ddeanjohnson
autodidact
- Aug 21, 2010
- 801
There is a lot of confusion on this forum, and others, about what is currently happening in the U.S. Senate. Let me try to shed a little light.
(Some people may think that this post would be better placed in the National 2A Issues section, but with respect to the facets that I zero in on below, I think the main interest on the board is how the pending proposal would intersect with Maryland laws, including SB 281, which is currently set to go into effect on October 1.)
First of all: It is not true that the Senate invoked cloture on the main gun control bill, S. 649 (which tracks the language approved by the Senate Judiciary Committee on a party-line vote on March 12, under a different bill number). If that had occurred, the amendment process would never have really begun, and a vote on final passage of the bill would be near. But what the Senate actually did on April 11 was vote to end debate on whether to take up the bill (the "motion to proceed"), and thereby to begin the amendment process, which is an entirely different matter.
UPDATED APRIL 16, 10:45 PM EDT: According to press reports, the Senate is now scheduled to vote on the Manchin-Toomey Amendment (discussed below) on Wednesday, April 17, at 4:00 PM EDT. An agreement has been reached to immediately conduct roll call votes on eight additional amendments, Amendment No. 711 by Sen. John Cornyn (R-Tx.) to require some form of "national reciprocity," Amendment No. 719 by Sen. Dianne Feinstein (D-Ca.) to ban many semi-auto rifles, and Amendment No. 714 by Sen. Frank Lautenberg (D-NJ) to ban so-called "high-capacity" clips/magazines. Any of the nine amendments will be added to the base bill if it receives 60 votes; otherwise, it will be deemed rejected.
After the amendment process is over, the bill itself could still be filibustered, and if that occurred, 60 votes will be required to end debate and pass the bill. If that occurred, the bill would go to the House, which a number of different procedural options would be available to the majority leadership. So Manchin-Toomey and all the rest is all still a long way from becoming law.
The Manchin-Toomey Amendment, 49 pages long in the official printed version, covers quite a bit of ground. I am not going to try to describe all the provisions in this single post. For example, there are extensive provisions about getting state mental-health records into the federal system, how to deal with issues concerning veterans who have been classified as having mental health issues by the VA, and so forth. That is all important stuff. But for the moment, I'm just going to try to summarize here some key provisions that relate to transfers of firearms and background checks, since these may be of particular interest to some of the participants in this forum, particularly given the array of old and new restrictions that we already deal with in Maryland.
(I am not a lawyer, but this is not the first time I've read a statute. Obviously nothing below is "legal advice" -- we're not even talking about a law, just a legislative proposal on which a vote may will soon occur. There may be mistakes, imprecisions, or important omissions in what I have written -- part of the purpose of these discussions is to get the perspective of multiple analysts.)
PLEASE NOTE: If you wish to post a comment or question on the summary below, please DO NOT quote the entire lengthy summary! Kindly edit the quote so that you are quoting only the numbered paragraph, or a section of a numbered paragraph, to which your question or comment pertains. Also, this thread is intended for exploring what the Manchin-Toomey Amendment does or does not contain, with particular attention to how it would intersect with Maryland law -- not the goodness or badness of the entire enterprise. There are many other threads in which the origins and merits of the Manchin-Toomey Amendment and other aspects of the federal situation are under active discussion -- please take the value-judgment discussions to those threads, to the extent possible. Thank you.
Here it is -- the firearms transfer and background check provisions in Manchin-Toomey:
(1) Private transactions in firearms (between parties who do not have FFLs) would become subject to a federal background-check requirement if they occur "at a gun show or event, on the curtilage thereof; or . . .pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm." (Pages 21-22.) As far as I can tell, "publication" is not defined. The background checks would be run by FFL-dealers, who would be allowed to charge a fee for the service; the bill prohibits the ATF from placing a cap on the fee. (page 25.) Participation by any FFL-dealer is strictly optional. (Page 25.) If a buyer is cleared by a background check, the seller is immunized from liability if the gun is later used in a crime, to the same extent that a dealer is currently immunized by current law. (Page 25.) The FBI is told to prioritize background checks from gun shows. (Page 21.) For gun-show checks, if no definitive response is received within 48 hours, the sale may proceed (after four years, this would go to 24 hours). (Page 20.)
(2) The new requirement described in paragraph (1) above would apply even to transactions conducted between two residents of the same state, within their state of residence, with respect to both long guns and handguns, unless that state already enforces a comparable background check requirement. (Page 23.) This would be a substantial change in Maryland, where private transfers of "regular" rifles and shotguns currently do not require paperwork (as opposed to regulated "assault" long guns and handguns).
(3) Persons who hold the various classes of FFLs (including C&R) would be able to engage in purchases without repetitive background checks, under the same limited conditions and to the same degree that they can now. This is not the place to get into a detailed discussion of what the conditions and requirements are now -- suffice to say, I see nothing in Manchin-Toomey to change them.
(4) The amendment would clarify that FFL-dealers can acquire firearms face-to-face from other FFL-dealers while traveling out of state -- for example, at gun shows. (Page 31.) There has been some confusion on this point engendered by ATF in the past, even though federal statutes never prohibited such transfers, and my perception is that it often occurs.
(5) Contrary to reports on Fox News and CNN, there is nothing in the Manchin-Toomey Amendment (or in the underlying bill, S. 649) that would result in any state's carry permit being recognized, for handgun-carrying purposes, in any other state. The only provision in the Manchin-Toomey Amendment that relates directly to carry permits would allow an FFL-dealer to accept certain licenses, which would include most carry permits and some other types of licenses, in place of running the FBI background check for the gun-show and published-notice private transactions. (Page 22.) (According to press reports, other senators will later offer a different amendment to S. 649 that would require some sort of "national reciprocity" for at least some types of state carry permits. No such amendment has yet been filed, and no text is available, therefore it is impossible to have an informed discussion about how this might affect Maryland residents.)
(6) When an FFL-dealer does a background check for a private transfer at a gun show or pursuant to a published offering, he will keep a record of it in his "bound book" in the same manner as the guns he sells from his inventory. The bill contains various provisions to prohibit the Justice Department or its subordinate agencies, such as ATF, from compiling records of such transfers into a firearms registry. [Update, April 16: David Kopel, a lawyer, has published an essay in which he argues that the Manchin-Toomey Amendment "authorizes a national gun registry." On this point, I think his analysis is not persuasive, as I discuss here.] The amendment contains no federal restrictions on states setting up registration systems using their own background-check systems, as Maryland has done (nor is there any such restriction in current federal law, contrary to an urban legend which keeps cropping up on forums such as this, Wikipedia, etc.).
(7) There are exemptions from the proposed new background check requirements for transfers between various classes of persons, as follows: "between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins." (Page 23.) All such exempt transfers require that "the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law."
(8) No background check would be required for "temporary transfers for purposes including lawful hunting or sporting or to temporary possession of a firearm for purposes of examination or evaluation by a prospective transferee." (Page 36.)
(9) Current federal law allows FFL-dealers to sell rifles and shotguns over the counter (face to face) to residents of any state, if the laws of the FFL-seller's state and the buyer's state also allow this. Current Maryland law does allow Maryland residents to buy "regular" rifles and shotguns (as opposed to "regulated" long guns) in face-to-face transactions with FFL-dealers in any state. (I know that some people, including some dealers, will tell you that Maryland law allows this only in "contiguous" states, but that is a misunderstanding of current Maryland law, as the Maryland attorney general's office has confirmed.) The Manchin-Toomey Amendment would change the federal law to apply to handguns as well, meaning that the FFL-dealers would be allowed to sell a handgun, face to face, to a resident of another state, but only if it complies with the laws of both states. (Page 29.) I am doubtful that such out-of-state face-to-face purchase of handguns will be practical for Maryland residents, given the way that the Maryland law is set up with respect to handgun transfers -- the waiting period, the distinct state-conducted background check, and so forth. Even if that problem could be overcome, you would still need the Handgun Qualification License required by the impending new Maryland law (with the same exceptions as applicable in Maryland). In addition, the Handgun Roster, fired-shell casing, and "integrated lock" requirements would all have to be complied for any handgun for which any or all of those requirements would be applicable in Maryland. All of that would be a lot for any out-of-state FFL to deal with. So, my prediction would be that even if the Manchin-Toomey Amendment becomes law, it will still be difficult, if not impossible, for Maryland residents (other than those with federal firearms licenses) to buy handguns over-the-counter from dealers in other states.
(10) The current federal law (18 U.S.C. §926A) that protects the right to transport a firearm, unloaded and cased, when traveling across various state lines and jurisdictions, would be considerably expanded and clarified. Some jurisdictions have been reluctant to recognize the intent of the current law, and have construed it very narrowly -- there have been some egregious episodes particularly in New Jersey and New York. (Pages 33-36.) The proposed improvements, if enacted as part of the pending bill or in some other legislation, could be important to gunowners driving across Maryland with unloaded firearms, and to Maryland residents with unloaded firearms who are driving to or from destinations in other states. Update, April 16: David Kopel, an attorney, has posted an essay elsewhere in which he identifies some language in this section of the amendment which he thinks could result in travelers being arrested if they travel across states like Massachusetts. He doesn't mention Maryland but his argument, if valid, could apply to Maryland as well. I think that the language he is talking about is probably the product of defective draftsmanship and not a plot, but it should be taken note of and fixed if this section of the amendment moves forward in the legislative process. This issue is discussed further here.
(Some people may think that this post would be better placed in the National 2A Issues section, but with respect to the facets that I zero in on below, I think the main interest on the board is how the pending proposal would intersect with Maryland laws, including SB 281, which is currently set to go into effect on October 1.)
First of all: It is not true that the Senate invoked cloture on the main gun control bill, S. 649 (which tracks the language approved by the Senate Judiciary Committee on a party-line vote on March 12, under a different bill number). If that had occurred, the amendment process would never have really begun, and a vote on final passage of the bill would be near. But what the Senate actually did on April 11 was vote to end debate on whether to take up the bill (the "motion to proceed"), and thereby to begin the amendment process, which is an entirely different matter.
UPDATED APRIL 16, 10:45 PM EDT: According to press reports, the Senate is now scheduled to vote on the Manchin-Toomey Amendment (discussed below) on Wednesday, April 17, at 4:00 PM EDT. An agreement has been reached to immediately conduct roll call votes on eight additional amendments, Amendment No. 711 by Sen. John Cornyn (R-Tx.) to require some form of "national reciprocity," Amendment No. 719 by Sen. Dianne Feinstein (D-Ca.) to ban many semi-auto rifles, and Amendment No. 714 by Sen. Frank Lautenberg (D-NJ) to ban so-called "high-capacity" clips/magazines. Any of the nine amendments will be added to the base bill if it receives 60 votes; otherwise, it will be deemed rejected.
After the amendment process is over, the bill itself could still be filibustered, and if that occurred, 60 votes will be required to end debate and pass the bill. If that occurred, the bill would go to the House, which a number of different procedural options would be available to the majority leadership. So Manchin-Toomey and all the rest is all still a long way from becoming law.
The Manchin-Toomey Amendment, 49 pages long in the official printed version, covers quite a bit of ground. I am not going to try to describe all the provisions in this single post. For example, there are extensive provisions about getting state mental-health records into the federal system, how to deal with issues concerning veterans who have been classified as having mental health issues by the VA, and so forth. That is all important stuff. But for the moment, I'm just going to try to summarize here some key provisions that relate to transfers of firearms and background checks, since these may be of particular interest to some of the participants in this forum, particularly given the array of old and new restrictions that we already deal with in Maryland.
(I am not a lawyer, but this is not the first time I've read a statute. Obviously nothing below is "legal advice" -- we're not even talking about a law, just a legislative proposal on which a vote may will soon occur. There may be mistakes, imprecisions, or important omissions in what I have written -- part of the purpose of these discussions is to get the perspective of multiple analysts.)
PLEASE NOTE: If you wish to post a comment or question on the summary below, please DO NOT quote the entire lengthy summary! Kindly edit the quote so that you are quoting only the numbered paragraph, or a section of a numbered paragraph, to which your question or comment pertains. Also, this thread is intended for exploring what the Manchin-Toomey Amendment does or does not contain, with particular attention to how it would intersect with Maryland law -- not the goodness or badness of the entire enterprise. There are many other threads in which the origins and merits of the Manchin-Toomey Amendment and other aspects of the federal situation are under active discussion -- please take the value-judgment discussions to those threads, to the extent possible. Thank you.
Here it is -- the firearms transfer and background check provisions in Manchin-Toomey:
(1) Private transactions in firearms (between parties who do not have FFLs) would become subject to a federal background-check requirement if they occur "at a gun show or event, on the curtilage thereof; or . . .pursuant to an advertisement, posting, display or other listing on the Internet or in a publication by the transferor of his intent to transfer, or the transferee of his intent to acquire, the firearm." (Pages 21-22.) As far as I can tell, "publication" is not defined. The background checks would be run by FFL-dealers, who would be allowed to charge a fee for the service; the bill prohibits the ATF from placing a cap on the fee. (page 25.) Participation by any FFL-dealer is strictly optional. (Page 25.) If a buyer is cleared by a background check, the seller is immunized from liability if the gun is later used in a crime, to the same extent that a dealer is currently immunized by current law. (Page 25.) The FBI is told to prioritize background checks from gun shows. (Page 21.) For gun-show checks, if no definitive response is received within 48 hours, the sale may proceed (after four years, this would go to 24 hours). (Page 20.)
(2) The new requirement described in paragraph (1) above would apply even to transactions conducted between two residents of the same state, within their state of residence, with respect to both long guns and handguns, unless that state already enforces a comparable background check requirement. (Page 23.) This would be a substantial change in Maryland, where private transfers of "regular" rifles and shotguns currently do not require paperwork (as opposed to regulated "assault" long guns and handguns).
(3) Persons who hold the various classes of FFLs (including C&R) would be able to engage in purchases without repetitive background checks, under the same limited conditions and to the same degree that they can now. This is not the place to get into a detailed discussion of what the conditions and requirements are now -- suffice to say, I see nothing in Manchin-Toomey to change them.
(4) The amendment would clarify that FFL-dealers can acquire firearms face-to-face from other FFL-dealers while traveling out of state -- for example, at gun shows. (Page 31.) There has been some confusion on this point engendered by ATF in the past, even though federal statutes never prohibited such transfers, and my perception is that it often occurs.
(5) Contrary to reports on Fox News and CNN, there is nothing in the Manchin-Toomey Amendment (or in the underlying bill, S. 649) that would result in any state's carry permit being recognized, for handgun-carrying purposes, in any other state. The only provision in the Manchin-Toomey Amendment that relates directly to carry permits would allow an FFL-dealer to accept certain licenses, which would include most carry permits and some other types of licenses, in place of running the FBI background check for the gun-show and published-notice private transactions. (Page 22.) (According to press reports, other senators will later offer a different amendment to S. 649 that would require some sort of "national reciprocity" for at least some types of state carry permits. No such amendment has yet been filed, and no text is available, therefore it is impossible to have an informed discussion about how this might affect Maryland residents.)
(6) When an FFL-dealer does a background check for a private transfer at a gun show or pursuant to a published offering, he will keep a record of it in his "bound book" in the same manner as the guns he sells from his inventory. The bill contains various provisions to prohibit the Justice Department or its subordinate agencies, such as ATF, from compiling records of such transfers into a firearms registry. [Update, April 16: David Kopel, a lawyer, has published an essay in which he argues that the Manchin-Toomey Amendment "authorizes a national gun registry." On this point, I think his analysis is not persuasive, as I discuss here.] The amendment contains no federal restrictions on states setting up registration systems using their own background-check systems, as Maryland has done (nor is there any such restriction in current federal law, contrary to an urban legend which keeps cropping up on forums such as this, Wikipedia, etc.).
(7) There are exemptions from the proposed new background check requirements for transfers between various classes of persons, as follows: "between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins." (Page 23.) All such exempt transfers require that "the transferor does not know or have reasonable cause to believe that the transferee is prohibited from receiving or possessing a firearm under Federal, State, or local law."
(8) No background check would be required for "temporary transfers for purposes including lawful hunting or sporting or to temporary possession of a firearm for purposes of examination or evaluation by a prospective transferee." (Page 36.)
(9) Current federal law allows FFL-dealers to sell rifles and shotguns over the counter (face to face) to residents of any state, if the laws of the FFL-seller's state and the buyer's state also allow this. Current Maryland law does allow Maryland residents to buy "regular" rifles and shotguns (as opposed to "regulated" long guns) in face-to-face transactions with FFL-dealers in any state. (I know that some people, including some dealers, will tell you that Maryland law allows this only in "contiguous" states, but that is a misunderstanding of current Maryland law, as the Maryland attorney general's office has confirmed.) The Manchin-Toomey Amendment would change the federal law to apply to handguns as well, meaning that the FFL-dealers would be allowed to sell a handgun, face to face, to a resident of another state, but only if it complies with the laws of both states. (Page 29.) I am doubtful that such out-of-state face-to-face purchase of handguns will be practical for Maryland residents, given the way that the Maryland law is set up with respect to handgun transfers -- the waiting period, the distinct state-conducted background check, and so forth. Even if that problem could be overcome, you would still need the Handgun Qualification License required by the impending new Maryland law (with the same exceptions as applicable in Maryland). In addition, the Handgun Roster, fired-shell casing, and "integrated lock" requirements would all have to be complied for any handgun for which any or all of those requirements would be applicable in Maryland. All of that would be a lot for any out-of-state FFL to deal with. So, my prediction would be that even if the Manchin-Toomey Amendment becomes law, it will still be difficult, if not impossible, for Maryland residents (other than those with federal firearms licenses) to buy handguns over-the-counter from dealers in other states.
(10) The current federal law (18 U.S.C. §926A) that protects the right to transport a firearm, unloaded and cased, when traveling across various state lines and jurisdictions, would be considerably expanded and clarified. Some jurisdictions have been reluctant to recognize the intent of the current law, and have construed it very narrowly -- there have been some egregious episodes particularly in New Jersey and New York. (Pages 33-36.) The proposed improvements, if enacted as part of the pending bill or in some other legislation, could be important to gunowners driving across Maryland with unloaded firearms, and to Maryland residents with unloaded firearms who are driving to or from destinations in other states. Update, April 16: David Kopel, an attorney, has posted an essay elsewhere in which he identifies some language in this section of the amendment which he thinks could result in travelers being arrested if they travel across states like Massachusetts. He doesn't mention Maryland but his argument, if valid, could apply to Maryland as well. I think that the language he is talking about is probably the product of defective draftsmanship and not a plot, but it should be taken note of and fixed if this section of the amendment moves forward in the legislative process. This issue is discussed further here.
Last edited:
