S. 374, the "universal background check" bill
At Shall Not Be Questioned, Sebastian hits the bill hard, and so does Only Guns and Money. I've had a chance to read it (he has a link to the text, and fully agree. It's incredible this thing ever got out of committee. I'll here describe it by page rather than subjection.
Universal background check (p. 11): this applies to any firearm “transfer,” which is defined as including “a sale, gift, loan….” (p. 13). So just handing a firearm to someone else is a forbidden “transfer’ unless it falls within an exception.
And note “loans” and “gifts” are different matters. As Sebastian notes, the bill has exemptions for “bona fide gifts between spouses” and other close relatives, but this only covers gifts, not loans. Handing your spouse or child a gun in the field would be a “loan” and thus a violation (unless you brought an FFL with you to authorize each handing over of a firearm).
Another example. Let’s suppose you go shooting in the countryside (or even on your own property, not near your house) with a friend, and you loan them your rifle for a few shots. You just committed a federal crime, and they’ll commit one when they had it back.
Look at the exemptions on pp. 11-13. It’s not a transfer between spouses, or other designated family. It’s a not a transfer by will. It’s not a temporary transfer “in the home or curtilage” (the area immediately around the house), it’s not a transfer at a target range, nor while hunting. It’s a loan not within any exemption.
The penalty? This section will be numbered as 18 U.S.C. §922(t). Under §924, “Whoever knowingly violates subsection (s) or (t) of section 922shall be fined under this title, imprisoned for not more than 1 year, or both.”
Note the “knowingly.” That means you must have known of your action (you were conscious at the time) but not necessarily knew of the law. The fact that you didn’t know that there was a law against handing your friend a rifle is immaterial.
Or suppose you take a firearm to show to a friend, while inside his house, and let him hold it. Again, a violation. The exemption for a temporary transfer inside the home only applies if it’s the transferor’s home.
Or suppose you hand him a firearm while at a shooting range. You’d better check out the ownership of the range, because the exemption for temporary transfers at ranges only covers ranges owned or occupied “by a duly incorporated organization,” with the specified purposes. If the range is owned by an individual, or a partnership it’s not within the exemption. Ditto if its corporate purposes are not those specified in the bill, so you'd better check its articles of incorporation.
The bill also empowers the Attorney General to shut down all person-to-person transfers, even thru FFLs. He is instructed to promulgate regulations setting a maximum fee that FFLs may charge for handling such transfers (p. 13). So set the fee at $10 and no FFL will take a gun, log it into his books, log it out of his books, check the 4473 and run the background check for so small a sum. Ergo, all transfers between individuals will halt.
Lost and stolen guns reporting (p. 14). The bill requires anyone who has lost a firearm or had it stolen to report it to the Attorney General, and to local authorities, within 24 hours. A violation is penalized by §924(a)(1)(B), which provides that the offender “shall be fined under this title, imprisoned not more than five years, or both.” It moreover need only be a “knowing” violation, not a “willful” one. That is, it is enough prove the defendant knew that he had had the gun stolen and knew that he didn’t report it, even if he had never been told of the requirement to report.
On the side: it appears the drafters of the legislation, as is all too common, had no knowledge of existing gun laws. The AG’s regulations must require of “record of transaction” of any transfer under paragraph 1. (p. 13). That paragraph covers transfers handled by FFLs, and requires the FFL to take possession of the firearm and comply with all requirements for selling a firearm. (p. 11). Those include logging it into and out of his acquisition and disposition book, and getting a 4473 from the recipient. Whoever drafted the bill apparently did not know that FFLs are required to record all transfers!
I don’t know if this reflect cleverness or ignorance, but the bill provides that “notwithstanding any other provision of this chapter,” the AG may promulgate regulations. (p. 13). This may reflect ignorance of the fact that the AG already has power to promulgate regulations to enforce the Gun Control Act. 18 U.S.C. §926. Or it might be a clever attempt to get around that section’s restriction that he promulgate “only such rules and regulations as are necessary to carry out the provisions of this chapter.”