Thoughts on private gun sales bans and registration
Here are my own thoughts. A ban on private sales will be unenforceable in the near future, since guns being found will have been initially sold before its effective date, and thus a lawful private transfer before the ban went into effect cannot be ruled out.
But even after, say, ten years pass, the ban will still be unenforceable in practice unless Congress also either:
1) Enacts national firearm registration, requiting FFLs to report all sales so they can be placed in a national database, and requires such reporting backdated to the effective date of the private sales ban, or
2) Makes firearm possession illegal, period, providing for a defense if the gun owner can prove they bought the gun before before the effective date of the ban, or bought it from an FFL after the ban.
If Congress doesn't enact (1) or (2), then a private sales ban could not be enforced. A prosecution would be required to prove that the possessor didn't acquire the gun through an FFL, and that would require checking the 4473s of every FFL in the State, quite possibly for years in the past.
Unfortunately that won't prevent them from passing the law without your predicted features. Then at some time in the future: "We need to close the "loophole" in order to make it effective." They'll simplely recycle the propaganda meme.
Posted by: rspock at February 15, 2013 11:57 AM
Well, not legally anyway. Won't prevent them from putting a boot to your neck regardless.
Posted by: TinCan Assassin at February 15, 2013 12:37 PM
I'm not so sure. If someone illegally buys a gun from me, then it's likely they are either a prohibited person, intend to commit a crime, or both. If the buyer is then arrested, he would be motivated to inform on me to the police in exchange for a reduction in sentence. Since I know this beforehand, why would I as the seller agree to break the law? Only two possible reasons: my political beliefs or because I am getting an above-market price from the buyer. Most people wouldn't find either of those motives compelling, so most sellers are likely to comply with the law.
Posted by: David in Philly at February 15, 2013 01:18 PM
I would only add one point. A ban on private transfers would only be unenforceable to the extent that the defendant does not make any incriminating statements.
But, as I am sure you know, that is rarely the case.
Posted by: ArmedBarrister at February 15, 2013 01:49 PM
Background checks can also be defeated just by both, or even one, party keeping their mouth shut about a sale that did not involve a NICS check.
Posted by: Joe Huffman at February 15, 2013 02:08 PM
I'd like to say one thing. DUH! That's what they really are after anyway. They don't care about closing the loop hole. They care about national registration.
The irony here is that very same gun owners that would protest such a thing would would willing sign up if there were some national carry permit.
The government has seen what happens in other countries (revolution) even when the citizens are un armed. They want to know who has what and more importantly, they want the gun owners to know that they know who they are.
Why do you think all the federal departments are buying so much ammo.
Look at where the worlds resources are going. it doesn't take a math degree to project where we are headed. They want to be as armed as possible and know who they are up against.
Posted by: Anonymous at February 15, 2013 02:57 PM
People keep talking about firearm registration as if it was technically possible, and just a matter of law.
It isn't. Firearms serial numbers are not unique identifiers, the way automobile VIN numbers are. They do not uniquely identify a firearm.
The Canadians ran into this problem, with their registry. For any given serial number, there are quite a number of different firearms. Theoretically, serial number + manufacturer = model is a unique identifier, but original manufacturing model is not often determinable, for a firearm that has been modified.
After it's been restocked, rebarreled, and generally reworked, and then sold half-a-dozen times, will the guy who's entering it into the registry be able to correctly identify which of the couple of dozen manufacturing, and which serial number sequence, it was originally a part?
I have an old VZ-24 - a Czech-manufactured Mauser. The VZ serial numbers only run up to 10,000. After that they started over. There are marks to indicate which manufacturing run, but they aren't part of the serial number. Then there are the ones they made for Bolivia, Catalonia during the Spanish Civil War, the Wehrmacht, USSR, Romania, Persia, Brazil, etc., etc.
Any and all of these may have been imported into the US - not all of them in a way that generated paperwork. (Mine, for example, was brought back as a war trophy and has no import marks.)
The result of all of this is that if we allow the government to think it has a database that uniquely identifies who owns which firearm, we're going to see a lot of innocent people jailed simply because the government has screwed up its paperwork.
Currently this is something only the NFA collectors have had to deal with. And data errors in the NFA database has put innocent people in jail.
If we allow a national registry, this is something every firearm owner is going to face.
And it's not going to be pretty.
Posted by: Jeff Dege at February 15, 2013 08:04 PM
If Congress has the authority to ban things, why was the 18th amendment necessary? Don't tell me because the Supreme Court decided so. That is NOT an answer. The Court is wrong 99% of the time. If an amendment was necessary to grant Congress the power to ban alcohol, then equivalent amendments are necessary for EVERY other ban. Any study of the 1787 Convention and the Constitution proves, Congress has no power to ban ANYTHING regardless of what the SC claims to find in between the clear and concise lines of the Constitution.
The NFA is/was unconstitutional. Leges posteriore priores contrarias abrogant.
The 2nd amendment precludes taxing, regulating, etc by the fed. And don't attempt to feed me the you can't yell fire. The First Amendment is NOT about a right to freedom of speech. Freedom of speech is a privilege granted fro each of us to each of the others. Try reading the First, the word right is not in the section on speech or press or even religion.
And the supremacy clause carries the 2nd over as binding on the States, just as Rawle in 1825 and 1829 published in his law school texts.
Still, so much is wrong in the US that the government will do whatever the heck it pleases to abuse the people.
Posted by: fwb at February 16, 2013 09:27 AM
The real problem is that it will become a trap for the unwary and an add-on crime, of which we have too many already. People in flyover country, where guns are no big deal, will go to Grandpa John's funeral and pass out the guns to the grandkids, cousins, etc. Then the next time the police come over for some minor infraction like a minor drug charge or DV call out they will find the "illegal" gun and charge the poor sap with a felony, regardless if there is any evidence to charge him with whatever they were called out for in the first place.
Posted by: Jeff at February 18, 2013 08:10 AM
Any universal national gun registration scheme, however flawed, will lead to confiscation. Count on it. Leviathan recognizes no limits.
We simply must keep putting sand in the gears and hold information about personal firearms private. Buy as much as you can with cash. Fight NICS background checks for ammo purchases.
At the very least, we need to keep the information scattered across many government departments, in different formats, as bureaucratic inertia works to our favor.
Posted by: Publius at February 18, 2013 08:32 AM
California has had no problem prosecuting illegal private transfers since they “closed the gun show loophole.”
This is because they implemented your option No. 1, forcing dealers to instantly report all transfers to the state via the Internet-based Dealer's Record of Sale (DROS).
Handgun transactions are registered and kept on file by the state. And beginning in 2014, long guns will also be registered.
The anti-gun organizations that write the model laws are well aware of the issues surrounding private sales and will not fail to plug this “loophole.”
Posted by: Glen at February 19, 2013 01:16 AM