Senator Kamala Harris (D – CA, as if that needs to be said) apparently feels free to be moronical. First, she has said that she is receptive to restoring the Boston Marathon bomber’s voting rights (she’s joined in this with that other illustrious light of reason, Bernie Sanders, although she’s since tried walking this back). Now, she’s touting her plan for executive orders related to firearms which she would implement if she were to be elected president. Presumably these executive orders would be issued right after the delivery of snow cones from the netherworld.
Harris’ proposed executive actions center around the following areas:
1.Definition of a Firearms Dealer
She proposes defining people who sell more than 5 firearms a year as “dealers” who must then obtain a license (presumably a Federal Firearms License or FFL). Some news outlets are erroneously reporting this, however, as “she would unilaterally mandate background checks for customers purchasing a firearm from any dealer who sells more than five guns a year” (article). This is a misunderstanding of current law, though, as dealers (i.e. those who have FFLs) are already required to conduct background checks on all purchases, except (in some states) those who have a concealed carry license, since these people have already had background checks conducted by the state in order to obtain their license.
The problem with Harris’ proposal is that defining dealers based on quantity of firearms sold could snag regular gun owners who are clearing out a collection or who tend to buy a firearm, use it for a while, then sell it to purchase something else. Not everyone who sells more than 5 firearms a year is in the businessof selling firearms. In fact, the ATF has a handy guide on how to buy and sell firearms and the criteria that is used to determine if someone is a dealer; i.e. if they are in the firearm selling business. There are a number of factors, but they state, “As a general rule, you will need a license if you repetitively buy and sell firearms with the principal motive of making a profit. In contrast, if you only make occasional sales of firearms from your personal collection, you do not need to be licensed.”
2. Internet Transactions
A CNN article, referencing material from the Brady Campaign (an anti Second Amendment group), states, “… as the Internet came of age, private sellers increasingly turned to the web and were not required to conduct background checks under the law.” This is a misrepresentation or misunderstanding of the law. FFLs (i.e. licensed dealers) are required to conduct background checks regardless of where they sell the firearm; i.e. in a store, on the internet, or at a gun show. For internet purchases, the selling FFL will ship the firearm to a receiving FFL chosen by the buyer; the receiving FFL will then conduct the background check on the buyer (this is often called an “FFL transfer” or simply “transfer”). Private sellers who sell to a buyer in another state follow a similar procedure; i.e. ship the firearm to an FFL dealer chosen by the buyer so that a background check can occur. Private sellers who sell to a buyer in their same state can, in most states, sell without a background check (although many sellers will stipulate that the buyer must either have a concealed carry license or agree to do the transfer through an FFL so a check can occur).
Harris also wants to prevent fugitives from justice from purchasing a firearm. This is a laudable goal, as fugitives are actually already “prohibited persons.” ATF Form 4473 (filled out when purchasing a firearm from an FFL) defines a fugitive as “Any person who has fled from any State to avoid prosecution for a felony or a misdemeanor; or any person who leaves the State to avoid giving testimony in any criminal proceeding. The term also includes any person who knows that misdemeanor or felony charges are pending against such person and who leaves the State of prosecution.” Harris’ proposal would include anyone with a warrant in the class of “fugitive,” not just those who have crossed state lines. However, question 11.b on Form 4473 seems to already include such persons. According to the ATF’s clarification on question 11.b: “Furthermore, section 922(n) prohibits the shipment, transportation, or receipt in or affecting interstate commerce of a firearm by one who is under indictment or information for a felony in any Federal, State or local court, or any other crime, punishable by imprisonment for a term exceeding one year. An information is a formal accusation of a crime verified by a prosecutor.”
4. Dating Partners
Harris also wants to include boyfriends and/or girlfriends as relationships subject to domestic violence prohibitions. That is to say, under the current law, people subject to restraining orders related to an “intimate partner” are prohibited from purchasing a firearm (Form 4473, definition for question 11.h). An “intimate partner” is defined as “the spouse or former spouse of the person, the parent of a child of the person, or an individual who cohabitates or has cohabitated with the person.” Harris’ proposal would including people who have dated, but not cohabited, in this definition. The utility of this inclusion is debatable, but it seems ripe for abuse; how does one prove or disprove a dating relationship? The other relationships are easy to prove a connection with either a marriage license, divorce decree, child custody agreement, or utility bill. How does a person keep someone they either casually dated or don’t even know from claiming a relationship with them in order to disenfranchise their Second Amendment rights?
In the end, executive actions and laws have little effect on criminals. In fact, in many previous firearms-related cases, the issue has been that prohibited persons were able to obtain firearms, despite undergoing a background check, because the federal NICS system was not updated with the information which would cause the person to fail the background check. Rather than pass new, unenforced laws, more effort should be placed on enforcing the existing laws.