David B. Rivkin Jr. and Andrew M. Grossman practice law in the Washington office of BakerHostetler. Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.
Those who support stricter gun control fear that the passage of time since the Dec. 14 shootings at Sandy Hook Elementary School will result in further watering-down of measures. They should not, however, discount the risk that attempts to shave a few weeks or months off the usual legislative process will result in bad laws, with unintended and lasting consequences.
While pro-gun forces may overstate the case against expanded background checks — they are not, for example, a prelude to disarming the citizenry — President Obama and his allies have understated the difficult legal questions posed by extending the background-check system to cover more sales and transfers.
Under current law, gun dealers hold a Federal Firearms License (FFL) and are required to conduct instant background checks before handing a firearm to a buyer. But transfers between people who are not regularly engaged in the business of dealing firearms fall outside this requirement. This includes most transfers among family members and friends as well as some sales at gun shows — the “gun show loophole.” (Whether or not a background check has been conducted, it is illegal to transfer a firearm to a person known to be ineligible or likely to use it in a crime.)
The bill by Senate Majority Leader Harry Reid (D) — which is still the baseline proposal in the Senate — would close the “loophole” by channeling nearly all transfers through an FFL holder. At the heart of the bill is a 1½-page-long definition of “transfer,” meant to exclude from coverage such exchanges as a parent giving a gun to a son or daughter or lending a rifle for a hunting trip. But the dense language creates a trap for the unwary, who could face substantial criminal penalties for mistakes such as shooting a deer one day out of season or going one over a hunting limit — either of which would transform a lawful transfer into an illegal one.
The Reid bill would give the attorney general the power to set the price that FFL holders would charge to oversee private transfers. Opponents rightly noted that nothing would stop the attorney general from ratcheting up the fee to discourage or even halt transfers. After all, being a political appointee, the attorney general could take the heat and simply opt to set a new baseline status quo for gun rights, without further involvement by Congress.
Rather than attempt to work out such issues through hearings and mark-ups, the idea of universal background checks was ditched in the “compromise” proposal by Sens. Pat Toomey (R-Pa.) and Joe Manchin (D-W.Va.), who more modestly extend background checks to reach gun-show sales and advertised private sales.
But here, too, the devil is in the details. Toomey-Manchin requires a background check for transfers “pursuant to an advertisement.” What does that mean? Would a listing on a church bulletin board or hunting club’s e-mail list qualify? Does it matter whether the buyer saw the advertisement? The answers to these questions matter because a mistake would render the transfer illegal and could lead to jail time.
Toomey-Manchin also tasks the attorney general with enacting regulations that define its specifics, which means potential sellers would probably consult the final legislation as well as the Code of Federal Regulations to steer clear of risks. At that point, of course, most people would do the transfer through a licensed dealer. The bill hints at this likely result by including a carve-out for transfers among certain family members — an exception that would be superfluous if the bill were expected to work as drafted.
Like the Reid bill, Toomey-Manchin imposes what amounts to a tax on many private transfers of firearms by requiring them to go through a dealer, who presumably would expect to be paid. It allows the market to set the price, but the rush to legislate has precluded attempts to evaluate this burden, whether it would vary by region or whether alternatives might prove less onerous.
There are also privacy concerns. Currently, background-check records must be destroyed within 24 hours, preventing that data from being used for other purposes. But the Reid bill and Toomey-Manchin make exceptions for private transfers, and the latter also eliminates standard privacy protections for mental-health records used in the background check system; the attorney general would be allowed to use them for any purpose.
Congress routinely includes sunset provisions when legislating in ways that may impact First Amendment or privacy rights, so lawmakers can recalibrate based on experience. Unfortunately, neither the Reid bill nor Toomey-Manchin include such provisions. So regulations that are too restrictive or ineffective will remain so — at least until there are 60 votes in the Senate and a president willing to reconsider.
Given the time and attention that they deserve, these issues could be addressed. But artificial deadlines and an undue sense of urgency guarantee worse results and continued mistrust on both sides of this debate.