CRPA Jan-Feb 2016

How Everytown’s
BACKGROUND
CHECK LAW
Impedes Firearms Safety
Training & Self-Defense Originally published by The Washington Post: www.washingtonpost.com
by David Kopel
Today, many gun control advocates are pushing for
what they call universal background checks. In this
and future articles, I will explain the strange system of
“universal background checks” being promoted by Michael
Bloomberg’s Everytown for Gun Safety lobby. These laws
severely obstruct ordinary activities that do not involve gun
sales, such as self-defense and firearms safety training.
Laws based on the Bloomberg system have been enacted
in Colorado, Oregon and Washington. They will be on the
ballot in 2016 in Nevada, and perhaps in Maine. A similar law
(Fix Gun Checks Act, S. 374) has been repeatedly proposed
federally by Sen. Charles Schumer (D-N.Y.)
The Bloomberg system applies to every firearms
“transfer.” In normal firearms law, a “transfer” means “a
permanent exchange of title or possession and does not include
gratuitous temporary exchanges or loans.” Chow
v. State. 393 Md. 431, 473, 903 A.2d 388, 413 (2006).
However, the Bloomberg laws create a very different
definition. For example, the Washington state law says that “
‘Transfer’ means the intended delivery of a firearm to another
person without consideration of payment or promise of payment
including, but not limited to, gifts and loans.” Rev. Code
Wash. § 9.41.010(25). In other words, it applies to sharing a
gun while target shooting on one’s own property, or to lending
a gun to a neighbor for a weekend hunting trip.
Under the Bloomberg system, transfers may take place
only at a gun store. The transfer must be conducted exactly as
if the retailer were selling a firearm out of her inventory. So
the transferee (the neighbor borrowing the hunting gun) must
fill out ATF Form 4473; the retailer must contact the FBI or
its state counterpart for a background check on the transferee;
and then, the retailer must take custody of the gun and record
the acquisition in her Acquisition and Disposition book. Finally,
the retailer hands the gun to the transferee and records
the disposition in her Acquisition and Disposition book. A
few days later, after the hunting trip is over, the process must
be repeated for the neighbor to return the gun to the owner;
this time, the owner will be the “transferee,” who will fill out
Form 4473 and undergo the background check.
SELF-DEFENSE
How does this affect the Second Amendment’s “core
lawful purpose of self-defense”? (D.C. v. Heller, 554 U.S.
570, 630 (2008)). Under the Bloomberg federal model, there
is no allowance for lending a firearm to a citizen in case of
emergency. S. 374, § 202(2) (exceptions only for family gifts,
inheritances, transfers in the home, and for “hunting or sporting
purposes” with various limitations).
Under the proposed Nevada initiative, a firearm may be
lent if the loan is “necessary to prevent imminent death or
great bodily harm” and the loan “lasts only so long as immediately
necessary to prevent such imminent death or great
bodily harm.” Whatever “imminent” means, the loan is allowed
only as long as “immediately necessary.”
This is a narrow exemption. If people in a house were attacked
by rioters, it would allow the sharing of all arms within
the house. But it would not allow for a much more common
self-defense situation: A former domestic partner is threatening
a woman and her children. An attack might come in the
next hour, or the next month, or never. The victim and her
children cannot know. Because the attack is uncertain — and
is certainly not “immediate” — the woman cannot borrow a
defensive handgun from a neighbor. Many domestic violence
victims do not have several hundred spare dollars so that they
can buy their own gun as soon as they find out about the threat.
SAFETY TRAINING
Sensible firearms policy should encourage, not impede,
safety instruction. The Bloomberg laws do just the opposite.
They do so by making ordinary safety training impossible unless
it takes place at a corporate target range. (The federal
S. 374 allows transfers “at a shooting range located in or on
premises owned or occupied by a duly incorporated organization
organized for conservation purposes or to foster proficiency
in firearms.”)
A target range is usually necessary for the component of
some safety courses that includes “live fire” — in which students
fire guns at a range under the supervision of an instructor.
However, even the courses that have live fire also have an extensive
classroom component. Some introductory courses are
classroom-only. In the classroom, dozens of firearms transfers
will take place. Many students may not yet own a firearm;
even if a student does own a firearm, many instructors choose
to allow only their own personal firearms in the classroom, as
the instructor may want to teach particular facts about particular
types of firearms. The instructor also wants to use firearms
that he or she is certain are in good working order. In any classroom
setting, functional ammunition is absolutely forbidden.
In the classroom, students are taught how to handle guns
safely. Some safety skills can be taught with inert, plastic replicas
— for example, the lesson that a person should always
keep a gun pointed in a safe direction, or that a person should
keep her finger off the trigger until a gun is on target. Learning
other safety skills, though, requires using a real gun. For
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