The House quietly passed two bills on March 11 that would change the way guns are bought and sold in the U.S. The two bills, H.R.8, and H.R.1446, "would transform the constitutionally protected right to obtain firearms into a privilege administered at the whim of anti-gun bureaucrats," according to NRA-ILA (the NRA Institute for Legal Action).
A statement by Jason Ouimet, executive director of the NRA-ILA, on Thursday summarizes the consequences of the bills should they pass in the Senate:
"These bills are a transparent attempt by gun control advocates in Congress to restrict the rights of law-abiding Americans under the guise of addressing the violent criminal culture in America. The truth, however, is that neither of these bills will do anything to solve that problem. By giving full power to unelected government bureaucrats to indefinitely delay and prevent lawful firearm transfers, H.R. 1446 could ultimately destroy the Second Amendment rights guaranteed to every law-abiding American by turning it into a privilege enjoyed by a select few. H.R. 8, so-called “universal” background checks, cannot be enforced without a federal gun registry, will not prevent crime, and will turn otherwise law-abiding citizens into criminals for simply loaning a firearm to friends or family members. If Congress is serious about the safety of law-abiding citizens, it should have passed concealed carry reciprocity so that Americans can safeguard themselves and their families across state lines and throughout our country during these dangerous times."
" H.R. 1446, sponsored by South Carolina Democrat, James Clyburn, "strengthens" background checks procedures "to be followed before a Federal firearms licensee may transfer a firearm to a person who is not such a licensee." Effectively, this means that it will "eliminate the automatic three day default transfer period for dealer sales."
Regulation of firearms is currently enforced through a network of licensed dealers (Federal Firearms License or FFLs) making commercial sales. So anyone who makes it their business to buy and sell firearms must register as a licensed dealer. Failure to register is already a federal felony.
Legal Gun Dealers/Brian Rich/Sun-Times file
When buying a firearm, the FFL dealer will put the buyer through a series of computerized background checks that are run through the FBI database. The background checks search several national databases "to determine if a would-be buyer falls into any statutorily-defined category of 'prohibited persons,' which include such things as felons, people who have been committed to a mental institution, and illegal aliens." If no disqualifying record appears, the dealer proceeds with the sale. If, however, there are questions or the record is unclear, the check can take up to three business days, a default window of time that allows the FBI to vet the buyer.
When that three-day window is satisfied, the dealer can choose to proceed with the sale, and this is known as "a default transfer." The default window is a safeguard put in place to protect the buyer's Second Amendment rights so that no government entity can, at its whim, unnecessarily delay the sale of a lawfully purchased weapon. The bill would extend the initial background check review period from three to ten days—possibly longer if the FBI deems a longer review is necessary.
The NRA-ILA article on the bills explains, "As with any constitutional right, the burden is on the government to justify a restriction, which in the case of a background check means the FBI must be able to locate a disqualifying record before it blocks a sale. The three-day default transfer window ensures the government maintains the burden of proof, provides a specific timeframe to resolve incomplete checks, incentivizes the FBI to administer the system efficiently, and ensures legal transfers are not subject to extended delays." Without the default time period, the FBI can capriciously extend the approval window and potentially block the legal sale of firearms.
Additionally, private individuals can currently transfer/sell firearms to trusted buyers such as family or friends. They are not required to become FFL's, but they can elect to "process a private transfer using the services of an FFL, with the attendant background check and record-keeping required of the dealer for a commercial sale."
H.R. 8, sponsored by California Democrat Mike Thompson, would expand the Brady Background check, a system put in place that requires criminal background checks by the FBI when purchasing a gun through an FFL dealer. The Brady Background Check website outlines a specific and "comprehensive approach to preventing gun violence." The 12-point plan advocates significant changes in current gun laws.
There are limited exemptions for family in the H.R.8 House Bill. Guns can be loaned or gifted to certain family members, but if there is a payment or a trade of property, both parties must complete the exchange with a dealer's help. Such an exchange will involve all the fees and paperwork required by the licensed dealer.
Exemptions do not cover farming and ranching, sharing guns on almost all public and private lands, or storing guns with friends while on vacation. A 2019 analysis by Reason.com of such exemptions in the bill explains:
"For a farmer or rancher to lend a firearm to an employee, they both must travel to a gun store to process the transfer. When the employee returns the firearm, everyone must return again to the gun store. Because few farms and ranches are located near gun stores, the process typically requires hours of travel for the loan and hours more for the return. This takes the farmer, the rancher, and their hands away from the farm or ranch during what may be the busiest period of the year when everyone needs to work from sunup to sundown."
H.R. 8 also effectively prohibits young adults from acquiring handguns. Since H.R. 8 requires most sales to go through dealers, young adults under the age of 21 cannot buy firearms. Federal law prohibits licensed dealers from transferring handguns to persons under 21 years. Gun storage fees will also have no cap, with the potential to make it prohibitively expensive for some gun owners to own a gun.
In sum, H.R.8 means that most gun transfers must go through an FFL. So transferring a firearm, or in some cases, even sharing one, could constitute a federal felony—"unless you could show the situation fell into certain narrow and confusing exceptions. For example, you could loan someone a gun for self-defense, but only if the person was actually under attack at the time. You could not loan someone a firearm as a safeguard against danger that had not yet materialized."
These two bills effectively put the sale of firearms at the mercy of the federal government. The NRA-ILA maintains that these two laws "set the stage for a universal registry of gun owners and the transformation of the current 'shall-issue paradigm for FFL transfers to eligible buyers into a 'may-issue' system where the FBI can block sales on a case-by-case basis as they see fit."
Eight Republicans voted with the Democrats to pass these bills. Senator Majority Leader Schumer (D-NY) wants "quick action" on the bills in the Senate. The bills cannot be passed through reconciliation but must satisfy the 60-vote threshold necessary to overcome a Senate filibuster. The bills will likely get a hearing in the Senate sometime this week.