I’ve finally gotten around to reading H.R.8 – Bipartisan Background Checks Act of 2019 that passed the House recently. I have a question. How many years should my friend Mike get in the Federal lockup?
The law is pretty basic.
“(t)(1)(A) It shall be unlawful for any person who is not a licensed importer, licensed manufacturer, or licensed dealer to transfer a firearm to any other person who is not so licensed, unless a licensed importer, licensed manufacturer, or licensed dealer has first taken possession of the firearm for the purpose of complying with subsection (s).
This basically says “unless you have a Federal Firearms License, you can’t give, loan, or sell your firearm to another person. If you don’t have an FFL, you have to transfer it through an FFL.
Like I said, pretty basic stuff. The interesting parts are the exceptions. What gifts, loans, or sales can happen without going to an FFL?
“(2) Paragraph (1) shall not apply to—
“(A) a law enforcement agency or any law enforcement officer, armed private security professional, or member of the armed forces, to the extent the officer, professional, or member is acting within the course and scope of employment and official duties;
Cops and the military… if they are doing cop and military stuff.
“(B) a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, including step-parents and their step-children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren, if the transferor has no reason to believe that the transferee will use or intends to use the firearm in a crime or is prohibited from possessing firearms under State or Federal law;
Loans or gifts between specifically listed persons related by blood or marriage. I see that cousins are excluded. Also roommates. Also persons living together without benefit of marriage or some legal domestic partnership.
Note the use of “No reason to believe.” Not “does not reasonably believe” or some other construction to admit ordinary doubt. NO REASON. That means that later, the prosecutor will be at trial saying things like “You sure you didn’t have ANY reason? Any reason at all? Not even the smallest doubt?”
“(C) a transfer to an executor, administrator, trustee, or personal representative of an estate or a trust that occurs by operation of law upon the death of another person;
So I guess inheritance doesn’t require an FFL to wet his beak. That’s nice, I guess.
“(D) a temporary transfer that is necessary to prevent imminent death or great bodily harm, including harm to self, family, household members, or others, if the possession by the transferee lasts only as long as immediately necessary to prevent the imminent death or great bodily harm, including the harm of domestic violence, dating partner violence, sexual assault, stalking, and domestic abuse;
Oh, how nice! If someone is actually in the process of trying to murder your friend, you are permitted to hand him your gun so he can defend himself.
Here’s the problem. “Imminent” has a very specific legal meaning. It means “RIGHT NOW.” It doesn’t mean some future speculative harm. So when your girlfriend says “My ex threatened to murder me because I left him,” this doesn’t cover you if you say “here’s my AR, take it home with you and if he comes in, blast him.” Because that’s not “imminent.”
“(E) a transfer that is approved by the Attorney General under section 5812 of the Internal Revenue Code of 1986; or
Oh, how nice! If I pay my $200 tax stamp to the IRS, I don’t need a background check to hand my SBR to someone else on the trust.
“(F) a temporary transfer if the transferor has no reason to believe that the transferee will use or intends to use the firearm in a crime or is prohibited from possessing firearms under State or Federal law, and the transfer takes place and the transferee’s possession of the firearm is exclusively—
“(i) at a shooting range or in a shooting gallery or other area designated for the purpose of target shooting;
So if I am on an actually designated shooting range, I can let my buddy shoot my P320, but if we’re out on his back 40 shooting tin cans and cardboard boxes, FELONY!
“(ii) while reasonably necessary for the purposes of hunting, trapping, or fishing, if the transferor—
“(I) has no reason to believe that the transferee intends to use the firearm in a place where it is illegal; and
“(II) has reason to believe that the transferee will comply with all licensing and permit requirements for such hunting, trapping, or fishing; or
What does “reasonably necessary?” Clearly the classic “crossing a fence while carrying rifles” qualifies. But can I go down to my friend Andy’s house and borrow his turkey gun so I can try to whack a turkey during the season? Is that “necessary?” Is it “reasonably necessary?” Or am I required to take Andy to the FFL and pay $50 to transfer it because we have time, so it’s not “reasonably necessary” for him to just hand it over? Inquiring minds want to know.
“(iii) while in the presence of the transferor
Oh, that’s nice. So long as I am standing right there, we’re golden. But if I wander off to use the toilet (for some reason my lady friends are less than sanguine about standing right next to me while I pee on a tree) are we both felons? There’s a choice. Creepy? Or FELON?!
So let me spin you a true story. I swear on a stack of bibles that this actually happened. It’s not something I dreamed up to illustrate a point, it’s what I’ve actually done.
Mike is a friend of The Wife’s* and mine. We’ve known Mike for more than 25 years. Mike is an Army vet and someone we’ve known through the historical re-enactment group we all participated in. In this group we fought with swords and armor in mass battles. In order to prove you were safe, you had to take a practical combat test where you fought a test bout against another known skilled fighter. In 1993 when I took that test, the person I fought against was Mike.
That’s the kind of history I have with Mike.
One day a few years ago, The Wife, who is not a gun person, said to me, “If I wanted to learn to shoot that little rifle you built to go to Appleseed, and Mike was willing to teach me, would you loan it to him so we could shoot on his farm?”
Mike owns a .410 shotgun for farm work, and he’s pretty much the definition of “guy you would want at your side if you needed any help at all,” so I’m totally OK with loaning him a gun. Hell, he was even a foster parent until he just adopted the kid. If you’re going to let someone teach your wife to shoot, you could do a lot worse than Mike. You could PAY for a lot worse than Mike.
I grabbed my Ruger 10/22, a few boxes of .22LR, hopped in my pickup truck, and roared off to Mike’s house about 45 minutes away. I handed him the rifle, the ammo, and drove straight home. The Wife said “I guess that’s a ‘Yes’ then?”
Over the course of the next two or three months, whenever The Wife went up to help out on Mike’s farm, they’d take a few minutes during lunch to shoot some paper plates or cardboard boxes out on (literally) his “back 40.” Then sometime 3-6 months after I took it up, The Wife comes home and says “here’s your rifle back” and hands me the cased 10/22.
The question I have is, how many years in Federal Prison should the three of us have gotten for letting Mike teach The Wife how to shoot my Ruger 10/22?
Under this law I committed a Federal felony by handing Mike my rifle. Mike committed a Federal Felony by handing the rifle back to The Wife. Perhaps The Wife was free and clear, because it’s not really a felony for her to give the rifle to me, but then again, she received it from Mike, so maybe that’s a felony.
In any case, all three of us would be bankrupted by the resulting legal fight. All because out here in Real America, it’s totally normal to have a guy like Mike teach your wife to shoot a Ruger 10/22 out on his farm.
*The Wife is always referred to as “The Wife” online as she does not wish her photo or her name to be bandied about among all you lovely strangers. When the old GunBlog VarietyCast Radio crew went to Atlanta, one of the house guests made drinking glasses with the logo and names on them. Mine said “Dysis’s Human,” and hers said “The Wife.”