The question is what do we want as a community:
A) Most of us do not want prohibited persons to obtain firearms
B) Most appear not to want private transfers (sale or not) among friends and families to go through government scrutiny
C) There is grudging support for background checks using NICS to make sure that FFL's do not sell to prohibited persons
D) There are complaints about the federal background check performance as incomplete, not prosecuting prohibited folks seeking firearms, incorrect, etc. As this is a federal law, the performance of your state background checks, if any, is beyond the scope here. Enforcement of the laws here can go after criminals who violated the laws in plain sight.
E) We are aware that background checks can easily be circumvented by those with criminal intentions by either seeking out a legal straw buyer and then doing an illegal purchase from the straw buyer or buying/trading/stealing firearms from others. Thus, any additional background checks will have a marginal, if any impact on criminal firearm use.
F) We are aware that politically and emotionally, general society favors the idea of background checks and because of the reality that NICS already exists, the general public thinks it "works". The reality is that it does work sometimes, at least preventing some from easily obtaining firearms that might be used for evil purposes. There is definitely no political support for eliminating the NICS background check period.
One can rant and rave about the shall not infringe language of the 2A and it will not change reality or minds one bit. That ship has sailed and woulda, shoulda, coulda, about the NICS system is pointless. It is here now, it is going to be in existence for the near future, and refusing to consider any improvement of the NICS system only hurts the political and practical interests of firearm owners.
The question is where do we go from here. Will this proposal as adopted marginally help the firearm community's political position? Will it actually reduce some criminal use of firearms? Could it make it easier to buy firearms in remote areas where not enough business exists to have an FFL? As usual, we are reacting to a white paper with a few points using broad language and have no idea of the final product and its implementation. We have to pass it then to know what is in it, more or less.
The model of legislation by legislative committee has mostly died but in reality it was a good system. Everyone got to provide input, concerns and stupidity in the legislation could be cleared up, and the intent was to provide the best law that could be fashioned that worked. However, the reality today is that laws are more or less written for the congress critters by interest groups. So then, how would one replicate the committee process? Perhaps, a national commission might provide some way to replicate it with representatives selected from the various communities.
The Democrats with a few go-along Republicans and their compatriots in the media have hammered the general public for years about the "gun show" loophole that allows criminal to buy guns, despite the reality, that gun show FFL dealers have to generate 4473's etc. The occasional sellers without ffl with tables are rarely the source of guns that are used for nefarious intent. An old Mauser rifle or lever action using .32-20 ammo is not what the gangbangers are looking for. However, we have to admit as a community that the propaganda of the gun show loophole has been effective.
Similarly, we see idiotic fake news that one can simply go into a shop and take it off the shelf and buy it and the same fake news report about that it is harder to vote than buy a firearm. Likewise, reports are out there that the internet allows people to buy and sell firearms and avoid back ground checks. A lot of folks seem to believe that gunstores are like the one in Commando with a secret room where you can buy LAWS rocket launchers, shaped charges, full machine guns, basically everything needed to fight a small war.
Every now and then, some blogger or reporter actually undertakes the task publicly trying to obtain a firearm and writing about the process. They do find that is is not that easy and some have indignantly found that they were a prohibited person. These stories are buried more or less in the media or in the internet. But, the general public has no idea, nor has the gun community/media/government effectively educated the public about the amount of hoops that a firearm owner has to go through to buy a firearm as well as the costs.
Voter registration is nothing compared to the hassles of buying a firearm and the penalties for voter fraud are far less serious than firearm law infringement. Because the feds do not enforce these laws except as add-ons to other crimes, the public gets the idea that anyone can just plunk down money and walk out with a firearm.
The public has never been educated that buying over the internet from somewhere like gunbroker either requires that the weapon be antique or must go through at least one FFL which requires a background check or some other state allowed process such as CCL possession.
The Armslist, Craigslist (if they do it), trading forums such as here, and so on, have the same legal restriction that no firearm can be shipped interstate without an FFL being involved and thus the actual sales arranged on these either go through FFL's or are face to face transfers. Some states already require even more than the federal law and as a result, many sellers refuse to sell legally to certain states. This type of sale can in certain circumstances avoid background checks depending on the seller's intentions. Many sellers require a CCL and all should require a driver's license and they issue a bill of sale with copies kept by both parties.
We must admit though that driver's licenses and even a CCL could quite possibly be falsely duplicated and the bill of sale is mainly to protect the seller if the buyer is prohibited or the firearm is diverted to someone who does something bad with it. From my understanding, this is where the facilitator would provide a way to have a background check for such stranger to stranger transfers, perhaps allow wider internet based purchasing of firearms by providing a floating transfer/background check service, and provide firm legal protections to the seller and a way to prevent a prohibited person via the facilitator background check from directly getting a firearm through private sales. The records that would be created also would be difficult to compile the data into a national registry. From where I sit, the major losers under this proposal would be those that more or less trade frequently and get better selling prices for their firearms via private sales with no paper background of the sale. There is that little tax issue on income as well that would be harder to avoid in such a system.
As far as violating 2A rights, I do not think that you could get a reputable court in the country to agree that this sort of regulation violates the 2A given that the courts have already given their blessings to the NFA, the GCA of 1968, FOPA, the AWB, and so on. Ditto for legislatures and executive branches who have to enforce the laws. The concept that people have the right to engage in secret commerce without regulation is not something that any of the judicial or other branches are going to contemplate as it would undermine taxing powers as well as police powers for the health, safety, and welfare of citizens.
Thus, we are stuck with background checks for the foreseeable future and with our virtue so compromised, we have little political support in the public or branches for engaging in private sales to strangers without regulation any more than a moonshiner can engage in unpapered commerce with drinkers of their moonshine. Thus, the public has supported in even firearm friendly states, draconian background checks legislation even between temporary exchanges between friends and family which does create the problematic paper trail, increase costs, and more or less create a situation where countless blameless individuals violate the law every day (see state of Washington for example).
As a separate issue, the federal and state government can and should enforce existing laws and go after straw buyers/illegal gun dealers which do provide a large amount of firearms to prohibited persons. This is a real problem and putting those folks out of business via fines and/or incarceration or trying them as accessories to the crimes committed can affect nearly half of the illegal guns provided to criminals.
We understand then that the alleged gun show and internet sales loophole really is to get all private sales on the books in order to take the next step in generating firearm registries which a) do not work as pictured in TV and movies to solve crimes (see Canada's useless long gun registry for an example) and b) provide a list for confiscating firearms from law abiding citizens whenever that government (state, local, federal) decrees it by a new law. For that reason, many of us oppose giving the gun controllers any additional steps toward that goal because the goal is not to reduce crime but to identify all legal firearm owners and their firearms for confiscation.
The question then to me is whether this is such a step for the gun controllers or whether it is a clever way to let the air out of the balloon for support for something abominable like the Washington State Initiative where even handing a buddy a shotgun in the field or giving your child a gift of a firearm constitutes a "transfer" requiring background checks. As usual, the devil is in the details but perhaps this is a clever outflanking of the gun control lobby.
The facilitator idea seems fairly intriguing as it does not require the heavy lifting of getting an FFL but allows background checks and some degree of protection from having to keep 4473's. Depending on how it is worded, it could very well override state laws such as in WA due to the Supremacy and Commerce clause powers of Congress. If it allowed facilitators to engage in interstate commerce then it would actually increase competition and lower fees and give purchasers more options.
It would also seem to avoid the pointless multiple background checks for transfers to family and friends by the advertising component. You should know whether your family member or a friend is a prohibited person which is really what this is all about and thus if you knowingly sell or give a firearm to a prohibited person, you deserve what you might get from the law.
The advertising bit is a bit interesting as a concept. If you are advertising, then you are most likely selling to a stranger or a vague acquaintance. You will not know if you simply require a driver's license for the buyer id whether or not the person is prohibited and even documentation such as a driver's license or even a ccl can be faked quite easily today. Thus, stranger sales get a background check via facilitators but friends and family transfers do not where you know the buyer and their background. Sales records by facilitators are required to be kept but not form 4473's by my understanding of this sketchy proposal as presented.
BTW, advertising is engaging in commercial activity and can and has been regulated by local, state, and federal law and it only has partial protection from the 1st Amendment for obvious reasons, fraud, deception, selling illegal items, and so on. Many locales regulate the number of "garage sales" that one can have as well as the signage for them. Conducting business, whether or not it is regularly conducted as a commercial enterprise, is something that has been regulated by different levels of government since the beginning of history, whether or not it is a private sale (see selling prescription drugs as an example). Selling firearms is not exceptionable compared with other items such as selling booze, cigarettes, vaping materials, etc. There is not an enumerated right to sell something in the Constitution but instead a right to retain property. The ability to transfer property can and is regulated by the state and has been historically back to the founding. It has and did differ on what exactly has been regulated but not the principle of regulation itself. Already, the federal government and states restrict firearm purchasing by age, not being a prohibited person, etc. and the courts have blessed these restrictions. Thus, like a person of compromised virtue, we are now arguing about the degree of compromise rather than the principle.
As a community, we should not want prohibited persons to obtain firearms from us and many of us want privacy for their firearm purchases from possible government confiscation in the future. Folks, if you have done any transactions such as buying ammunition, scopes, firearm ammo magazines, subscribing to gun magazines, posted on the THR about your collection or other social media, are a member of the NRA or other 2A organizations, receiving email flyers from gunstores, etc. ,have Molon Labe bumperstickers on your vehicle etc., they know you have firearms, whether or not you filled out a form 4473 or not and thus have probable cause for a search warrant.
If the gun confiscation apocalypse ever comes to pass, they do not need to provide the courts with evidence of a specific serial number but only that you likely have possession of the now illegal firearms. None of that your other commercial or private activities such as posts with pix or buying firearm accessories is protected private information under the 4th and 5th requires a warrant and thus can be gathered together to get one. All of the above information mentioned above can be gathered either by surveillance or subpoenas without your knowledge or consent and then used to get probable cause if the great government confiscation drive occurs. Once that happens, they can tear up your house or other property, literally, to find the "firearms" listed in the search warrant.
Right now, I would like to see the language of the proposed statute first but unlike some, I am not at the point of rejecting the concept yet. Ultimately, I doubt the Democrats would support it because it will take a talking point away from them and their big donors want something a great deal more such as assault weapon seizures and firearm laws more like NY and CA has instituted. So we shall see.
Peachy.
