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The Bad and the Ugly of the Cornyn-Murphy ‘Bipartisan Safer Communities Act’


cornyn murphy
Shutterstock

By Gary B. Wells

The “Bipartisan Safer Communities Act” is a wholesale sellout by Sente RINOs and the a give-away to anti-gun liberals. The result is several more gun control laws while spending huge amounts of money on government programs and grants that will have no impact on violent crime or school shootings.

The Cornyn-Murphy legislation expands the prohibitions and scope of current criminal statutes, creates several new crimes, complicates the process for firearm transfers to young adults (that will ultimately expand to all transfers), bribes states to create their own unconstitutional gun-confiscation programs, gives millions of dollars to the FBI to further restrict firearms, and throws billions of dollars into grants and other programs that have already failed and will inevitably be used to fund further anti-gun “research” and legislation.

And what did the bipartisan compromising Republicans get in return: useless verbiage that any state red-flag laws must comply with constitutional guarantees and that future Fast-and-Furious operations (where the government provided firearms to drug cartels) must be more closely monitored.

These violations would have been more properly addressed by prosecuting Eric Holder and the ATF agents who were involved in the illegal fiasco, which resulted the death of U.S. Border Patrol Agent Brian Terry as well as others across the border.

For most politicians, the answer to every “crisis” is to provide the government with more power and control through direct criminal and civil laws while throwing billions of dollars into grants and programs that only lead to further political corruption. In this latest bipartisan compromise, the RINOs are complicit.

None of these laws ever work to solve the problem they’re purportedly aimed at. After all, that would prevent the need for still more laws and money in the future.

None of the provisions of the “Bipartisan Safer Communities Act” will have any material impact on solving school or other shootings. They will, however, infringe on the Second Amendment rights of law-abiding citizens and ensure lawmakers become more powerful through their influence as to who receives the exorbitant amounts of taxpayer money (including family members and campaign donors).

Failure Demands More Dollars

When the country is already enduring the worst inflation in more than forty years, Congress continues to spend huge amounts of money, further exacerbating the problem. The “Bipartisan Safer Communities Act” continues that.

The act, which directly resulted from the Uvalde school shooting, provides significant changes to Medicare to allegedly address mental health services, but most of these involve providing states with large amounts of cash to be used for various grants and studies. None of this money will be used to protect schools or students themselves.

These grant amounts for various mental health and drug programs include over $100 million. A Pediatric Mental Health Care Access grant is amended to be increased from $9 million per year to $31 million for each year from 2023-2027.

The Medicare Improvement Fund is to receive another increase over the current $5 million from last year to $7.5 billion. (The amount was left blank in the “discussion draft” of the bill.) This has nothing to do with the bill’s stated purpose. Another $800 million will go for “Health Surveillance and Program Support,” which involves providing more money for existing programs along with $190 million for the Public Health and Social Services Emergency Fund.

Another $1 billion is provided for Safe Schools and Citizenship Education, which further funds existing grant programs related to mental health, including “Mental Health Services Professional Demonstration Grants” (designed “to support and demonstrate innovative partnerships to train school-based mental health service providers for employment in schools and local educational agencies”).

Many of these programs are actually progressive research projects to support liberal academia, increase the influence of schools over parents, and repay teacher union support for Democrats. These grants and programs aren’t new or innovative. But, because they are failing to solve the problem at hand, they obviously need more money. Within government, failure is chalked up as the result of insufficient funding.

The ATF will receive $1 million each year from 2023 and 2027 to “continue and expand current efforts . . . to educate [FFLs] and the public to combat illegal straw purchases of firearms.” The reality of these laws is to scare people from selling and transferring firearms under the fear they will be prosecuted for straw sales, firearms racketeering, RICO violations, and under drug trafficking laws.

The FBI gets another $100 million for salaries and expenses related to administrating the inaccurate and pointless NICS background check system, where law-abiding citizens are denied and delayed transfer approval because of inaccurate or misinterpreted records and felons aren’t prosecuted for lying on the Form 4473.

Another $1.4 billion is allocated for state and local law enforcement grants to be administered by the Office of Justice Programs. (Will these be used to aid law enforcement, or to pursue “restorative justice” and other airy-fairy progressive nonsense that will only further thwart law enforcement efforts to catch and prosecute actual criminals?)

The bill will provide $1.05 billion for school improvement programs. Will this money to be spent securing our schools? Of course not.

It will be used to “increase support for the implementation of evidence-based practices intended to increase attendance and engagement of students in the middle grades and high school in community learning centers.” That means more tax-funded, after-school day care. Hasn’t playing basketball after school already been tried?

Biden gun control bill sign signing
President Joe Biden signs into law S. 2938, the Bipartisan Safer Communities Act gun safety bill, in the Roosevelt Room of the White House in Washington, Saturday, June 25, 2022. (AP Photo/Pablo Martinez Monsivais)

These billions of dollars could be used to actually address the problem if they were simply used to provide security measures within school and to provide training and programs for armed school personnel and safety officers. But that would make too much sense.

A New Law for Straw Purchases

Long ago a question to the Form 4473 asking if the purchaser is the “actual transferee/buyer” of the firearm. If not, the FFL could not transfer the firearm. If the purchaser lied on the form and then transferred the gun to a prohibited person, the initial purchaser wasn’t prosecuted for purchasing a firearm for the “straw purchase,” but for lying on the Form 4473.

The ATF maintained this position until 1995 when they began to extend prosecution for straw purchases even if the ultimate recipient of the firearm was lawfully allowed to purchase and possess the firearm. Exceptions were allowed for gifts and purchases intended for resale or as a raffle prize.

Ultimately, the United States Supreme Court, in a 5-4 decision, concluded that it didn’t matter what the ATF believed as to whether the ultimate recipient needed to be a prohibited person or not. It is the courts who interpret the law. Whether or not the ultimate recipient was a prohibited person or not was irrelevant.

If the person purchasing the firearm made a false statement when they stated they were the actual transferee/buyer of the firearm and they were not, they lied. Thus, as Justice Scalia pointed out in his dissent, the ATF could make up any question for Form 4473, such as the buyer’s favorite color, and should this be false, the buyer could be prosecuted.

The “Bipartisan Safer Communities Act” now creates statutory law codifying the “straw purchase” law created by the courts, making the act of purchasing a firearm for another person illegal of the buyer knows or has reason to believe that the other person 1) is a prohibited person; 2) intends to use the firearm in the furtherance of a felony, for federal terrorism, or drug trafficking; or 3) intends to transfer the firearm to a prohibited person (a second level of transfer). Sentences for violating this law include fines and 15 to 25 years in prison.

The potential good news is that this new law makes more sense in that persons purchasing firearms for another person who is not a prohibited person, planning to use the firearm to commit a felony, etc., cannot be prosecuted. There is absolutely no justification making it a criminal offense to purchase a firearm for another person who would have passed the background check on their own.

However, it is not clear whether the ATF will now remove the irrelevant question on Form 4473 and still hold purchasers criminally liable for lying on the form if purchasing the firearm for a person who is not prohibited from possessing a firearm. Without making this change, the potential benefit is lost.

The bad news here is the criminal liability exposure under the “reason to believe” language. The purchaser doesn’t actually have to know the status or intention of the recipient. The “reasonable cause to believe” language works very well for prosecutors when they can’t prove the person actually knew something. They then argue that he should have known.

Whatever the “reason to believe” standard is, it is less than actual knowledge. This is an unfortunate and vague phrase used in other firearm laws to aid in convictions. This phrase is also often used as the standard for issuing search warrants, illustrating how weak the threshold is for meeting the standard.

Gun Background Checks 4473
(AP Photo/Brennan Linsley)

Example: a person purchases a firearm with the intent to gift it to his 28-year-old nephew. (No “straw sale” exception exists for gifts now.) The nephew picks out the firearm he wants and his uncle purchases it for him. However, when the nephew was eighteen, he and some friends hauled away a large composite steer from the front of a steak restaurant and placed in on the property of a rival high school with a sign stating the school was full of BS, leaving behind a large amount of manure for effect.

The nephew was charged with a felony and, if he had been convicted, would be a prohibited person. The nephew, however, plead guilty and the court, understanding the situation, sentenced the nephew to a fine and community service. The nephew didn’t spend a day in jail. Based on the limited sentence, the uncle didn’t realize that his nephew was a prohibited person because what matters is the potential sentence, not the actual sentence.

Did the uncle have reasonable belief that his nephew was a prohibited person? Was he expected to investigate further, discuss the matter with his nephew (assuming his nephew understood the repercussions of the guilty plea), talk with his nephew’s parents, talk with his nephew’s attorney, review the court records, research the law, etc.?

How much information is needed to form “reasonable cause”? Suddenly the uncle and the nephew may be felons over the gift and subject to serious prison time and fines. Also, depending on what the salesperson knew, they and the store may also be subject to prosecution.

A New Law for Trafficking in Firearms

The Cornyn-Murphy bill also creates a new law allowing for the prosecution of “trafficking in firearms.” A person can be convicted for “trafficking in firearms” by shipping, transporting, transferring, causing to be transported, or disposing of even a single firearm to another person if the person knows or has reasonable cause to believe that the use, carrying, or possession of the firearm by the recipient would constitute a felony.

In such a case, the recipient of the firearm is also “trafficking in firearms.” In some situations, the same person may very well be prosecuted for making a straw purchase as well as trafficking in firearms.

Again, there is that same, vague “reasonable cause to believe” standard. In addition, as a catch-all, it’s also a crime to attempt or conspire to commit these acts. Federal prosecutors find conspiracy convictions very handy when the parties haven’t committed an actual crime. Often, the “conspiracy” is with another law enforcement officer, who then testifies against the co-conspirator. This is obviously entrapment, but prosecutors still get convictions.

In addition to the 15-year penalty for any violation, “any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation” shall be forfeited.

Extensive laws allowing for the forfeiture of firearms and ammunition already exist. However, these laws provide some protection by allowing a person who sues to government to have those items returned to recover attorney fees. There are no such protections under this new law.

Thus, if you use your car, boat or airplane to transport the firearm, you can lose your car, boat or airplane. If you store the firearm at your house, you can lose your house.

The due process rights that normally apply in criminal cases to do not apply in forfeiture actions. Instead, separate civil cases are created for the property and the person must sue the government to get their property back.

Because the standards for proof for the government to keep your property are so low and the costs so prohibitive, many times the property simply becomes an asset to the law enforcement agency. As exemplified with drug trafficking, law enforcement finds these forfeiture laws very lucrative.

In response, if you wish to transfer a firearm to someone else, you may want to provide the firearm to an FFL and have a background check performed, even if only for a short-term loan. However, there is no guarantee that this will be sufficient. The government can and does make mistakes. You can’t.

While the background check may provide evidence of your intent to follow the law, if you still have a “reasonable belief” (whatever that is) that the relative may be prohibited, you are still in violation of the law. A background check does not cover all of the potential grounds for prohibiting a transfer. After all, Hunter Biden lied on his Form 4473 and passed the background check while addicted to drugs.

New Laws Added to Racketeering and Money Laundering Statutes

The straw purchase and trafficking in firearms crimes have also been added to the racketeering and money laundering statutes which were initially created for mobsters. This creates further crimes and penalties, as well as reduced evidentiary standards. In addition, anyone convicted under these new laws is subjected to the increased penalties under federal sentencing guidelines.

Previously, a person was prohibited from “knowingly” transferring a firearm to a person they “knew” would use the firearm to commit a crime of violence or drug trafficking. Violators could be sentenced to a fine and ten years in prison.

The new law adds a crime for the recipient as well as the transferor, adds a new crime for “attempts or conspires” to transfer when there was no actual transfer, and makes it easier to violate the law because actual knowledge of the buyer’s intent is no longer required. The person needs only to have a “reasonable cause to believe” that the firearm or ammunition will be used to commit terrorism or drug trafficking.

Can this reasonable belief be found based on the person’s clothing, bumper stickers or tattoos, association with certain groups, political affiliation, etc.? What is the transferor’s obligation to investigate and what can trigger that need?

With minimal evidence of a “reasonable belief” or a “conspiracy” regarding the sale of a single firearm, a person can be convicted under the laws of trafficking in firearms, racketeering, and money laundering statutes and lose many of their civil rights, their most significant assets, and spend a significant amount of their life in prison.

The New Law Includes Ammunition

In addition to the new laws summarized above, the “Bipartisan Safer Communities Act” makes it illegal to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person intends to sell or otherwise dispose of the firearm or ammunition in furtherance of a felony, a federal crime of terrorism, or a drug trafficking offense or intends to sell or otherwise dispose of the firearm or ammunition to a person who is a prohibited person.

Background checks aren’t relevant here as the categories under this new law deal with potential future conduct of the ultimate receiver of the firearm or ammunition, including possibly transferring the items to a third party the seller/transfer doesn’t even know about.

ammo ammunition feat
Dan Z. for TTAG

Before selling or transferring a firearm or ammunition to another person, you may want to have them sign a statement, under penalty of perjury, that they are not a prohibited person, do not intend to use the firearm or ammunition in furtherance of a felony, commit a federal crime of terrorism, or a drug trafficking offense. Nor do they intend to sell or otherwise dispose of the firearm or ammunition to a prohibited person.

All of the definitions and formalities should be included with the statement.

Would doing that be sufficient to protect yourself? Maybe. Is it unreasonable? Definitely. Is there a pattern forming with these laws? Of course.

The subtext here is, you shouldn’t be transferring firearms to anyone as you may lose everything you have, including your fundamental rights and freedom if you do. But of course, none of these laws constitute an infringement of the Second Amendment because all of the Republicans who voted for the law also support the Second Amendment and would never infringe on that right.

The New NICS Procedures for Young Adults

The new law provides for additional background check scrutiny for adults between the ages of 18 and 20. Normally, when an FFL submits the information for a background check, the firearm cannot be transferred unless either (i) the transfer is approved and the system has provided the licensee with a unique identification number; or (ii) three business days have elapsed since the licensee contacted the system, and the system has not notified the licensee that the recipient is a prohibited person.

For persons aged 18-20, this three business days is now expanded to ten business days if the FBI determines that “cause exists to further investigate a possibly disqualifying juvenile record.” The need for this additional time is supposedly to allow the FBI to review the young adult’s criminal juvenile history records and mental health adjudication records.

There are several concerns about this process. First, the “cause exists to further investigate” standard will always be met, at least according to the FBI. Logically, some evidence should exist based on what is discovered in the first three days to justify further investigation. This logical requirement, however, is unlikely to be considered necessary.

Inevitably, the FBI will always find the need for additional time to obtain and review the records regardless of whether they have any existing evidence justifying the need or not. That creates a de facto 10-day waiting period for adults under 21 years of age. To avoid such abuse, the statute needs these decisions to be evaluated by an independent agency and needs to provide consequences when abuses occur.

Second, the existing problems with the NICS system will only be perpetuated. The same Texas Senator responsible for the disaster Fix NICS legislation, John Cornyn, also lead the capitulation with this legislation.

As John Lott’s extensive research has established, the vast majority of transfer denials under the NICS system are erroneous. Part of the problem is that law enforcement reports information that doesn’t constitute a prohibition, such as arrest records. Rather than recognizing that an arrest record does not mean a person was convicted, the FBI uses the evidence as information that a conviction may have occurred and denies the transfer.

The potential purchaser then has to incur time, and often legal fees to establish that no charges were ever filed, the charges were dropped, the arrest never led to a conviction, the conviction was for a lesser offense that didn’t lead to a prohibited person status, that the conviction was expunged, etc.

The combination of too much and often incorrect information and the FBI’s failure to require the records to establish prohibited person status rather than placing the burden on the purchaser to prove otherwise has led to an expensive and unreliable system. This system fails to provide the protections for which NICS was established.

Moreover, in the few cases where a prohibited person does apply for a firearm transfer, the person is rarely prosecuted.

Third, the additional evidence of juvenile criminal history will not be limited to those aged 18 to 20 for long. Once the new system is running, it will inevitably be expanded to background checks for all transfers. This is merely the first step to get the system up and running.

Fourth, the very system of the felony prohibition is flawed. A person should not be prohibited from protecting themselves, their family, and others based on a nonviolent felony. Opening up juvenile records will inevitably find a large number of nonviolent felonies that have nothing to do with whether the person should have his or her rights to possess a firearm removed.

Only violent felonies should be considered. This violent felony limitation for everyone would have made a significant and fruitful compromise had the complicit GOP senators actually been interested in insisting that the Democrats provide a substantive compromise.

Finally, holding 18 to 20-year-olds to a different standard is clearly discriminatory and plainly unconstitutional.

Red Flag Laws

The most commonly discussed part of the Cornyn-Murphy gun control law in the press addresses the provisions for federal bribes that will be paid to states to create “mental health courts,” “drug courts,” “veteran courts,” and extreme risk protection order programs (ERPO). Federal dollars should never be used to pay for state programs, including bribing them to enact laws that the federal government can’t enact on their own.

Unfortunately, this problem is pernicious throughout our federal legislation. Federal politicians want the federal government to control everything, regardless of constitutional limits. They are generally successful through tax-funded bribes coercion, falling back on the erroneous extension of the Commerce Clause of the Constitution to regulate even entirely intrastate activity.

The problems with ERPO’s — also known as red flag laws — are extensive and have been addressed more completely by others, so only a few of the provisions are addressed here.

Police officers red flag confiscation order
(AP Photo/Gerald Herbert)

As an apparent “compromise,” the Cornyn-Murphy law provides meaningless requirements that any state ERPO programs enacted using federal dollars must not violate the Constitution or Bill of Rights…as though the new laws could violate the Constitution and Bill of Rights if it were not for these legislative provisions.

This law’s language has no teeth. It’s the judiciary that will determine if the provisions are constitutional. It’s hard to find a liberal-leaning court that finds restrictions on the possession of firearms to be a constitutional violation. Instead, their view is that the Bill of Rights exists to protect criminals, not law-abiding citizens who are merely having their firearms confiscated.

Moreover, these provisions ignore reality. State judges are generally subject to elections. A judge improperly granting an ERPO faces little risk of from voters. However, a judge who refuses an ERPO and then someone is subsequently injured will face stinging voter backlash.

Despite any good intentions of the judiciary, the system is stacked against the firearm owner. Rather than providing some heightened burden of proof, such as beyond a reasonable doubt, that must be met before firearms are confiscated, the act merely provides for “heightened evidentiary standards and proof which mean not less than the protection afforded to a similarly situated litigation in Federal court or promulgated by the State’s evidentiary body” to provide the necessary constitutional protections.

Thus, the state decides the standard of proof and the Cornyn-Murphy gun control law provides no concrete threshold on what that standard must be. This is just one more example of intentional vagueness that will ultimately allow for firearm confiscations based on meager or nonexistent evidence.

While the federal law provides for “the right to be represented by counsel,” it also explains that pursing this right will not be an “expense to the government.” Thus, a person is not entitled to a public defender before their firearms are confiscated. Legal fees for such proceedings, including investigators and expert witnesses, can easily reach $25,000.

Domestic Violence Misdemeanor Convictions

The new gun control law expands the relationships that qualify a person as a prohibited person based on a domestic violence misdemeanor conviction. The definition now includes dating relationships, addressing liberals’ screaming about the alleged “boyfriend loophole.”

As a result, a dating relationship is now vaguely defined as “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” Relevant factors in deciding whether there is a dating relationship must be based on the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the individuals involved in the relationship. If we can’t get Supreme Court nominees to define what a woman is, how can we expect them to know what a “dating relationship” is?

There is absolutely nothing sufficient here to make a consistent determination. What is a “serious” relationship? What is a “romantic” relationship? If one party to the relationship buys flowers, does that make it “romantic,” or is it merely hopeful or a thanks for a past hookup? The individuals involved may have very different and conflicting ideas about whether a relationship is romantic.

How far must the two go before the relationship becomes “intimate?” Apparently, a strictly sexual relationship without romance is sufficient. How long is long enough to be a “continuing serious” relationship? What is meant by the “nature” of the relationship? How frequent must they be together or engage in romantic or intimate conduct? Is a monthly hookup sufficient? Does “friends with benefits” count?

All of these terms and factors are so vague as to guarantee inconsistent application to identical or similar relationships based on who is making the decision.

Also, who is going to make that decision? State laws regarding misdemeanor convictions may or may not be based on dating relationships and, even if they are, they may not be based on the same criteria. This makes it impractical for a person to know whether or not they are actually a prohibited person. The new law is so vague and the ability of a person to know whether it applies to them or not so undeterminable that the law is patently unconstitutional on its face.

There are specific grounds allowing for the removal of a conviction for a “dating relationship” misdemeanor crime of domestic violence: 1) conviction expunged or set aside, 2) person pardoned, or 3) person had firearms rights restored. However, anyone who receives an expungement or set aside order, is pardoned, or has their civil rights restored, is still a prohibited person if the order expressly states the person is still prohibited from possessing firearms.

Restoration is only available for dating relationships, but not when the relationship was for “a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.”

In these cases, the prohibited person status is permanent. These laws provide an arsenal of ammunition (no pun intended) in divorce actions, whether or not any domestic violence actually exists. Because all women should be believed.

Also, a person is not considered to have a misdemeanor domestic violence conviction related to a dating relationship if: 1) there is not more than one of these convictions (without other prohibited person qualifications); 2) five years have elapsed since the conviction or completion of the person’s custodial or supervisory sentence; 3) AND the person has “not subsequently been convicted of another such offense” (seems this is duplicative of #1), a misdemeanor conviction involving the attempted use of physical force or threatened use of a deadly weapon, or any other offense that would make the person a prohibited person.

The NICS system “shall be updated to reflect the status of the person.”

This will never happen and the legislators passing this law knew it. State law enforcement agencies do not have the time and resources to make these convoluted evaluations for each case on an ongoing basis. Events in NICS are generally reported, but rarely if ever followed up on or updated.

The FBI is not going to pursue states for failing to update their reports to NICS. Again, a law with no teeth is meaningless.

Information Collection and Studies for School Safety

The Cornyn-Murphy law provides that the Secretary of Homeland Security shall establish a “Federal Clearinghouse on School Safety Evidence-based Practices.” The clearinghouse will be coordinated with the Secretary of Education (who was asked to resign by several Congress members over links to a letter that targeted protesting parents), the Attorney General (who believes some parents are terrorists), and the Secretary of Health and Human Services (former California Attorney General after Kamala Harris and helped draft the Affordable Care Act).

The Clearinghouse shall serve as a federal resource to identify and publish online through SchoolSafety.gov practices and recommendations to improve school safety. The “evidence or research” that will be included is limited to those that “support a positive and safe leaning environment for all students,” as well as having “a significant effect on improving the health, safety, and welfare of persons in school settings.”

Democrats have already made clear that armed school safety officers and teachers are not consistent with a positive and safe learning environment and claim they have adverse effects on minorities. In fact, consultations under this new law will be made with government organizations and “non-governmental organizations, including civil rights and disability rights organizations.”

The results of these studies will be greater school influence on children at the exclusion of parents, greater concentration on progressive indoctrination in school at the exclusion of providing an education, and throwing a lot of money around for grants to anti-gun groups.

This research and the resulting reports will then be posted online with policies for all schools to adopt. Nothing immediate will be resolved and anything that might be truly effective in promoting school safety, such as preventing access to school buildings, training and arming teachers, providing for armed security, etc. will not be deemed an appropriate option under this program.

Removing Records from NICS

A few of the new laws apply to FFLs and related firearm transfers. For example, NICS reporting agencies, on an annual basis, “shall submit to the Committee on the Judiciary and the Committee on Appropriations of the Senate and the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives a report detailing the removal from the system of records that no longer prohibit an individual from lawfully acquiring or possessing a firearm” under the prohibited person statutes.

Each report submitted by a State or Federal agency under paragraph (1) shall include pertinent information on—(A) the number of records that the State or Federal agency removed from the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) during the reporting period; (B) why the records were removed; and (C) for each record removed, the nature of the disqualifying characteristic outlined in subsection (d), (g), or (n) of section 922 of title 18, United States Code, that caused the State or Federal agency to originally submit the record to the system.

fbi nics logo
Courtesy FBI.gov

Oddly, the most important provision of actually requiring these reporting agencies to remove this irrelevant information is NOT required. They are only required to report records they bother to remove. This results in a disincentive for these agencies to remove such records because, by doing so, they will have significant reporting requirements they will need to comply with.

Also, what records “no longer prohibit an individual from lawfully acquiring or possessing a firearm”? Technically, an arrest record would be such a record as an arrest does not make the a person prohibited. They must have existing charges or have been convicted of qualifying crimes. Accordingly, all arrest records should be removed and only records showing unresolved charges or convictions should be included, and only if the related charges or convictions involve a crime that would result in the person becoming a prohibited person.

There are several problems here. Most of the FBI’s erroneous denials of firearm transfers seem to be based solely on arrest records. The FBI relies on arrest records to deny firearm transfers under NICS on grounds that they provide evidence that the person may have a qualifying conviction.

Based on the disincentive to remove records and the federal attitude that arrest records should be included as relevant (even if they do not, by themselves, establish the person is a prohibited person), this law accomplishes nothing to benefit firearm owners. The FBI will continue to wrongfully deny firearm transfers.

These continued erroneous denials with threats by Sen. Cornyn to pass laws to prosecute any denial under NICS is a serious threat to those owning firearms. Law-abiding firearm owners could receive a wrongful denial and before they have time to get the FBI to admit they were wrong, a SWAT team will show up at their house, threaten those present, shoot their dog, tear the house apart, and confiscate their firearms. There is no recourse for the emotional trauma, loss of the house pet, property damage, legal fees, etc.

Currently, NICS is intended to be comprehensive of all law enforcement incidents, relevant or not. They include arrests where no further action was taken and information about charges or convictions that have nothing to do with being a prohibited person. Yet, the FBI will deem these records relevant as they are the basis for many if not most of their erroneous denials.

Under the new gun control law, state agencies are now required to make the relevancy determination (for state incidents), which involves the evaluation of both state law regarding the incident and federal law regarding firearms prohibitions. If states take this responsibility seriously, the NICS database should become significantly smaller, but there is also a high likelihood it will become more unreliable and inconsistent.

In most cases, however, states will not bother and choose to err in favor of reporting and keeping the information with the NICS system. As explained above, there is no requirement to remove the information and a significant burdens apply should they do so.

Moreover, they want to avoid any potential bad press from removing information from NICS about a person who later is improperly approved for a firearm transfer and then uses it in a crime. Accordingly, the law accomplishes nothing.

To be effective, the law should provide grants for states to create agencies whose sole responsibility is to be trained for and to review and update all records for state reporting agencies to ensure they are reflective of only items that establish that a person is restricted from possessing a firearm.

If states take this obligation seriously, they will also need to be provided with more complete records from courts and other agencies. For example, if expunction orders are properly reported, states need to ensure that the details of the expunction order are reviewed to determine if firearm restrictions were maintained or if all civil rights were restored. Many computerized reports only report the expunction.

Firearms Dealer or Not?

The law also attempts to clarify who qualifies as a firearm dealer and is therefore required to have a federal firearms license to sell guns. It strikes the old qualification of “with the principal objective of livelihood and profit” and inserts “to predominantly earn a profit.” This language will increase the number of individuals required to have a license because the person selling firearms no longer needs to have a “primary objective of livelihood” in dong so.

The law explains that the term “to predominantly earn a profit” means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection. However, the proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.

Thus, a person who purchases and sells firearms for criminal purposes or terrorism is required to obtain a federal firearms license even if they do not have a profit motive. Just like mass shooters are expected to obey the “no gun” signs, I’m sure these individuals will comply with the requirement.

gun store sales
 (AP Photo/Andrew Selsky)

In discussing the FFL requirement, most politicians ignore the other relevant provisions of the law. It’s still critical that the person “devotes time, attention, and labor to dealing in firearms as a regular course of trade or business…through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” (18 U.S.C. § 921.) (Contrary to President Obama, the sale of one firearm is not a “repetitive purchase and resale of firearms.)

NICS for Licensee Background Checks

FFLs will be able to use the NICS system to ensure their potential employees are not prohibited persons. Employers must provide notice and the employee must consent.

The Attorney General may not collect a fee for employment background checks. Employees can challenge the results, which will likely be often under the flawed NICS system. However, it’s likely better to have the matter cleared up prior to employment.

FFL Access to List of Stolen Firearms

The Attorney General shall provide FFLs “with information necessary to verify whether firearms offered for sale to such licensees have been stolen.” The law leaves it to the Attorney General to issue regulations as to how this will be achieved.

Once available, any purchaser will want to verify prior to purchase or receipt to avoid charges for receiving stolen property, or conspiring to do so.

Limits on ‘Operation Fast and Furious’ Type Operations

The Department of Justice and its agencies (which includes the ATF) “shall not conduct or otherwise facilitate the transfer of an operable firearm or ammunition to an individual if any law enforcement officer employed by the Department of Justice involved with the transfer knows or has reasonable cause to believe that the recipient of the firearm or ammunition is an agent of a drug cartel, unless law enforcement personnel of the United States continuously monitor or control the firearm or ammunition at all times.”

It’s unclear what, if any, penalty would result for a violation, but based on past experience the offending agents will be promoted and receive an increase in salary. After all, failure in government is usually rewarded.

Also, while the location of firearms and ammunition may be tracked across the border, is this sufficient “monitoring,” and, if so, they aren’t exactly retrievable from Mexican cartels.

As is clear from all of the above, the law that Congress just passed and President Biden signed into laws is imprecisely written dangerously vague. It leaves far too much interpretation up to the good judgement and efficiency operation of federal, state and local governments. And much of it seems ripe for challenge in the courts as to its constitutionality, particularly given the language of the Bruen decision. Unfortunately, that will take years and a lot of law-abiding gun owners will probably be victimized in the mean time.

 

Gary B. Wells is an attorney practicing in the areas of firearms law, estate planning and general business law. 



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