Thursday, April 11, 2013

Text To Manchin-Toomey Amendment Is Now Available

After the Senate adjourned this evening, Sen. Pat Toomey (R-PA) released the official language to the Public Safety and Second Amendment Rights Protection Act. This is the amendment that he and Sen. Joe Manchin (D-WV) will submit to Sen. Chuck Schumer's S. 649.

I've briefly scanned through it and have some preliminary observations.

First, the incentives to the states to provide more and better data to the NICS System looks to have been lifted in its entirety from Sec. 101 and 102 of Schumer's S. 374.

Second, if you offer to sell a firearm using any forum, gun board, Facebook, Gunbroker,com, etc. OR any classified ad in a newspaper or free trading post paper, you must do a background check. From Section 122
(B) pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm.
The bill does say offering to sell or exhibit your gun for sale in your private residence doesn't constitute a gun show. Still, if you offered to sell it first on the Internet and completed the sale at home, a check would be required.

Third, while the dealer can substitute a CCW or FOID card for the NICS check, it still has to be done by a licensed dealer and a Form 4473 must be completed. Moreover, if I'm reading it correctly, substitution of the CCW for the NICS check would only apply if the Feds have certified it is equivalent. I know there are many states where the a CCW is not accepted in lieu of a NICS check.

Fourth, under Sec. 129 - Rule of Construction it states:
Nothing in this subtitle, or an amendment made by this subtitle, shall be construed-
(1) to extend background check requirements to transfers other than those made at gun shows or on the curtilage thereof, or pursuant to an advertisement, posting, display, or other listing on the Internet or in a publication by the transferor of the intent of the transferor to transfer, or the transferee of the intent of the transferee to acquire, the firearm; or
(2) to extend background check requirements to temporary transfers for purposes including lawful hunting or sporting or to temporary possession of a firearm for purposes of examination or evaluation by a prospective transferee.
I would still worry about so-called temporary transfers for purposes other than hunting or sporting purposes between non-family members. If you loaned a friend who was separated from an abusive spouse a gun for self-protection, it might be dicey.

Finally, the only part of the bill I like is that it makes knowingly violating the prohibition against a national gun registry an offense with a 15 year prison term.

UPDATE: Sebastian has a much more thorough analysis of the amendment here. I would make sure to read the comments as they also contain a lot of analysis.

In general, it seems to be upon reflection that requiring background checks for private sales conducted or arranged at gun shows or through the Internet or a publication is just one step away from universal background checks. All it would take to make it so would another amendment to the bill. The gun prohibitionists could make the argument, and in this case I'd consider it valid, if you are going to require background checks for a gun sold through a posting on an electronic bulletin board, why not require it for posting a notice on a cork bulletin board at work.


  1. It is a bad bill and needs to die, period. Ever since Newtown my mantra has been not one more inch and I mean it.

  2. ACLU who have “serious concerns” about the bill. 1) Best practice controls on the records collected > to paraphrase “second step” towards creation of national registry. There are no “best practices” data security provisions included on how to treat the transaction records…which could certainly lead to data creep/abuse 2) Civil liberties issues esp. Sen. Boxer’s “school tiplines” wording.

    See, Chris Calabrese, ACLU, comments as per Daily Caller interview.

    If ACLU has concerns, there is enough probable reason to investigate their concerns to see if warranted.

    Regards – MW

  3. The fact that if I offer to sell a gun to my neighbor by talking to him over the fence is not regulated but if I have the same conversation on Facebook with him it would be is a chilling thought… The 1st amendment implications alone are bothersome let alone the 2nd amendment implications.

  4. Just a thought, if thats the wording, would it be a crime to advertize for "shooting buddies group", would it to be a crime to have 100 new friends? since you didn't mention a gun for sale? would it be breaking the law to have to many friends?

  5. The transaction was made before the new law. :)

    1. That only works if the gun you're selling either

      A. has no paper trail
      B. Was purchased by you before the new law passed.

      Otherwise you can claim it was done before then, but if the ATF traces it back to your FFL and sees that the date in his bound book is after the law passed you're in trouble.

    2. Without a national registry, this law essentially creates two inventories of guns. The vast majority – those in circulation before this legislation passes – can continue to be bought and sold in an “underground” market.

      That's why the obvious – and necessary – next step is a mandatory national registry. To solve the “problem” created by instituting “universal background checks.”

  6. I also have a problem in that many of the important things are not addressed. What is the specific definition of mentally inelligeable. This bill should be tested against the facts of Sandy Hook and Aurora,CO to see what if anything would have changed.

  7. So they HAVE expanded the checks to some private sales. They throw us a bone in the penalty for creating a registry, but really, how likely is it that it will be enforced? That's sorta the "fox guarding the chicken coop" thing.

  8. This amendment specifically bans regulations “placing a cap on the fee licensees may charge to facilitate transfers in accordance with paragraph” [see amended 18 USC § 922(t)(4)(D)]. There is also no mandate that licensees process private transfers. When combined with the general prohibition on most person-to-person transfers, these provisions mean that the U.S. gun market will effectively become a dealer-run cartel.

    Remember that FFLs are to conduct transfers under this amendment in accordance with the existing provisions of federal law. This means that, to an FFL, a transfer under this amendment is indistinguishable from a dealer inventory sale. And because the dealer can charge any amount whatsoever to facilitate the transfer, they will have the power to buy guns from sellers at whatever price the dealer market will bear, because there are no other legal buyers. Individuals can still “transfer” a gun between themselves, but they will be powerless to affect the economic or legal terms of the transfer.

    California anticipated this problem when they banned private sales many years ago. In California, dealers are prohibited by law from charging more than $10.00 to conduct private transfers. California dealers are also required to process private transfers as a condition of their state firearms dealer's permits. So at least terms and prices are still set by the private individual buyer and seller in California.

    This provision gives enormous power to federally licensed dealers. They become the one and only legal buyers of all firearms and gain cartel pricing power. Look for dealers to conduct private transfers in a manner that generates as much or more profit for the dealer as a sale directly from their inventory.

    No other outcome is economically — or legally — viable.

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