The U.S. Congress is now on the cusp of passing a horribly unconstitutional law. It is designated H.R. 8 in the House  and S.42 in the Senate . These bills would criminalize the American tradition of private party sales, trades, and gifts of firearms. It would become a felony crime to transfer any post-1898 firearm without first visiting a Federal Firearms License (FFL) holder to fill out an ATF Form 4473, paying a transfer fee, and having that FFL phone the FBI to conduct a background check on the transferee. Without a “Yes you may” response from the ‘Mother May I?” Nanny State, it will be illegal to buy a gun, even from your next door neighbor.
EupHemistic Buzz Phrases
The mainstream media has been ceaselessly parroting the Brady Campaign  buzz phrases: “Universal background checks”, “Common sense gun laws” and “Closing the gun show loophole”. They don’t dare accurately refer to this bill as a “private party gun sales ban.” Instead, by using their soft sounding buzz phrases, they have horribly duped the American populace. Polls now show that 90% of our countrymen support the legislatio n. Of course, as with all polls, it all depends on the polling universe selected, and how a poll question if worded. The result of asking: “Do you support Universal Background Checks?” is substantially different than if they had asked: “Do you support banning the private sale of guns inside your state?”
H.R. 8 / S.42 would have wide-reaching effects and most likely some unintended consequences. If nothing else it will essentially destroy gun shows, as we now know them. In essence, every gun show in every state will be reduced to the level of a New Jersey gun show. To wit: You can look at guns, but can’t buy them, unless the seller visits a willing licensed dealer, hands the dealer the gun, you then pay a fee (unspecified and unlimited in the law) for the privilege of the transfer, you fill out sworn Federal paperwork, you provide current government-issued identification, and you pass a phoned-in background check call to the FBI. Then, and only then, can you take the gun home. Skipping any step of this process would be a felony.
Very Few ExEMPTions
Based on my reading of the bill and associated federal statutes, the only exemptions from the private transfer ban would be:
- Any transfer of pre-1899 antique guns. (Not considered “firearms” per Title 18 U.S. Code.)
- 80% complete receivers. (Not considered “firearms” per Title 18 U.S. Code.)
- Official duty-related transfers to military service members, police officers, and security guards.
- Gifts of modern (1899 and later) guns within immediate families
- For executors of wills or trusts.
- Very short term loans of guns while hunting or target shooting while you are present.
- Very short term loans of guns to prevent imminent death or bodily injury.
The legislative juggernaut orchestrated by Representative Nancy Pelosi and Senator Chuck Schumer is now rolling along at high speed. H.R. 8 is being rushed through committee, for a short debate and a vote on the House floor. On February 13th, it passed out of the House Judiciary Committee today on a vote of 23 to 15. Now, a simple majority of 218 votes is needed for passage. Alarmingly, the bill already has 231 co-sponsors, including five Republicans. Thus, passage in the House is almost certain. But the Senate version can be stopped if sufficient pressure is applied by constituents.
As I’ve mentioned before in SurvivalBlog, there are many flaws in H.R. 8 / S.42. First and foremost is of course that it is a gross violation of the 2nd Amendment. Our right to keep and bear arms also implies the right to acquire them without hindrance. Something as simple as a glitch in the telephone system or in the FBI’s computer database could deprive us of a fundamental right. Next, the pending bills are an unconstitutional expansion of congressional power specified in teh Commerce Clause of Article 1, Section 8 of the Constitution. Therein, congress is granted oversight of interstate commerce. But the sale of firearms between two private parties living in the confines of the same state is clearly intrastate commerce. (Not interstate!) This simply is not within federal jurisdiction.
H.R. 8 / S.42 would create a modification of existing Federal gun laws, codified in Title 18, U.S. Code. The authority for all of Title 18 USC is based on the Commerce Clause in Article 1, Section 8 of the Constitution. Thus, passing this law, congress would certainly be exceeding their authority. And therefore, by extension, they would be creating a law that is null and void, ab initio . An unconstitutionally bad law is not really a law. “Lex Mala, Lex Nulla!”
A Bitter Irony
Many unconstitutional laws are eventually struck down by the courts, but until they are, we have to live with them, under the shadow of their penalties. In this case the penalty is a federal felony conviction with prison terms of up to 10 years , lifetime loss of voting rights, and lifetime loss of all firearms rights. The bitter irony of this legislation is that by exercising a right that predates even the Constitution itself, you could face the penalty of complete loss of your right to own any gun.
The new law also has implications for 4th Amendment and 5th Amendment rights. Taking what was formerly a private transaction and making it a privilege that is catalogued in permanent FFL paperwork is a violation of our 4th Amendment right to privacy. And forcing all gun buyers to answer a long series of Yes or No questions and then signing their name, under penalty of perjury, compromises our 5th Amendment right to be free from self-incrimination.
Even though these bills give lip service to not forming a gun registration database, the net effect in the long term will be de facto registration, Why? Because completed Form 4473s must be kept on file permanently by licensed dealers. And when any dealer eventually goes out of business, by law, all of their records are sent to a permanent repository at the ATF’s Out Of Business Records Center . And those records are gradually being OCR scanned and hence are traceable.
The New Law, in Real Life
The changes in Federal law that H.R. 8 / S.42 will create will have some unanticipated drama for what are presently almost universally recognized as purely innocent acts and “the way things have always been” in our country. Here are some examples of how life will be after the new federal law goes into effect:
- For $250, you buy the entire contents of a local storage unit that was in arrears on its rental fees. You take many of the un-opened boxes home to sort through them. A few days later you find that there is a Glock 9mm pistol in amongst the clothes, shoes, books, tools, and Beanie Babies. Now you are an unconvicted felon.
- An elderly widow in your neighborhood asks you “what to do” about her late husband’s deer rifle and shotgun. You visit her and she offers you the pair of them to you for $300. You pay her cash and take them home. Now you are an unconvicted felon.
- You go hunting with some friends. One of them needs a shotgun to use. You lend him your spare Remington 870. He is grateful. You begin your hunt, but you are called home, for an emergency. Now you are an unconvicted felon.
- An ad in the local Penny Saver newspaper catches your eye: An antique Winchester Model 1894. You visit the seller’s home, to see the gun. The seller says that he is “pretty sure” that the rifle was made before 1899. You like it, so you pay him and take it home. After getting home you look up the serial number range. It turns out that it was made in 1901. Now you are an unconvicted felon.
- Your father offers to trade deer rifles, since he knows that you’ve want a pre-’64 Model 70. You trade him your nearly identical post-’64 rifle. To make up for the difference in value, you also give him $100. Now you are an unconvicted felon.
- Uncle Bob–your elderly great uncle who lives in a nearby town–gives you his Hi-Standard H-B .22 target pistol as a Christmas gift. Now you are an unconvicted felon.
- At a local gun show and buy a big box of assorted AR-15 parts. It is marked “$600 for all.” Since you can see that the box contains two complete uppers, extra furniture, and dozens of small parts, and a scope on a Picatinny mount, you think it is good deal. You pay cash. After you get home, you go through the box in detail and find a stripped AR-15 lower receiver wrapped up in a cloth. Now you are an unconvicted felon.
- You are paid to clean out a house that had belonged to a now deceased hoarder. You are told that you can keep what you want and haul the rest to the dump. In one of the closets, you find a Mossberg 500 shotgun. It has a lot of wear and some pitting. But you decide to take it home to refinish the stock yourself, and pay a gunsmith to re-blue it. Now you are an unconvicted felon.
- A friend of yours gets busted for Marijuana possession. He asks his wife to give you his S&W Model 659 pistol, because he can no longer legally own it. He says: “I just want to get it out of my house.” Now you are an unconvicted felon.
- The local chapter of Ducks Unlimited holds an annual fundraising dinner. You win a Door Prize of a shotgun. You take it home without filling out a Form 4473 or a background check. Now you are an unconvicted felon.
- While out metal detecting, you find a rusty old Savage .32 ACP pistol. You take it home to clean it up. Now you are an unconvicted felon.
- Your brother will soon be married and is short on cash to buy a wedding ring. He sells you his spare scoped deer rifle. You hand him your personal check for $700. Now you are an unconvicted felon.
Do any of those sound plausible or even vaguely like your own experiences? The way that S.42 is written, the foregoing would all be federal felony crimes.
Please contact both of your U.S. Senators and remind them that they took an oath to uphold and defend the Constitution. Voting for passage of this bill would be spitting in the face of our Founding Fathers. If this bill passes, our precious American Liberty will be in Deep Schumer. Oh, and if it does pass, I predict that the national legislators will give the final vote tally thunderous applause .
After possible passage in the Senate, our only hope will be a Presidential veto. At that stage, we will need to absolutely jam the White House switchboard with calls, voicemails, FAXes, and e-mails, 24 hours a day.
Although I’m doing my very best to fight passage of the private gun sales ban bills, I’m a realist. I recognize that Congress goes off the deep end with gun restrictions once in a while. They clearly did so in 1934, 1968, 1986, and 1994. Will 2019 be next? Perhaps. Plan A is stopping enactment. Plan B is mitigating its effects.
If this bad bill does become law, then be ready: We will probably have only 180 days before it goes fully into effect. This will create a six month window of opportunity for those of us living in any of the 41 still free States (with private party sales) to gather up as many un-papered guns as possible, for our families. So start drafting your shopping list, now. Build that list with your children, grandchildren, and even great-grandchilden in mind. Start checking gun show calendars for your state. During the purchasing window of opportunity, stock up on as many up-papered black rifles as you can afford. Stack them deep. And once the window closes, then shift to buying pre-1899 cartridge guns  that are in common (still factory made) chamberings. Those are bound to go up in price dramatically, once people realize that these will be our last bastion of firearms purchasing privacy. – JWR