H.R. 8 and H.R. 1446
To understand why these bills are so consequential, it’s important to understand how retail firearm sales work under existing federal law.
Currently, the primary means by which the federal government regulates firearms is through a network of licensed dealers (FFLs) making commercial sales. Anyone who repetitively engages in firearm sales for livelihood and profit is required to become an FFL. Failure to do so is already a federal felony. So when the media mentions “unlicensed dealers,” they’re actually talking about criminals, not people falling into a legal “loophole.”
Anyone buying a gun from an FFL must first go through a computerized, point-of-sale background check administered by the FBI. This check, which is supposed to be instant, searches several national databases to determine if a would-be buyer falls into any statutorily defined category of “prohibited persons,” including such things as felons, people who have been committed to a mental institution, and illegal aliens.
If the search does not turn up a disqualifying record, the system notifies the dealer to proceed. Sometimes, however, the records are unclear, and a response cannot be provided immediately. This results in a delay of up to three business days to allow the FBI to conduct additional research.
If the FBI still has not resolved the check within that three business day period, the FFL has the option (but not a requirement) to proceed with the sale, provided he or she has no reason to believe the buyer is prohibited. This is known as a default transfer.
The system is structured this way not because of some inadvertent loophole but as an intentional safeguard to protect Americans’ constitutional right to obtain firearms.
It’s the Government’s Responsibility
As with any constitutional right, the burden is on the government to justify a restriction, which in the case of a background check means the FBI must be able to locate a disqualifying record before it blocks a sale. The three-day default transfer window ensures the government maintains the burden of proof, provides a specific timeframe to resolve incomplete checks, incentivizes the FBI to administer the system efficiently, and ensures legal transfers are not subject to extended delays.
Without the automatic default transfer option, the FBI could block even legal firearm sales simply by refusing to complete the check.
Private individuals who are not selling firearms with the principle objective of livelihood and profit can make occasional transfers, sales, loans, or gifts of firearms without becoming an FFL. However, they cannot transfer a firearm to anyone who they have reason to believe is legally prohibited from buying firearms. Private individuals also have the option (but not the requirement) to process a private transfer using an FFL’s services, with the attendant background check and record-keeping required of the dealer for a commercial sale. [Note: This is nationally. California requires all transfers to go through an FFL except for a few exceptions]
The bills passed by the House last week would – in the case of H.R. 8 – presumptively ban any private transfer of a firearm, including loans and gifts, as well as – in the case of H.R. 1446 – eliminate the automatic three day default transfer period for dealer sales.
This means that every time a firearm changed hands, the transfer would have to be processed by an FFL, which would involve fees, background checks, and government-accessible paperwork documenting the sale. Friends and neighbors could no longer freely loan, sell, or trade firearms amongst the people they know and trust. Even some family members could no longer share firearms with each other.
Handing a firearm over to someone without hiring an FFL to facilitate the exchange would be a federal crime under H.R. 8 unless you could show the situation fell into certain narrow and confusing exceptions. For example, you could loan someone a gun for self-defense, but only if the person was actually under attack at the time. You could not loan someone a firearm as a safeguard against a danger that had not yet materialized.
How Long Could They Take?
Making matters worse, H.R. 1446 would empower the FBI to indefinitely delay a firearm sale or transfer, simply by failing to complete the “instant” check that would now be mandatory for EVERY non-exempt transfer. There would be no automatic default transfer window. Instead, it would be up to the intended recipient of the gun to appeal a delayed background check and ask – for the second time – for an answer from the FBI.
If the FBI failed to answer this SECOND request for a resolution to the background check, the dealer would have to wait an additional 10 business days before deciding whether to transfer the gun. So, at a minimum, H.R. 1446 would allow the FBI to arbitrarily impose an extended delay, even in the case where a person stood on his or her rights by appealing the FBI’s non-answer to the check. If the person did not appeal, there would be NO option for the dealer to transfer the gun, even though the FBI had not shown the transfer was illegal.
Taken together, these bills transform the right to obtain firearms into a privilege administered at the say-so of the government. They also set the stage for a universal registry of gun owners and the transformation of the current “shall-issue” paradigm for FFL transfers to eligible buyers into a “may-issue” system where the FBI can block sales on a case-by-case basis as they see fit.
Arch anti-gun Senator Chuck Schumer has already promised that the legislation will get a vote in the Senate, where the margin for victory or defeat is razor-thin.
That is why every freedom-loving American must contact their senators NOW and firmly but respectfully demand that they vote NO on H.R. 8 and H.R. 1446.
Giving the government total authority to document and oversee every legal gun movement in America is a recipe for a crackdown on law-abiding gun owners while leaving criminals operating outside the bounds of the law untouched.
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