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Bloomberg's Bad Idea

The Truth About Question 1

As proposed, Question 1 would forbid a person from transferring a firearm to another person unless facilitated through a licensed firearms dealer.  Both parties to the transfer must appear jointly at a willing dealer, who must conduct a background check through the National Instant Criminal Background Check System and comply with all state and federal requirements as though he were selling or transferring a firearm out of his own inventory.  

While proponents of the initiative often refer to it as a background check on sales of firearms, the true effect of Question 1 would be to criminalize otherwise-lawful behaviors with firearms.  As a general rule, the background check requirement would apply to all transfers, not just sales.  The initiative lacks a definition of “transfer”, but the inclusion of exceptions for very short duration temporary transfers implies that the simple act of handing a firearm to another person would be illegal if the initiative becomes law.  This overbroad nature of the initiative would criminalize many transfers that take place as part of hunting, recreational shooting, and even self-defense.  

 

Current Law

The law regarding sales and transfers of firearms generally follows the sales of most regulated products in the United States.  Commercial sales are heavily regulated, but incidental sales and transfers by persons not in the business of selling firearms are not subject to some of these regulations.  

Current federal law requires that “dealers” of firearms hold a federal firearms license and that any person who acquires a firearm from a dealer passes a background check that includes an inquiry of the National Instant Criminal Background Check System (“NICS”).  Nevada Department of Public Safety acts as a Point of Contact (“PoC”) for all NICS checks conducted by dealers in Nevada.  In PoC states, rather than directly contacting the NICS system, dealers contact the PoC, which conducts checks of NICS and other state databases.  Nevada DPS charges a $25 fee for each background check processed. 

In addition to the federal requirements on licensed dealers, current federal and state law prohibits anyone from knowingly transferring a firearm to a prohibited person or to a person who is a resident of another state.  Nevada also has a system that allows unlicensed persons to voluntarily conduct a background check on a potential firearm purchaser.  Voluntary background checks on firearm transfer through the state PoC system are provided at no cost to unlicensed transferors.

About The Initiative

If Question 1 were to become law, then individuals that seek to transfer a firearm would have to go to a federally licensed firearms dealer to have a background check conducted prior to transferring the firearm.  Notably, the dealer would be required to directly contact NICS rather than the state PoC.  This is likely due to a requirement that any initiative that makes an appropriation must include a tax to cover the cost of the appropriation.  Because NICS is funded by federal tax dollars rather than the state, the proponents of the initiative were able to avoid including a tax in the initiative.  The initiative further provides exceptions from the background check requirement.

Up to 364 days in jail and a fine up to $2,000 on a first offense.

The only permanent transfers that would be generally exempt from the background check requirement are transfers by or to law enforcement agencies or their employees as part of their official duties, transfers of antique firearms, transfer between immediate family members, and transfers that are part of estates or trusts that happen due to the death of the former owner.

The initiative also provides a self-defense exception for temporary transfers to persons who are not prohibited from possessing firearms and the transfer “is necessary to prevent imminent death or great bodily harm; and . . . lasts only as long as immediately necessary to prevent such imminent death or great bodily harm.”  

 

 

Other temporary transfers are legal only if “the transferor has no reason to believe that the transferee is prohibited from buying or possessing firearms under state or federal law” and “the transferor has no reason to believe that the transferee will use or intends to use the firearm in the commission of a crime . . . .”  Even if these two conditions are met, the only legal temporary transfers would be those occurring “[a]t an established shooting range authorized by the governing body of the jurisdiction in which such range is located; [a]t a lawful organized competition involving the use of a firearm; [w]hile participating in or practicing for a performance by an organized group that uses firearms as part of the public performance; [w]hile hunting or trapping if the hunting or trapping is legal in all places where the transferee possesses the firearm and the transferee holds all license or permits required for such hunting or trapping; or [w]hile in the presence of the transferor.” 

Any transferors who do not comply with these requirements could be charged with a gross misdemeanor and upon conviction would face up to 364 days in jail and a fine of up to $2,000 on a first offense.  Second and subsequent offenses would be punished as a category C felony, which carries a potential punishment of up to five years in prison and a $10,000 fine.

Practical Problems With Temporary Transfers

The initiative’s general prohibition on handing a firearm to another person creates a number of problems with common and otherwise lawful activity with firearms.  In many cases, the provided exceptions within the initiative are too narrow to protect individuals engaging in these activities.  Many problems arise from the lack of clarity provided in the initiative.  Three important terms used in the initiative lack definitions.  As previously discussed, there is no definition provided for “transfer,” but the implication of the initiative seems to be that all transfers of possession of a firearm are subject to the background check requirement.  

The second undefined term is even more problematic.  One exception generally allows for temporary transfers that occur “in the presence of the transferor.”  “Presence” is not defined, so it is unclear if the transferor has to remain in visual contact, close enough for physical contact, or some other proximity to the transferee.  This exception is extremely important, as it would act as somewhat of a “catch all” due to the very specific nature of the other exceptions.  But, its effect would be very dependent on its interpretation.  For example, many instructors conduct the classroom portion of firearms safety courses away from “established shooting ranges” due to cost or available classroom facilities.  In these situations, the instructor would be entirely dependent on the “presence” exception while students use provided demonstration firearms.  A restrictive interpretation of the “presence” requirement could make teaching firearm safety courses difficult, if not impossible.  Something that is almost certain to decrease rather than increase public safety.

"Three important terms used in the initiative lack definitions" 

The third undefined term is in the exception for temporary transfers at an “established shooting range . . . .”  There is no definition of “established shooting range,” but it could be read to exclude a non-commercial ranges.  This is a significant problem in Nevada, where informal shooting ranges often exist on public lands.

The temporary exception for hunting and trapping also has many problems.  That exception provides that the background check requirement does not apply to transfers that occur “[w]hile hunting or trapping if the hunting or trapping is legal in all places where the transferee possesses the firearm and the transferee holds all licenses or permits required for such hunting or trapping.”  This has several problems.  First, it requires that the transfer actually occur in a place where hunting is legal.  This is unlikely given most scenarios where a person borrows a firearm for hunting.  Second, it only applies “while hunting or trapping” and apparently not in the preparation for hunting or immediately after hunting, which is likely to entrap many unwary hunters who would likely continue to possess a firearm at a minimum shortly before and shortly after an actual hunt.  Third, it requires that the transferee possesses all required licenses and permits for the transfer to be legal, so the transferor could be punished for a simple mistake by the transferee.  For example, if “A” transfers “B” a shotgun to go upland bird hunting, but B accidentally shoots a bird he is not licensed to take, then A would be guilty of a gross misdemeanor even though he had no way of knowing that B might make a hunting error.

Potential Conflict With Federal Law And ATF Procedures

A potential conflict also exists between the requirements in the initiative and current ATF procedures.  The initiative language does not separately define the term “transfer" as to distinguish from a sale, loan, gift, etc.  ATF procedures refer to transferees as buyers and require dealers to record the firearm on their ledgers once in possession of the firearm.  The initiative language is unclear in suggesting that possession of the firearm is given to the dealer twice during the transfer-once upon arrival for the background check and then again upon return for actual transfers: 

Sec. 5 NRS2O2.254 would be amended as follows:

" 3. A Licensed dealer who agrees to conduct a background check pursuant to this section shall take possession of the firearm and comply with all requirements of federal and state law as though the Licensed dealer were selling or transferring the firearm from his or her own inventory to the buyer or transferee, including but not Limited to, all recordkeeping requirements . . . . "

" (b) the seller or transferor may remove the firearm from the business premises while the background check is being conducted, provided that before the seller or transfer or sells or transfers the firearm to the buyer or transferee, the seller or transferor and the buyer or transferee shall return to the licensed dealer who shall again take possession of the firearm prior to the completion of the sale or transfer. "

 

The initiative states that these transfers are to be treated “as though" the licensed dealer were conducting a sale and requires the licensed dealer “to take possession of the firearm." The dealer's taking possession of the firearm should prompt the dealer to record an acquisition in the acquisition and disposition (A&D) record, as required by ATF Proc. 2013-1. Once that happens, however, federal law would normally require the dealer to run a background check before relinquishing possession of the firearm.

Nevertheless, the initiative's procedure also allows for the firearm to leave the premises, apparently even after the dealer has taken possession of it and while the results of the background check on the transferee are still pending In this event, according to the language of the initiative, "the seller or transferor and the buyer or transferor shall return to the licensed dealer who shall again take possession of the firearm prior to the completion of the sale or transfer."

Thus, the procedure contemplated by the initiative is at odds with ATF's guidance on federal law.  According to ATF Proc. 2013-l, “If the private party (seller) has not relinquished possession, he or she may leave the business premises with the firearm". Nevertheless, if the seller “leaves the firearm in the exclusive possession of the FFL at the FFL's business premises," the FFL must enter the firearm in the A&D record, and the seller would be required to fill out the required form and pass a background check before reacquiring it.

The End Of Many Firearm Transfers And The Beginning Of A Firearm Registry

The initiative language also states that participation by dealers in private party transfers would be voluntary.  Because of the legal conflict and uncertainty, many dealers might refuse to run these checks.  Those dealers that are willing, must agree to assume the risk and uncertainty and are likely to demand costly fees for the service.  The initiative language states that the dealer may charge a reasonable fee, but it does not cap or otherwise limit the dealer's discretion in this regard.

Even transfers that do not result in a change of ownership would presumptively have to go through the initiative's formalities.  Thus, dealers would potentially have multiple records of the same firearm changing hands again-and-again, essentially creating a paper trail of everybody who handled the firearm.  The record-keeping burdens on the dealer would be considerable, and the records generated could form the basis for a later registry not just of those who own firearms, but those who merely took possession of one, for any purpose or length of time.

Ways You Can Take Action Now

Election Day 2016 will be here before you know it and, to ensure this gun-control initiative is rejected, we need your active participation now!

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