This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights. For another look at the topics discussed here, check out this week in gun rights at FPC.
Journalists pushing for universal background checks
In an article recently published by American University Radio, Lisa Dunn discusses the efficacy of background checks. Like many “reputable” accounts, it starts with an incorrect interpretation of federal law, segueing casually into an analysis of universal background checks, finally concluding that “the results are mixed” when it comes to assessments of UBC’s effect on reducing violence. Of course Ms. Dunn couldn’t come to the correct ultimate conclusion — they don’t work.
The program is part of a series called “Guns & America”, which is funded by the Kendeda Fund, a group that supports gun control. Here’s a quick summary of why Dunn is wrong on basically everything:
First, Dunn claims that private gun transactions, in person or online, may provide a “loophole” for prohibited people to obtain firearms legally. There are a number of mistakes here. You can’t buy a gun from someone who lives in another state without conducting the transfer through a licensed dealer, which means the person acquiring the firearm undergoes, you guessed it, a federal background check. Not that this is how it should be, but alas, the GCA leaves us with that.
Second, even if you conduct a private sale, it’s both illegal for the prohibited person to take possession of the firearm, and it’s illegal to knowingly transfer a firearm to a prohibited person, so there’s no “legal” way for prohibited people to obtain firearms.
Here’s the statute, enshrined in Title 18, right next to a bunch of other unconstitutional garbage which comprises much of our nation’s multiple thousands of pages of gun control law. That same garbage people like Dunn seem to think make up an unregulated hellscape. A hellscape it is, but one of excessive regulation.
As Dunn concedes, firearms transfers to prohibited persons will continue to occur, mostly without the government’s knowledge unless the firearm in question is used for an illicit purpose, which is unlikely. By regulating the acquisition of firearms, as was the case with the National Firearms Act, the Gun Control Act of 1968, and the 1986 amendment to the Gun Control Act, all the government would be accomplishing is expanding the secondary market.
With the advent of 3D printing and other home-shop arms, the concept of the universal background check has been rendered essentially moot. With items that can be commonly obtained at brick and mortar or online stores, people around the world are now able to build their own firearms, so why bother assessing the value of UBCs? Because it makes Moms who Demand Action and other NIMBY folk feel better about voting for the other old, senile guy running for the big chair this November.
Colorado Supreme Court gets it wrong, upholds gun magazine capacity limit
One of the core purposes for the reconstruction amendments was to apply the Bill of Rights to the states. This was to prevent state abuse of individuals’ constitutional rights. As the United States Supreme Court explained in McDonald v. City of Chicago back in 2010, the Second Amendment restrictions the actions of states as well.
Despite acknowledging this fact, the Colorado Supreme Court issued an opinion last week in favor of the state’s ban on standard capacity magazines, stating that “because Plaintiffs do not challenge HB 1224 under the Second Amendment, we do not address whether the legislation runs afoul of the federal constitution.”
This meant the Colorado Supreme Court was free to engage in their own analysis of the state constitution’s 2A analogue. So, did they decide to cast aside the decade of nonsense “tests” imposed by federal circuits and give the rights of Coloradans their due? No.
Instead they used it as an opportunity to manufacture and apply a substantially softer framework for analyzing the state constitution’s version of the right to keep and bear arms, which says outright: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question.
The Colorado Supreme Court explained that the law banning the lawful possession of standard capacity magazines is permissible under the state constitution because it is a “reasonable exercise of police power,” which when placed immediately below the language of the state’s constitution, seems to be a plain error. Now I would never imply that politics have anything to do with a judge’s ability to interpret the law or to push an agenda in the court, but considering the court’s 6:1 ratio of Democrat to Republican appointees, I think it’s fair to say there may be some ideological bias against gun rights.
Facebook ambushes Boogaloo groups, banning over 500 groups and pages
While companies are busy opposing free speech virtue-signaling with a Facebook boycott, the social media platform has just labeled Big Igloo folks as a “dangerous organization,” conducting a “strategic network disruption” of what Vice refers to as “the boogaloo online infrastructure.” Hilarious.
What they probably meant to say was that Mark realized that he also would have to do a fair bit of virtue-signaling in order to stop the hemorrhaging of cash caused by businesses leading the boycott. Vice, who is apparently waging war against veterans and Hawaiian shirt-wearing casuals, got people canceled on Discord last week, an online chat service. Since when did Vice go from covering slavs shooting Krokodil to functioning as a bunch of digital brownshirts?
Nuts write to Subway to complain about their gun allergy
@SUBWAY my kids are asking for us to order subway and it sucks that this is yet another thing that can’t have right now because I can’t support a business that puts its employees and customers at risk of being killed over a sandwich. @MomsDemand #FootlongsNotFirearms pic.twitter.com/0PLpAgI39C
— Brooke Strishock (@BStrishock) May 11, 2020
They’re back. The people who refuse to “eat fresh” so long as freedom-loving people decide to embrace their right to bear arms as they stop by Subway sandwich shops to forage for footlongs. Over a month late to the party, Connecticut Senators Richard Blumenthal and Chris Murphy, peripatetic purveyors of gun control propaganda, are now joining the ridiculous push to force Subway to ban the possession of firearms in all of their nearly 45,000 locations.
What sparked this, you ask? A couple of gun-friendly folks open carrying their long guns in North Carolina back in May, one of whom was carrying a fake AT4 as a lark. In their letter to the sandwich people, the senators wrote “No person should have to fear gun violence while visiting or working in Subway restaurants.”
I agree, but just because people are open (or concealed) carrying firearms doesn’t mean it’s rational for other people to be afraid. Subway should absolutely disregard this tasteless grandstanding because, after all, Alyssa Milano, Dick Blumenthal, and Chris Murphy probably haven’t even been to one of their establishments in the first place.
Iowa expands the right to carry in public buildings
Good news, everyone! Iowa Governor Kim Reynolds has signed a law amending a provision which used to allow political subdivisions of the state to pass regulations barring individuals from carrying firearms in public buildings. Under the new version of the statute, localities may still regulate the carrying of firearms into sensitive spaces like courtrooms, but entry into common areas of public buildings is now permitted.
Not only is this change in law a win for Second Amendment advocates, but it is also a practical victory. By permitting people to carry in these spaces, Iowa is allowing them to provide for their own defense while also reducing the probability of firearms theft from vehicles while people are going about their business with the government.
New Hampshire passes red flag law
When General John Stark said “Live Free or Die,” he probably didn’t intend for it to be at the hands of hopped-up cops issuing a no-knock warrant to recover firearms. Unfortunately for the people of New Hampshire, and in an absolutely partisan showing of disregard for the good general and the fight against government tyranny, New Hampshire Democrats passed a red flag law in a 14-10, party-line vote.
The new bill allows family members and anyone cohabiting with the government’s target to file for an “ex-parte” order, which means the person being subjected to a firearms seizure isn’t given notice or opportunity to be heard in the court before they are stripped of their rights.
Passed under the guise of reducing the number of suicides in the state, the law sets a remarkably low standard for the government to meet when arguing before a judge, making it an excellent opportunity for aggrieved family members and housemates to subject gun owners to state-sponsored-swatting. This law is a horrible idea, will likely lead to real harm, and is most certainly unconstitutional.
Now I am not a lawyer and I’m not sure on this but from what I have read and what I understand on background checks in general is you can not legally compel a person to provide evidence against themselves as that would violate their 5th amendment rights.
As in the case of Haynes v. United States, where a Prohibited person could not be charged with an unregistered short barreled shotgun as he was not allowed to have a shotgun of any length at all and to require him to register it at all would require him to self incriminate, that same argument can be used as far as background checks go as far as I can tell.
I would love to have an individual who has actual experience/knowledge of the law chime in and either verify my thoughts or tell me I’m smoking dope.
I think we are mostly agree a person who is prohibited and trying to get a firearm to do bad things is just going to ignore the laws anyway so it may be a moot point.
Until a crime has been committed, how can there be a 5th Amendment self incrimination problem? If there’s been no crime because you haven’t purchased the gun yet, there’s nothing to incriminate yourself about.
You can not legally compel a person to provide evidence against himself. That’s true. In the case you referenced a person was compelled to self report that he was committing a crime, which is a 5th Amendment violation. But that doesn’t mean that he was off the hook. If he was committing a crime he would still be prosecuted.
There are other examples of the self-incrimination problem. Tax returns are by nature self-incriminating. In order to avoid the 5th Amendment problem, there are even ways to pay your taxes in full without incriminating yourself. It’s actually called a 5th Amendment tax return and allows a taxpayer to pay taxes on ill-gotten gains without incriminating himself. If only Al Capone knew!
Moreover, the 4473/background check involves purchases from a federal FFL (and in many states, any purchase at a gun show). But nobody is compelled to buy a firearm from a dealer. If you have a 4473 aversion, buy your gun elsewhere and you won’t have to incriminate yourself. Of course, the mere possession of the firearms will do that for you when you are found with it and arrested.
I’m a lawyer, but I’m not your lawyer and I am not giving you legal advice (we have to say that). So be careful out there among the English.
Thank you and I understand that you are merely giving your opinion on my question and not legal advice.
Spot on, brother counsel.
Registration is one thing, ownership or possession another thing altogether. If you are a prohibited person arrested while in possession of a firearm, registered or not, you can be jailed for the mere possession based on the arresting officer’s testimony. No need for compelled self-incrimination.
I completely agree a prohibited person can get convicted on mere possession of a firearm (and likely a bunch of other laws as well) but at least in my state the universal background check was billed as keeping firearms out of peoples hands that shouldn’t have them (I know that flavor of kool-aid and don’t like it). It was the same with our mandatory reporting of a lost or stolen firearm within 48 hours (like I’m going to wait that long to start my insurance claim).
The issue I’ve always had with any of these “new and improved” laws is they are going to be even less effective at keeping dangerous people from doing dangerous things because they were never really intended for them, just us lawful gun owners.
If you really want to make a difference, how about a background check for alleged “journalists”! And a five day wait for any trash they want to disseminate to be verified.
To quote everyones favorite jarhead…
“Surprise, surprise, surprise”…
The simple face is that without a universal background check it is IMPOSSIBLE to prosecute anyone who does a straw purchase for a prohibited person unless you can ‘prove’ they knowingly transferred the firearm to a prohibited person. The reason I put it in quotes is that the person has to actually confess or admit it. The majority of firearms that are used by criminals originated with a straw purchase. So Matt, if you want to argue that everyone who not currently incarcerated should have access to a gun, that is one thing, but it’s not something that most people will agree with. But the way it is now, anyone who is knowledgeable about the law is safe selling firearms the a prohibited person.
If anyone does not believe me, try talking about gun laws while doing a transfer with a new FFL. Why, because they know they are safe unless you say something stupid, so it is better to just flat out say nothing at all.
That opinion is what we in the reality business call a steaming pile of crap.
It is not at all impossible to prosecute straw purchasers; it happens frequently, and much of the time it’s plea-bargained away as a small piece of evidence leading to a bigger prosecution. It’s routine enough that we never hear of it unless it’s some dingus who sold an evil black rifle to some evil mass murdering crapsack.
What is true is that it’s difficult to *find* straw purchasers, because all they the recipients of their illegal largess have to do is keep their yaps shut and *not* be connected to an evil mass-murdering crapsack.
The fact is it is almost impossible to prosecute the FFLs who are supplying the guns knowingly. Or do you think selling 50 high points to a individual without a FFL is not evidence of gun running? Hell Midwest guns just outside of chicago bans anyone without a FOID from the store to keep them from being busted for straw purchases. It is a lot harder to prove “previous” knowledge without some gang banger directing his girlfriend at the counter. Like I said, never talk about firearm law with a FFL. They will tell you what to do and ask the appropriate questions and as long as you give the right answers you are good to go. Never mind you purchase a dozen 9mm pistols in the past year.
You are wrong……..the prohibited person already knows they can’t buy the gun…….we already have laws that allow us to arrest the prohibited person when they are caught buying the gun or in possession of the gun. That is all the law we need to take on criminals buying guns. We do not need universal background checks……they only want them so they can then demand gun registration. Universal Background Checks do nothing to stop criminals or mass shooters….criminals use straw buyers, who can pass any background check for any sale, or the criminal steals the gun. Mass shooters can pass any background check because their first crime is the shooting. So you don’t know what you are talking about. The only reason to push universal background checks since they don’t do anything to stop criminals or mass shooters, is to come back and demand gun registration…….that’s it. Also, universal background checks will be used to make it more difficult for normal people to buy guns…both in time, money and legal peril….which is actually another goal of the anti gunners……you don’t know the issue….
Morons.—Those whose mental development is above that of an imbecile, but does not exceed that of a normal child of about twelve years.
Imbeciles.—Those whose development is higher than that of an idiot, but whose intelligence does not exceed that of a normal child of about seven years.
Idiots.—Those so defective that the mental development never exceeds that of a normal child of about two years.
Journalists.- Those with no ascertainable mental development at all.
Have to disagree on the journalist definition. They know exactly what they are doing. Using the best vehicle at their disposal to indoctrinate as many skulls full of mush as possible into supporting their agenda. The media has always been the voice of movements regardless of who controlled them. Such as Der Sturmer controlled by the Nazi’s. Tass controlled by the Bolshevik’s and later the Communist Party and Xinhua News Agency and China News Service controlled by the Communist Party. Underestimating the power of the media and those who control them. Has cost millions of people not only their Freedom but, more importantly their lives. Keep Your Powder Dry.
“They know exactly what they are doing.”
Dogs know what they’re doing when they lick their own @ssh0les. That doesn’t mean they’re smart.
Be depressed and angery.
Cohabitator gets your guns removed.
Be sure to stab, beat, strangle cohabitator for being a putz before hanging self.
Red flag laws: turning “my body my choice” into “I’m taking all you fuckers with me” coming to a state near you.
Please consider getting the help you so desperately need.
If you are in a situation or relationship where you might have to fight a red flag order do three things.
1. Get away from that person . Beyond disarming you you’re livelihood and job are in danger. Getting swatted means bad publicity.
2. Hide or store most of your guns elsewhere. Here’s where it’s a good idea not to let the other person in your life know what all you have. Get the good stuff out of state and with someone you trust and can fight any attempt to take “your guns”.
3. Reinforce the doors and put in cameras, motion lights, and if you can a gate on the driveway. Make it hard to get in, give you time to make phone calls and put the dog in the basement.
The best solution is to move to a state without RFL since your nemesis could ask your new state to disarm you because they tell them you want to take over the world.
Don’t forget perimeter defenses. Including but not limited to lawn ornaments, bird feeders, bird houses and decorative plastic rocks. Also providing convenient cover points in and around said decorations. Stopping the threat before it gets into your house is half the battle won. If you choose to fight. Do so with Extreme Prejudice.
Further info on new Iowa firearms legislation. A new preemptive law is in effect that prevents counties, cities and municipalities from making rules which prevent the building and operation of firearms ranges. Including both indoor and outdoor ranges. We continue to work toward Constitutional Carry and other 2nd A issues.
Since the Boogaloo groups are Leftards boogymen Boogy,Boogy,Boogy,Boogty,no brains no pain, for Leftard’s with no clue and and totally brain dead,It’s a Effin Joke.
Everybody here tonight must boogie. You are no exception to the rule.
Hey baby wanna boogie, boogie woogie woogie with me,
Hey baby, wanna boogie, boogie woogie woogie with me,
A we can boogie over here, we can boogie over there
Come on babe we can boogie everywhere
Hey baby, wanna boogie, boogie woogie woogie with me,
Hey baby, wanna boogie, boogie woogie woogie with me,
Hey baby, wanna boogie, boogie woogie woogie with me,
A we can boogie in the house, we can boogie in the yard
Come on baby it ain’t very hard
Hey baby, wanna boogie, boogie woogie woogie with me,
Hey baby, wanna boogie, boogie woogie woogie with me,
Hey baby, wanna boogie, boogie woogie woogie with me,
A we can boogie in the living room, boogie in the den
Come on baby let’s do it all again,
Hey baby, wanna boogie, boogie woogie woogie with me,
Boogie woogie woogie with me
– John Hartford
I could hear the song as I read it! Been decades since Dr. Demento would spin it.
This is the anti-gun extremist bait and switch…..they use the concept of Universal Background Checks to lie to uninformed Americans. Americans not paying attention to the issue hear the words and think, “Sounds reasonable,” not understanding that the anti-gunners don’t care about background checks, they don’t care about criminals getting guns……if they did they would actually push to keep violent, repeat gun offenders in prison….they don’t. They want universal background checks in order to get gun registration. Once they get universal background checks, the criminals will still get guns, mass shooters will still pass background checks……so the anti-gunners will come back and say…..see…criminals are still getting guns, mass shooters are still passing background checks…so what we really need? Gun registration….because we don’t know who has the guns to make sure background checks are being done…….that is the lie, and the bait and switch……..
UBC won’t lead to registration, fed law says they can’t retain the info. I know I know they probably do keep all background check info,but if they start trying to use it this boogaloo bs they cry about will look like a 5 year olds bday party compared to what will happen. POTG will be outraged that the .gov outed themselves for lying to our faces for years, then using the info against us.
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