation will Amend 18 USC 44, and is subdivided into two parts. Title I-Ensuring That All Individuals Who Should Be Prohibited From Buying A Gun Are Listed In The National Instant Criminal Background Check System deals with strengthening the NICS background check system by requiring that certain data be added to the registry, and imposing penalties on States that don’t comply by withholding certain funding. The really objectionable portions of the law are found in Title II-Requiring a Background Check For Every Firearm Sale.

Title II – Requiring a Background Check For Every Firearm Sale 

Title II makes it unlawful to sell, gift, loan, return from pawn or consignment, or otherwise dispose of a firearm to any person without first passing it through a licensed firearms dealer, who will then proceed to run a background check (and probably collect a fee.) It remains unclear why a dealer who is in the business of selling firearms would agree to get involved in someone else’s sale. The bill requires the setting of a maximum fee that a licensed dealer may charge for this service, which means that if it isn’t worth the dealer’s time (not to mention their liability) to get involved in your private sale, you will be unable to privately sell your firearms. The bill makes certain exceptions, but the exceptions only serve to trap the unwary in a labyrinth of newly created federal crimes.

Family Exemptions – Good News, Or Is It?

The bill excepts bona fide gifts, transfers from the estate of a deceased person, and temporary transfers that take place on private property and last less than 7 days. Unwittingly violate one of these background check provisions, and you are looking at fines and up to one (1) year in Federal prison.

Bona fide gifts, but not other types of transfers, between spouses, parents and children, siblings, and grandparents and grandchildren are exempted from the background check requirement. Although the bill seems to carve out exemptions for intra-family transfers, it really only exempts gifts between a small number of familial relationships and makes every other intra-family transfer a criminal violation. If you want to sell your brother or your niece your hunting shotgun, you will have to run a background check on them first.

The bill also seems to make temporary transfers exempt, but the wording of the bill actually turns commonplace behavior into a criminal violation. In order to be exempt, the temporary transfer has to take place on your property and last less than seven days. Because the intra-family exemption only applies to bona fide gifts, if you went out of town on business or vacation for more than seven days and left a firearm in your home (even if locked up) with any other person, including your spouse, parent, child, grandparent, grandchild, aunt, uncle, niece, nephew, unmarried domestic partner, gay partner, live in boy friend or girlfriend, roommate, house-sitter, pet-sitter, or truly any other relationship you can imagine, you will have been deemed to have ‘transferred’ the firearm to that person and be in violation of the law. Leaving a firearm in a house with multiple residents could presumably result in multiple violations. This section is either incredibly poorly drafted, or was intentionally drafted so as to criminalize ordinary gun ownership. As a result of this provision, no person who owned a firearm and resided with another person could leave their home for more than seven days without violating this section of the law. 

But What About Hunting and Sports?

Good news sportsmen! You also get an exemption.

If you want to go shooting with your buddy and loan him your rifle, that transfer is exempt… so long as you go shooting at a range that has been incorporated for the express purpose of nature conservation or firearms proficiency. If you decide to go shooting on your own private, unincorporated property and loan them your weapon, you just broke the law.

What about shooting competitions? No problem… so long as the competition is organized or approved by either a state agency or nonprofit organization, you should both be exempt, but only for so long as you remain on the premises of the competition. If you caravan home with the rifle in your friend’s car, hope you don’t get pulled over.

Surely hunters get a pass, right? Hunters do get an exemption but only during the hunting season, and only if your friend has all of the right State paperwork. Violation of State hunting laws transforms this into a federal crime. Just hope he did not unwittingly let his hunting permit expire.

Lost Guns

The bill also makes it a crime to fail to report a lost or stolen gun within 24 hours to both your local authorities AND the Attorney General of the United State. So if you go on a hunting trip in the wilderness for a week, and your canoe capsizes on the third day, if you can’t make it back to civilization to get in touch with the police and Eric Holder, you just committed a Federal felony that will land you up to five (5) years in a Federal Penitentiary, plus fines. No word yet on whether Attorney General Holder works weekends, so let’s hope you didn’t lose your gun on a Friday evening.

So What Does All Of This Mean For Me?

If this legislation becomes law, it will mean that privately selling your guns will be a much more complex, and a much riskier activity. Even simply owning guns may render you a criminal, if you travel a lot and leave your firearms at home with another person. Going shooting with your friends also will become a much more complicated affair. Ultimately, this legislation will burden gun owners in exchange for very few, questionable benefits.

Gun Trusts As a Solution?

What can you do? A Gun Trust may be one possible solution. One option for owners of items regulated by the National Firearms Act like suppressors, fully automatic firearms, and short barreled rifles and shotguns has been to create a Firearms Trust or Gun Trust. These trusts provide some benefits in the application process for NFA items, but there are also significant benefits in how owners of NFA items are able to manage their weapons- trusts make it possible to loan regulated firearms to family and friends without running afoul of the NFA and committing an “accidental felony.” This background check legislation creates a number of new “accidental felonies” for all gun owners. If this proposal becomes law, gun owners may look to Gun Trusts to provide them with ease and security in how they manage their non-regulated weapons. A gun trust might allow you to name beneficiaries of your trust who are entitled to use the trust assets (the firearms) without running afoul of these transfer rules. Of course, it is hard to predict exactly what options will be available until something becomes law.

If this legislation concerns you, please contact your Senators and Congressmen and tell them what you think about this proposal. And as always, I would be happy to talk to you about protecting your firearms (and the rest of your estate) through trust-based estate planning.

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52 Responses to The Truth About the Universal Background Check Bill (Senate Bill S. 374)

  1. The response from the control freaks will be, “Trust us. We would never go after a good citizen…” Our answer to that? You guys are cash only, keep your hands (and proposals) where we can see them.

    • The point of rule of law is to minimize the reliance on trust. Otherwise, it’s just benevolent monarchy or oligarchy.

      • I don’t know why everyone is soooooooo edgy. President Barack Obama, peace be upon him, said he wasn’t going to take our guns. Why, I recently saw a picture of him shooting one of Vice President Biden’s, may his intelligence soon return, shotguns. I understand that President Barack Obama, peace be upon him, is an avid skeet shooter, who practices several times a decade. So everybody just chill. (B/S off)

  2. So this has been amended only slightly in committee. I seem to recall when this bill was first reported on this page, the restrictions on lending were a touch stricter. The 7 day rule and on your own property rule are both still in there, and still impossibly stupid.

    My biggest issue is the fact that the attorney general can set the price of a background check at whatever he desires, thus making it feasible to price many gun owners out of the market.

    I will be interested to see the final text of this. I have a feeling even this version is a few weeks old.

    • My biggest issue is the fact that the attorney general can set the price of a background check at whatever he desires, thus making it feasible to price many gun owners out of the market.

      Yes, but that’s not the agenda. The agenda is to track every transfer as a prelude to confiscation. To further that agenda, the NICS fee will be set low so we don’t squawk too much — until they come for the guns.

      • Are FFL’s required to do the background check? Could be that they set it so low that FFL’s wont’ do it. If it takes me 20 minutes to walk someone through the paperwork call it in, and can only charge them $2.50… Better to just say no and sell my own guns to people. Or require them to sell you the gun then sell it to the other guy. Something along the lines of “I will buy it from you for $500, and sell it to this guy for $650 and throw the background check in for free…”

      • “Yes, but that’s not the agenda”

        I beg to differ. It may not be the primary agenda, but they are using a full spectrum assault. Pricing shooters out of the sport (thru taxes, registration fees, background checks, non-lead ammo, cost to track ammo, etc.) serves to reduce the number of shooters. Part of their strategy is divide and conquer.

      • hhmmm i wonder if we can heat our homes next winter by stockpiling copies of these ridiculous laws all summer? lets see some you tube vids of mountains of copies

  3. I disagree with all of it, enforce current gun laws and protect schools in the same fashion we do our money and celebs and for those bullshit “polls” we see on MSNBC about what NRA members want conducted on five responses to comments on the MSNBC website, I am an active NRA member and I am against all of this nonsense.

  4. Question-Doesn’t the portion in the family exception portion which reads-‘The bill excepts bona fide gifts, transfers from the estate of a deceased person, and temporary transfers that take place on private property and last less than 7 days’ contradict-Title II which- makes it unlawful to sell, gift, loan, return from pawn or consignment, or otherwise dispose of a firearm to any person without first passing it through a licensed firearms dealer. I ask only because the allowed temporary transfer would be essentially a loan.

    • It doesn’t contradict it, it is an exemption/exception. That’s the way laws are written, largely so we can’t actually understand them until they are explained by the armed thugs arriving to confiscate… oops, sorry.

  5. The date on this version of the bill is March 14. I would venture to guess changes have been made that will be presented on Tuesday. Otherwise we will get to watch the epic fillibuster.

    • the epic fillibuster is coming unless manchin pulls a rabbit out of his hat and gets record less checks and none of this no loaning crap..

      the rules in this bill regarding loans at a private range are worse than NFA rules, where any non prohibited person can handle and shoot the item as long as one of the persons listed on the NFA paperwork is present.

  6. This is the Schumer version that Reid put into play when Schumer couldn’t get any repubs to play along. It is pretty much the same as current California law except for the bizarre loaning restrictions and the lost or stolen firearms provision.

    Nice analysis, Benjamin.

  7. “If you want to go shooting with your buddy and loan him your rifle, that transfer is exempt… so long as you go shooting at a range that has been incorporated for the express purpose of nature conservation or firearms proficiency. If you decide to go shooting on your own private, unincorporated property and loan them your weapon, you just broke the law.”

    Did you see that? Agenda 21 just raised its warty head above the murky waters. Hope you got a picture! If not, the above quote will suffice.

    • It’s even worse than that. If you are off your property with your spouse and you should become disabled, it would be a felony for your spouse to use your gun for defense. Nice set up for biometric gun locks, huh?

      • I think biometric gun locks provide an interesting possibility. What we need to do, here, is have a real test of their capabilities. How about a 10-year test with every law enforcement agency in the country from a beat cop to the head of the Secret Service and the Presidential detail required to carry such weapons EXCLUSIVELY during that period, to show the rest of us peons how safe and effective they are. Since they don’t exist, effectively, that means all LEOs including the Secret Service go “gun free zone” for 10 years. Then we can sit back and relax while government tears itself apart. For more fun, include the military, but that would bankrupt the country and get thousands killed before everybody quit.

  8. I have no trust in them so I will fight every reasonable proposal they come up with. The end game for them is confiscation. They may feel like they are reasonable, I feel like my pocket is being picked with a king crab leg, Randy

  9. Ah, I see that my initial understanding of Universal Backround Checks was a little off. This bill is an insidious bastard, and the antis would love to inconvenience us with it. They’ll be laughing with delight if legitimate gun owners are put in prison from the family vacation.

  10. This is not the bill being considered. You should be looking at S. 649. While S. 649 contains this same language, it also has other aspects such a addressing straw purchases, firearms trafficking and school safety.

    • Thanks for pointing that out. I actually wrote this piece a week and a half ago and it looks like they consolidated these bills since then. Quickly skimming it, it looks like the background check language is the same, with the addition of the extra titles.

  11. One interesting angle to this bit of poop regarding “transfer” & the 7 day magic # is how does anyone know who’s item “it” is? IF registration isn’t a part of this & the NICS doesn’t record the details of each & every transaction, how does the enforcing officers know that bit of information? Sure, I have the records of items that my wife & I have purchased, as does the store where we purchased said item. But supposedly, the ATF doesn’t have direct access to this info. There’s something else we aren’t being told…

    FYI: I live in a free state which doesn’t require firearm registration.

    • AND, it is a felony for an ATF agent to know what guns you own, or even if you own guns, outside of NFA items. Does that cause you to believe any of that carp? Because if the capability exists, it WILL be used (applies to every damn thing under the sun.). Like, who is going to prosecute? Eric Holder?

  12. And all this does is drive up the costs and make gun ownership only for the rich, the poor man (middle-class) who only has 1 or 2 guns is in trouble will cost lives to be lost if we make it real hard for the poor man(woman) and more tax (regulations ) means more jobs lost too. And the best part do nothing to stop crime… WHY not laws that put the bad guys in jail for gun crimes like robbery and rape, while using a gun … Right now it’s a joke some bad guys have records a mile long and and still out on the streets … OUR SYSTEM has become a JOKE…NO MORE GUN CONTROLS …

  13. if you guys ask questions about bills and mock loopholes/poor writing before votes, their staffers will have time to correct it. For example, California legislators have infiltrated calguns. When people discuss bills before the legislative vote, they’re inadvertantly helping to gun grabbers write better anti-gun bills.

    • What difference does that make, when a law written so poorly that it is gibberish is still enforced because someone claims they “know what the legislators meant”?

  14. I went on a regional radio talk show last week to discuss this issue, and the point I tried to make is that if they wanted to make background checks more ubiquitous they could have drafted legislation that accomplished that. For instance, they could have required that the NICS check be freely accessible to the public through a website. There are steps they could have taken to close what they perceive to be loopholes.

    This legislation does not do that. It criminalizes a host of ordinary behavior and doesn’t do anything to make it easy to comply with the new law. All it does is make it harder to transfer (not just sell) firearms. It seems designed to be an obstacle to legitimate, commonplace transfers. It burdens ownership of firearms by making possession more complicated and increasing liability.

    My concern is that lawmakers view background checks as a responsible compromise position between a full-on assault weapons ban and doing nothing. After all, who could be against background checks before selling a gun? It is up to us to let lawmakers know that this bill is nothing of the sort; it is extreme and unacceptable.

  15. I thought the original NICS proposal was supposed to be accessible by anyone and thus useable for private sales but concerns about abuse got it limited to FFL use only ?

    • That was the excuse for prohibiting use by non-FFLs. The real reason was that non-FFLs would never retain the records, so owners couldn’t be traced for the roundup.

  16. You know, there is one big gaping hole you missed complete: how S. 374 will affect active duty military members. I just did a quick search of the bill’s text, but I didn’t find any provisions protecting active duty military. Maybe I missed it, maybe it already exist in 18 USC 44, and I’d really appreciate it if anyone can help me find this provision, but other wise, it looks to potentially make every active duty military member who owns a fire arm and leaves it at home, a potential felon.

      • Never thought about you guys, sorry, I feel selfish. I apologize for my selfish behavior. Man, what about international pilots? What about people who work on cruise liners, or cargo ships? What about any one and everyone who works internationally and maybe gone more than 7 days? This is huge! This is so much bigger than I realized! Thank you for opening my eyes, HAVE GUN.

  17. The dumb never ends and every gun owner should assume a lifetime of fighting for their rights. It will never stop. Once the emotions are gone, once the current round is over, we need organize and prepare for the next ban.

    • First off, each of us needs to define a place they will not go beyond. Because the whole goal is to slowly rob us of our rights, a tiny “reasonable restriction” at a time, until that right is gone. I’m an old guy, made that decision long ago, about the time we got NICS in the first place, with all its safeguards (which have been destroyed by more and faster computers). I will not register my guns. When someone comes to my door to confiscate my (non-NFA) firearms, someone will die. I’ve been carrying concealed essentiall whenever and wherever I felt the need (and I’ve worn a $30K watch since 1987, feel the need often!), since 1973, what’s that, 41 years? Legally in certain states for 15 of that, but downtown NYC and Washington, DC as well. “Concealed” means you can’t see it, what is your probable cause and where is your warrant? And I have a bundle set aside for legal fees, though I’ll need help if I need to go to the SC. If I don’t get help-Hell, I’m old, pay for my health care costs during the last 5 years of my life. And KMA!

  18. And how exactly are they regulating IntraState commerce transactions by requiring background checks? Maybe I missed the part in the Constitution that permits the Feds from sticking their nose into private, non-Interstate transactions…then again, this administration doesn’t care about the Constitution.

  19. “It remains unclear why a dealer who is in the business of selling firearms would agree to get involved in someone else’s sale.”

    and yet this is how gunbroker works.

    “The bill requires the setting of a maximum fee that a licensed dealer may charge for this service, which means that if it isn’t worth the dealer’s time (not to mention their liability) to get involved in your private sale, you will be unable to privately sell your firearms.”

    just like getting my car inspected. soooooo hard to find a shop who will do that.

    “If you decide to go shooting on your own private, unincorporated property and loan them your weapon, you just broke the law.”

    pretty sure that this, which you mentioned earlier, covers it:

    “temporary transfers that take place on private property and last less than 7 days.”
    are you even proofreading? you’re making gun nuts look like idiots.

  20. A question. . . if you were required to have your car inspected at a Federally-licensed and approved shop, would it be so easy then? If the Federal government mandated the maximum price for this service, would the shop be eager to help out if the price was less than its break-even rate? If no maximum is set, how much are you willing to pay? How about the fee being the same as for the standard $200 BATF tax stamp; That sounds reasonable, doesn’t it?

    If your loan to your friend on private property extended into the 7th day, would the Federal government say “Oh, go on. . . never mind, it’s just one day!” just like New York State will overlook that 8th round in a seven-round-mandate magazine? I applaud your rosy outlook; Federal laws are universally ‘bright-line’ and allow no margin for error.

    We do not have faulty proof-reading, here. We have pragmatic self-preservation.

  21. IMHO, these proposed regulations have nothing to do with safety, and the law-writers know it. Instead, the whole idea behind these is to make gun ownership so cumbersome, so painful, so expensive, and so much trouble, that many gun owners will just throw up their hands and say to heck with the whole thing. In other words: use politics and nonsensical do-nothing rules to harass gun owners into giving up. It’s pretty safe that millions of gun owners will be able to get away with ignoring MOST of these silly new laws MOST of the times. And the exceptions, the edge cases, that are actually caught…the prosecutions of these will likely bring in the NRA lawyers, where these laws can be called into question.

  22. The ATF already encourages FFL holders to facilitate sales between private citizens, and has been doing so for a while. While you point out some strong concerns with the bill, some Ricky tack things that they could use to turn a state crime into a federal crime, the requirement of private sales through FFL holders seems a good idea to me. It frees up a great deal of liability on the individual should the ATF do a trace on a weapon you sold. It also makes straw man purchases an even more serious crime.

    • You think that’s a “serious” crime? How many people have been convicted in the past 20 years? My guess is under 100. At a cost of billions.

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