By JOHANNA REEVES, ESQ.
“Do something!”
“Do not stand idly by!”
“Thoughts and prayers are not enough!”
We’ve heard this refrain – from politicians and pundits, parents and student activists, in stump speeches, editorials, Facebook, Instagram and Twitter. It is impossible to get through the day without hearing the impassioned cry for the federal government to do something, anything, to make the gun violence go away. And all the while claiming the need for “common sense” gun control will not infringe the Second Amendment.
A little over a year ago I wrote about the impact mass violence has on gun control (Legally Armed, “The Impact of Mass Violence on Gun Control in the United States,” Small Arms Review, Vol. 22, No. 7, August/September 2018). In that article I reviewed some of the then-recently proposed federal legislation that was circulating through the U.S. Congress. In closing, I noted, “History shows the push for new legislation has momentum on its side. Considering the current atmosphere and the public outcry after the Parkland shootings, it is quite possible we will see one or more new laws this year to add yet another layer of gun control in the United States.” It has been a busy year.
ATF Bans Bump Stocks
At the end of 2018, the Trump administration, through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), finalized the bump stock ban (Legally Armed, “ATF Issues Final Rule on Bump Stocks,” Small Arms Review, Vol. 23 No. 7, August/September 2019). There are several lawsuits challenging this administrative action including Guedes v. ATF, which could come before the U.S. Supreme Court on the critical issue of whether courts must defer to a federal agency’s interpretation of a criminal statute. Legally Armed will keep readers up to date with this case as it progresses.
More Shootings, More Calls for Gun Control
The bump stock ban did not stop mass shootings. As of September 2019, there have been five incidents this year, the most recent occurring in Midland and Odessa, Texas on September 1, 2019. In the wake of the violence, the public and political outcry for something to be done about gun violence has grown exponentially. Consequently, it is no surprise that some political leaders in Washington, DC, have seized upon the momentum to urge passing of new legislation, including that which would enhance and expand background checks.
Universal Background Checks
The call for universal background checks (also incorrectly referred to as the “gun show loophole”) stems from the belief that criminals and miscreants are able to get their hands on firearms because of a “loophole that allows individuals to buy guns online or at gun shows without a background check.” (@Joe Biden, June 7, 2019). More and more Americans are subscribing to this argument, and even President Trump has stated he supports “tightening up” background checks. In August, he told reporters, “Well I’m looking to do background checks. I think background checks are important. I don’t want to put guns into the hands of mentally unstable people or people with rage or hate.”
But is there really a loophole in the federal law? The key to this question lies in the separation of federal and state powers outlined in our Constitution. Under the Gun Control Act of 1968 (GCA), it is unlawful for a non-licensee (e.g., a private individual or entity) to transport into or receive in the state where he or she resides any firearm purchased or otherwise obtained outside that state (18 U.S.C. 922(a)(3)). This prohibition does not apply to a firearm acquired lawfully by bequest or intestate succession, or to rifle or shotgun acquisitions made in person from a licensee in another state as long as the transaction is in conformity with 18 U.S.C. 922(b)(3). Note, the prohibition in 922(a)(3) requires the transaction to cross state lines, which triggers the federal government’s power to regulate interstate commerce under the Commerce Clause, Article I, section 8 clause 3 of the U.S. Constitution.
But what about private transactions between unlicensed individuals residing in the same state? According to House Speaker Nancy Pelosi and Senator Chuck Schumer, the Democratic leader in the U.S. Senate, there is a “gaping hole in the law that allows private gun sellers to evade existing background check requirements.” However, an intrastate transaction is squarely in powers reserved for the states to regulate. Further, federal law does not place any requirement on private individuals to conduct background checks when selling all or part of a personal collection. The GCA makes it unlawful for any person to engage in the business of importing, manufacturing or dealing firearms without a license. The GCA defines “engaged in the business” in 18 U.S.C. 921(a)(21) as applied to a dealer as follows:
[A] person who devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such terms shall not include a person who makes occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.
This is further clarified by the phrase “with the principal objective of livelihood and profit,” which is when:
[T]he intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection; provided that proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.
Consequently, if an unlicensed individual sells or transfers a firearm from his or her personal collection to another unlicensed individual who resides in the same state, federal law does not require the seller in this instance to conduct a background check. There is no evading if the unlicensed individual’s dealings do not rise to the level of dealing in firearms. If the individual seller is engaging in repetitive purchases and sales, his or her activity may rise to the level of “engaging in the business” that triggers the GCA licensing and transfer requirements.
The federal government has brought criminal cases against individuals or businesses for engaging in the business without a license. Courts have upheld the constitutionality of the federal regulation of dealers under the Commerce Clause because engaging in the business of dealing in firearms, including intrastate transactions, affects interstate commerce. The Commerce Clause, Article I, section 8 clause 3 of the U.S. Constitution grants Congress the exclusive power to regulate commerce among the states, with foreign countries and with Indian tribes. Powers not specifically delegated to Congress are reserved to the states (Halbrook, Stephen P., Firearms Law Deskbook, 585-586, 2017-2018 edition).
In the wake of the mass shootings in Odessa and Midland, Texas, the federal government is reportedly investigating whether the man suspected of selling the gun to the shooter was dealing without a license. If he was, he should have been licensed, and a background check would have been required. However, this may be difficult for the government to prove, and so the Democrats have made it a priority to get legislation passed that will eliminate the perceived loophole.
The Bipartisan Background Checks Act of 2019, H.R. 8, is one of the bills passed in the House that would expand the background check process mandated under the GCA to private intrastate firearm transfers by requiring all firearm transfers go through a licensee. Still, not every private transaction would be subject to the background check requirement. The exceptions include transfers to law enforcement, armed private security professionals or members of the armed forces, provided the individual is acting within the course and scope of employment and official duties; and loans and gifts between family members, such as spouses, domestic partners, parents and children, siblings, aunts/ uncles and nieces/nephews and grandparents and grandchildren. The bill passed the House in February in a 240 to 190 vote. Of the 240 votes in favor, 232 were Democrats, and eight were Republican (including Peter King from New York). For the Nays, 190 were Republican, and two were Democrats (including Jared Golden from Maine).
The House also passed the Enhanced Background Checks Act of 2019, H.R. 1112, which aims to strengthen the background check procedures a licensee must follow to transfer a firearm to a non-licensee. This bill passed 228 to 198 and would close the so-called “Charleston loophole,” by extending the time period for background checks to come back.
The chances of either of these bills in the Senate remain uncertain; although the pressure is mounting for the president to urge Republicans to support the Bipartisan Background Checks Act. Senate Majority Leader Mitch McConnell reiterated on September 3 that if the president took a position on the bill, he would put the bill on the Senate floor. So to press the matter, House Speaker Pelosi and Senator Schumer sent a letter to the president on September 8 urging him to seize upon “a historic opportunity to save lives simply by indicating your support for H.R. 8. … While closing this loophole will not stop every shooting, it will undoubtedly save many lives by helping to keep guns out of the hands of dangerous individuals.” At the time of this writing, the president has not responded to the Pelosi–Schumer plea.
“Common Sense” Gun Control
Democrats have long peddled the myth that all they want to do is control guns in a “common sense” way that saves lives and doesn’t infringe on the Second Amendment. For decades the primary target of this common-sense gun control is the AR-15-style, semi-automatic rifle, which Democrats and gun-control advocates commonly refer to as assault rifles or assault weapons, military rifles, weapons of war, as well as “heavy weaponry” (Bill O’Reilly) and according to Politico, the “deadliest varieties of firearms.”
At least 13 of the 2020 Democratic presidential candidates have stated their support for banning “assault weapons.” Joe Biden, the current frontrunner, said the following when asked in Cedar Rapids on September 3, 2019:
The idea that we don’t have elimination of assault-type weapons, magazines that can hold multiple bullets in them, it’s absolutely mindless. … It’s no violation of the Second Amendment. It’s just a bow [to] special interests of the gun manufacturers and the NRA.
But it is not just politicians. Recently, the giant retail chain Walmart announced “it would no longer sell short-barrel rifle ammunition—used in assault-style guns and some hunting rifles—as well as handgun ammunition in its stores.” In an email to employees, Chief Executive Doug McMillon wrote, “Our remaining assortment will be even more focused on the needs of hunting and sport-shooting enthusiasts.” Wall Street Journal, September 3, 2019.
The Washington Post also chimed in. A September 4, 2019, editorial titled, “Do Something, Mr. McConnell,” presents a list of victims of the nation’s mass shootings since Columbine and asks “[w]ould any volume of bloodshed convince the Kentucky Republican that Congress faces a moral imperative to act?” Of Course, no single law can end gun violence, but there are “reasonable, obvious measures that would help.” What are these reasonable, obvious measures?
“Ban the sale of military-grade assault weapons. Unneeded by civilians, they are a blight on the nation, their ready availability a national disgrace. Eliminating them would slow the growth of this list. It would save lives.”
But it was Beto O’Rourke who fantastically blew the lid off and revealed the Democrat Party’s true ultimate goal of gun confiscation. During the third presidential debate, aired on ABC on September 12, 2019, the moderator asked O’Rourke if he was proposing to take away people’s guns.
“Hell yes!” he declared. “We are going to take your AR-15, your AK-47! We’re not going to allow it to be used against your fellow Americans anymore!”
The audience erupted with thundering applause, cheers and whistles. Social media and news outlets blew up, and Second Amendment advocates who have long held the Democrats really want to confiscate legally-owned firearms were finally vindicated.
O’Rourke doubled down the next morning during an interview on MSNBC. When asked if his policy would mean federal agents will be knocking on doors and taking the guns physically from Americans, O’Rourke answered:
No. I think it’s expected Americans will follow the law. … [Some owners of AR-15 rifles] know that what we’re doing is not working. There are others who’ve volunteered, ‘you know what? I don’t need this AR-15 to hunt or to protect myself. I’d gladly give it back or to cut it into pieces.’ So, folks get this, and I think it’s the far outlier that is in any way going to be a challenge when it comes to this. I think most Americans are going to comply with the law.
And what about those who would not “voluntarily” surrender their semiautomatic rifles? Beto will “work with police chiefs and law enforcement” to “make sure this is implemented in the most effective way possible.”
O’Rourke and others believe such drastic measures are warranted because the AR-15- style semiautomatic rifle was “designed to kill people on a battlefield” and shoots a “high-impact, high-velocity round” that “when it hits your body shreds everything inside of your body because it was designed to do that so that you would bleed to death on a battlefield and not be able to get up and kill one of our soldiers.”
More to Come
We have not reached the end of this saga. It is doubtful we ever will. But during this phase, it would be foolish to summarily dismiss the calls for more gun control measures just because the rhetoric has reached extremes. The public is getting exhausted if not worn down, so we have the very real possibility the Democrats will succeed in getting more gun control measures in place and will continue chipping away at the rights established under our Constitution. Stay tuned.
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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
ABOUT THE AUTHOR
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.
| This article first appeared in Small Arms Review V23N10 (Dec 2019) |
