By: Matthew Larosiere, FPC Director of Legal Policy and attorney
On September 18, 2019, a purported “idea” document reportedly being circulated among Republican senators and congressmen was leaked to the media. The document, entitled “Idea for New Unlicensed-Commercial-Sale Background Checks”, is both frighteningly vague and callous in its disregard for the Second and Fourth Amendments, as well as the federalist principles that animate the Commerce Clause.
The document suggests that “many commercial sales are conducted outside of FFLs without any background check or record-keeping requirements.” This is either incorrect or uses a definition of “commercial sale” beyond the scope of common understanding. Present law requires anyone “engaged in the business” of selling firearms to acquire a Federal Firearms License. Incidental, intrastate transactions between private individuals are regulated by the states.
This discussion of “commercial sales” not requiring a background check means the document is referring either to conduct that is already forbidden by federal law, or is referring to intrastate transactions between private individuals who are not “engaged in the business” of selling firearms.
The document proceeds that “[c]onsistent with the Manchin-Toomey draft legislation, a background-check requirement would be extended to all advertised commercial sales, including sales at gun shows.” It proceeds to explain that the background checks on these “advertised commercial sales,” of which the definition remains unclear, would be required, and have to be performed either by an FFL or a “newly-created class of licensed transfer agents.” Put simply, this new class of transfer agents would be FFLs who did not carry firearm inventory.
The “idea sheet” also suggests imposing recordkeeping requirements on sellers. Under the document, any seller who “does not want an FFL or transfer agent to retain a Form 4473” must maintain a “chain of title” with records of the sale, including the identities of all parties, as well as a certification from an FFL or transfer agent memorializing a successful background check. This type of recordkeeping has never been imposed on private individuals, and could not be Constitutionally imposed on intrastate private sales consistent with the Commerce Clause. The invocation of “chain of title” is also problematic, as it suggests a legitimate government interest in maintaining searchable records of all firearm transactions. In other words: a universal registry masquerading as a background check system.
Another novel, concerning issue posed by the document is a suggestion that, should a buyer fail a background check, a referral would immediately be made to law enforcement. This is hugely problematic given NICS’ notoriously prevalent false denials. (See, e.g., Alan Korwin, “Class Action for Wrongful NICS Denials Gaining Momentum,” AmmoLand (Dec. 21, 2017).) Increasing tense interactions between nonviolent gun owners and often overzealous law enforcement puts human life in jeopardy without public benefit.
In short, the “idea sheet” seems to impose the same losses to the right to keep and bear arms and privacy rights of the Manchin-Toomey bill without the benefit of relaxed interstate firearm transactions. Further, the suggestion is completely devoid of utility as it focuses solely on a class of firearm transactions that produce virtually no crime guns, completely ignoring that “straw purchases” through FFL dealers produce exponentially more crime guns, and the suggestion would have no impact whatsoever on that already-unlawful conduct.
For more on this issue, please see FPC’s Policy Memo on this subject at FPCPolicy.org. For more on “Universal Background Checks” generally please see FPC’s Policy Brief, “Universal Background Checks” & Burdening Access to Human Rights at FPCPolicy.org.