On 'Loop-holes' and Personal Responsibility

[Six &Twenty]

Before proceeding with this piece, I first want to make one thing perfectly clear:
 

By definition, criminals do NOT obey laws. Thus, any new regulations being pushed to ‘stop gun violence’ will ultimately be proven ineffective. The net result is that the ‘failure’ of these proposals to impact the problem only intensifies agitation for even more draconian measures.
 

That being clearly stated and understood by my audience, I do have a ‘suggestion’. To address ‘private sales’ – the notorious ‘gun-show loophole’.

https://www.facebook.com/notes/dave-mcfate/on-loop-holes-and-personal-responsibility/10156379864847138/

Edited May 4, 2018 by Six &Twenty
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[DaveTN]

Good article. 

I don’t know how many folks I have seen over the years on various gun forums state that they don’t ask for ID because they aren’t required to. As a former cop I can tell you that’s true in most states. However, it’s a crime for you to sell to an underage person or an out of state resident in a private sale. You can be arrested for that in a private sale.

I hate the term “Gun show loophole” because usually those that are using it don’t want to acknowledge that they are talking about either requiring background checks on private sales, or outlawing private sales and making them all go through an FFL.

[Oh Shoot]

1 hour ago, DaveTN said:

....However, it’s a crime for you to sell to an underage person or an out of state resident in a private sale.

Federally, the burden of proof is that you "know or have reasonable cause to believe" the sale is such.

- OS

[Six &Twenty]

58 minutes ago, Oh Shoot said:

Federally, the burden of proof is that you "know or have reasonable cause to believe" the sale is such.

- OS

In this political climate, is this 'position' wise?  As a person not particularly interested in making a political point, I'd drop a dime on my local dealer and all the potential legal 'problems' miraculously disappear.  It is exceptionally expensive to field a legal defense, even if you are vindicated. 

Please do not misunderstand my intent with this piece. I am simply suggesting that, at this time, in this nation, covering your ass may be prudent!  And, your local FFL dealer could use the 40 bucks, that your 'customer' will pay.  Seems a win - win for all concerned.

Edited May 5, 2018 by Six &Twenty
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[chances R]

Nope, just another win for the gun-control crowd that pushes another encumbrance upon the average law-abiding citizen along with the other draconian procedures. We have enough problems without eating our own.

[DaveTN]

11 hours ago, Oh Shoot said:

Federally, the burden of proof is that you "know or have reasonable cause to believe" the sale is such.

- OS

I disagree. That may be true of the person having a criminal record, because you have no way to check that. But age and state of residence is very easily verified and it’s reasonable to require that.

However like anything else it would depend on how and why the age/residence became an issue.

Hiring an attorney and going to court is never a win.

[DaveTN]

11 hours ago, Six &Twenty said:

And, your local FFL dealer could use the 40 bucks, that your 'customer' will pay.  Seems a win - win for all concerned.

It’s not a win. I don’t need an FFL transfer to cover my ass on a firearm sale; I’m fully capable of doing that without adding any cost.

I’m absolutely sure background checks are not going to keep killers from getting guns. Most of the mass killers we have seen so far either passed a background check to get their guns, or they would have.

I’m also pretty sure background checks will become a Federal requirement on private gun sales unless they are ruled unconstitutional. However, this is 2018; there is no reason to require going to and paying an FFL for what amounts to a criminal background check. I expect it to be done online and I expect it to be done for free. It’s already just a feel good move that will do nothing; it doesn’t need to be a money grab also. My local FFL needs to make his money by selling product; not getting a free handout from the government.

[Omega]

While I agree it should be online and free, if it comes to pass, it won't be either of those things.  It's always about the money, and making it as difficult as possible for law abiding citizens to exercise their 2nd Ammendment rights.

I personally don't do a bill of sale unless the other party wants one, if I sell a firearm, I'll state what the requirements are, it's up to the buyer to meet them.  Of course if I sense something squirrelly I'll act accordingly, but I've only sold one, the rest have been trades so no issues so far.

[bersaguy]

With what seems these days all the Crazies shooting up people like ducks at a shooting gallery unless there is a signed bill of sale, and proof of identification with photo ID such as Drivers license, HCP,  proving who they are, anyone outside of TGO members with more than 100 posts will not be buying a firearm from me.  I will be CMA.............JMHO

[Oh Shoot]

18 hours ago, Oh Shoot said:

Federally, the burden of proof is that you "know or have reasonable cause to believe" the sale is such.

- OS

 

6 hours ago, DaveTN said:

I disagree. That may be true of the person having a criminal record, because you have no way to check that. But age and state of residence is very easily verified and it’s reasonable to require that.

Simply quoting you the federal statute Dave. The "know or have reasonable cause to believe" condition is there for each type of illegal personal sale.

That's why stings are always pretty specific: "um, I don't live in this state but....", or "um, I'm not 18 yet, but...", or "um, I can't buy a gun from a dealer, but..."

- OS

[DaveTN]

1 hour ago, Oh Shoot said:

 

Simply quoting you the federal statute Dave. The "know or have reasonable cause to believe" condition is there for each type of illegal personal sale.

That's why stings are always pretty specific: "um, I don't live in this state but....", or "um, I'm not 18 yet, but...", or "um, I can't buy a gun from a dealer, but..."

- OS

So your interpretation of the Federal law on age and residence is that if you don’t ask and they don’t offer you won’t be charged because no crime has been committed?

[QuackerSmacker]

In ILLannoy, as many of you know, we have the much-hated FOID sytem.  "Firearm Owners Identification Card."  It's $10 and good for 10 years.  You need one to buy guns or ammo.  There is no registration or licensing of any specific firearms, or ammo.  A FOID card does not function as evidence that you actually own any guns or ammo.  It's just a card that indicates you've passed a background check and are legal to own same.  The database is updated daily.

So for a private sale in this fine state, you, either by phone or online, get into the state police system, put in the FOID# and birthdate of the buyer, and you either get an ok to transfer, or a not ok, good for 30 days.   You are absolved from responsibility if the person that the system said was a good guy turns out to be a bad guy.  There is no record of any specific gun, serial #, etc.  There is zero information about any gun filed anywhere. 

When you run the check on the buyer, there is not even anything that would lead to a conclusion that a sale of anything is occuring.  If a sale does happen, there is, as in every state, a requirement that the seller personally retains the buyer's name, address, and firearm specifics for 10 years.  

Oh, and it is actually free.   Imagine that in this Gotcha state! 

I'm not advocating this system, just saying what it is.  You at least get some comfort level, and legal protection, that your buyer is not a bad guy.  

Obviously the big fear about the FOID system is that it starts down the slippery slope toward gun registration.  Nothing like that has happened in a couple of decades, even in this sorry state.  

The libtards seem much more interested in banning so-called "assault weapons" and "high capacity magazines" in this state, for now.  I'll be outta here be the time that happens.  

Bottom line, the FOID system solves the so-called "Gun Show Loophole."

Would I recommend it for other states to adopt?   No way.  I don't think many states could resist the temptation to sneak the system into a gun registry or licensing scheme, if things keep sliding the way they seem to be sliding in so many places today.

So why did I write this?  Just wanted to point out that background checks for private citizens can be free, and can reduce or eliminate the seller's liability.  If the legislators in Tennessee start to get goofy, it could be an option.  I have every confidence that legislators everywhere can come up with way worse systems.

NO, I am NOT advocating that my soon-to-be-state of Tennessee should adopt a FOID card system!!!!! I just thought this group should understand it as one alternative in case the powers-that-be start getting stupid down there. 

I hope that was useful!  I do really enjoy this group.

 

 

 

 

 

 

 

 

 

[Omega]

FOID...unless you have identified yourself, how would that absolve you?  If you identify yourself,  then it has just made a defacto registration of a transfer, and it must save it otherwise how would they check?  Nope, not a fan of anything like that. 

[QuackerSmacker]

You do not identify yourself when you run someone's FOID.  You could do it at the public library.   Obviously it would be smart to keep a personal record of having done it.  Maybe take a photo of the screen, saying basically "He's OK"  or a printout.  Actually there is a printout form that the seller can print and would keep for his own records for 10 years, but none of the seller's info is on it.  It has to be filled in manually. [ EDIT... as with ink on paper.  ]  The system doesn't know.   I don't see how it would be hard to prove that you ran someone through the system.  And I've never heard of the issue actually coming up.

Edited May 5, 2018 by QuackerSmacker

[QuackerSmacker]

BTW, this is about the ONLY thing that this state does in a not-totally-messed-up way!   When I background a guy, the system doesn't know who I am, or whether we're talking about 1 gun or 100, or anything else.  It's just "Is this guy ok"   Y or N

I do understand that this could be hard to believe!   I've done it many times, too many to say on any forum. 

 

[Omega]

14 minutes ago, QuackerSmacker said:

You do not identify yourself when you run someone's FOID.  You could do it at the public library.   Obviously it would be smart to keep a personal record of having done it.  Maybe take a photo of the screen, saying basically "He's OK"  or a printout.  Actually there is a printout form that the seller can print and would keep for his own records for 10 years, but none of the seller's info is on it.  It has to be filled in manually. [ EDIT... as with ink on paper.  ]  The system doesn't know.   I don't see how it would be hard to prove that you ran someone through the system.  And I've never heard of the issue actually coming up.

So the onus is on the seller to maintain records on himself?..pass.

[QuackerSmacker]

Omega, maybe this will help you.  Here is how it's done:  https://www.ispfsb.com/public/firearms/foid/persontopersonfirearmtransfer.aspx

That is the only thing that happens.  

Damn, I'm not a cheerleader for ILLannoy firearm laws, but if this is the direction in which we're headed, you guys should at least be aware of this option before whackos in your state capital, or in Washington, give you a REALLY messed up system.

[Omega]

2 minutes ago, QuackerSmacker said:

Omega, maybe this will help you.  Here is how it's done:  https://www.ispfsb.com/public/firearms/foid/persontopersonfirearmtransfer.aspx

That is the only thing that happens.  

Damn, I'm not a cheerleader for ILLannoy firearm laws, but if this is the direction in which we're headed, you guys should at least be aware of this option before whackos in your state capital, or in Washington, give you a REALLY messed up system.

Oh, I understand the process, but again..pass.  If this comes to us, you really think we will get a choice?

[QuackerSmacker]

2 minutes ago, Omega said:

So the onus is on the seller to maintain records on himself?..pass.

Yes, that's always been the case in many states, maybe yours.  And certainly on all FFLs.   I haven't looked at TN requirement.  What's the big deal?  A piece of paper in your gun safe, toss in 10, or whatever your state requires.  Or don't keep it.  Not really much practical risk either way.

[QuackerSmacker]

2 minutes ago, Omega said:

Oh, I understand the process, but again..pass.  If this comes to us, you really think we will get a choice?

That's a great question.  If it comes down from Washington, no choice, and they will mess it up beyond comprehension, and it will be a whacked out, overly complicated national registration scheme.  I have no doubt of that.

That's why we need to be ready at the state level, and we need to know what we're talking about.  It's only if we can build support for a better "scheme" that we have a chance.  That's why I'm telling you guys about this.  Your legislators MAY need educating and we HAVE to stop the feds from just running amuk.

 

[Chucktshoes]

3 hours ago, QuackerSmacker said:

Yes, that's always been the case in many states, maybe yours.  And certainly on all FFLs.   I haven't looked at TN requirement.  What's the big deal?  A piece of paper in your gun safe, toss in 10, or whatever your state requires.  Or don't keep it.  Not really much practical risk either way.

The 10 year requirement is strictly an IL requirement. Only a very small a handful of other states (<5) require private parties to keep any records whatsoever. The vast majority of states have very little additional requirement beyond federal law regarding the transfer of private property between non-FFL/individual parties. TN has only two additional requirements, don’t give guns to drunks or crazy people. 

 

§ 39-17-1303, 1316: May not transfer firearms to anyone who is intoxicated or otherwise prohibited from possessing them under state or federal law.

Tenn. Code Ann. § 33-1-101 and § 33-3-904(a)(4): Anyone who transfers a firearm to someone receiving services for a mental illness, serious emotional disturbance, or developmental disability may be charged with a felony.

[QuackerSmacker]

Ok, no argument from me on this!   I totally believe in a few Constitutional words that go like:  SHALL NOT BE INFRINGED.  

[DaveTN]

The Illinois FOID system is not a bad system as far as useless background check systems go. But it should be pointed out that it is required for more than just firearms or ammo purchase. It is required for mere possession also. Having a single round on you or having a loose round in your vehicle can be cause for arrest; even in your own home. An otherwise law abiding citizen can quickly become a criminal with a “Weapons” conviction if they don’t get a FOID card and make themselves aware of all firearms laws prior to handling or possessing any guns or ammo.

[10-Ring]

I've bought a lot more guns than I've sold.  I've been in a couple of sketchy situations buying, but I've never been in one selling.  I sold one on here and that went smooth as could be.  I've have met several TGO folks though, and there isn't a single one that I have met that I wouldn't invite into my home without thinking twice.  TGO is as safe a bet as you can make when it comes to safe selling.

Edited May 6, 2018 by 10-Ring

[QuackerSmacker]

I've had the same experience with the Illinois Carry group.  Never a problem, and a lot of transactions.   Way less scary than Armslist strangers.   That's why I joined this group.  I look forward to adding to or subtracting from my collection with you guys.