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H.R. 58/S. 1691, The Firearms Interstate Commerce Reform Act

Friday, October 14, 2011

H.R. 58/S. 1691, introduced by Rep. Steve Scalise (R-La.) and Rep. Dan Boren (D-OK) in the House and by Sen. Orrin Hatch (R-Utah) and Sen. Mark Begich (D-Alaska) in the Senate, would remove several antiquated and unnecessary restrictions imposed on interstate firearms business since 1968:

• Virtually all interstate transfers directly between private citizens are banned; so are nearly all interstate handgun sales by licensed dealers.

• Firearms dealers may only do business at their licensed premises or (since 1986) at gun shows in their own state.

• Dealers may not even transfer firearms to one another face to face, away from their business premises.

These restrictions originated with the Gun Control Act of 1968, which only allowed licensed dealers to sell rifles and shotguns to residents of a different state under a lengthy series of conditions. First, the buyer`s state had to have a law allowing such transactions.1 Second, the transaction had to comply with the state law in both the buyer`s and seller`s states. Third, the dealer had to notify the chief law enforcement officer in the buyer`s state, and wait for evidence that the officer had received the notification. Finally, the dealer had to wait seven days after receiving the notice before completing the transfer.

These restrictions were supposed to prevent buyers from evading the few "background checks" available at the time, which were mostly carried out via state laws requiring local police chiefs to issue firearms permits.

In the 1980s, the Congress revisited these restrictions during the debate over the Firearms Owners` Protection Act (FOPA). As the Senate Judiciary Committee`s report on FOPA put it, the 1968 interstate sales provisions were "so cumbersome that they [were] rarely used."2 When the Congress passed FOPA in 1986, it did away with the state authorization, notification and waiting period requirements. Federal law now allows dealers to make interstate rifle and shotgun sales, as long as (a) the buyer meets in person with the dealer, and (b) the transaction complies with the laws of both the buyer`s and the seller`s states.3

Since 1998, however, all people buying firearms from dealers in the U.S. have been subject to computerized background checks under the FBI`s National Instant Criminal Background Check System (NICS), either by the dealer contacting NICS (directly or through a state "point of contact" agency) or by the buyer presenting a state firearms permit issued after a NICS check. Any of these systems are far more advanced than anything available in 1968.

H.R. 58/S. 1691 are common sense measures that would take advantage of these technological improvements to further reduce restrictions on law-abiding citizens. Under H.R. 58/S. 1691:

Individuals could buy handguns, as well as rifles or shotguns, from licensed dealers in another state, subject to the background check requirement. The buyer and dealer would still have to meet in person and comply with the laws of both states.

Example 1: A buyer from Texas visits a gun store in Oklahoma and wants to buy a handgun. Neither Texas nor Oklahoma have any special state permit or other purchase requirements; dealers in both states contact the FBI directly for NICS checks. The Oklahoma dealer could make the sale to the Texan exactly as he could to an Oklahoman, by contacting the FBI for a NICS check. (This is the same procedure an Oklahoma store would currently use to sell a long gun to a Texan.)

Example 2: A buyer from Nebraska visits a gun store in Wyoming and sees a handgun he wants to add to his collection. Nebraska requires a handgun buyer to have a "certificate" issued by his local sheriff or police chief after a background check. Wyoming has no state permit requirement, but the dealer still has to request a NICS check by contacting the FBI. Under H.R. 58, the dealer would have to make sure the buyer has the Nebraska certificate, and also contact NICS.

Dealers could engage in their business at gun shows in other states, but would have to comply with the laws in the state where the gun show takes place.

Example 3: A dealer from Arkansas exhibits at a gun show in Illinois. Illinois requires all gun buyers to present a Firearms Owners` ID (FOID) card, and requires all dealers to contact the Illinois State police to request a background check on the buyer. Illinois also has a 24-hour waiting period for long guns, and a 72-hour waiting period for handguns. Before transferring any firearm at the show, the Arkansas dealer would have to review the buyer`s FOID card, contact the Illinois State Police for the background check, and wait the appropriate period of time based on the type of gun involved.

Some state laws may be so complex that they would prevent interstate transactions. The 1984 committee report on FOPA recognized this problem, noting "where a dealer feels uncertain about the requirements of the law of the state of the purchaser`s residence, he may "decline to make a sale to such person."4 H.R. 58/S. 1691 does not override the laws of any state.

Finally, H.R. 58/S. 1691 would reduce theft and loss of firearms during shipment between dealers. BATFE`s longstanding interpretation of the Gun Control Act generally forbids licensed dealers from transferring firearms directly to other licensed dealers, face to face, away from their licensed premises.5 Even though the dealers have already had a thorough background check, under the current interpretation, dealers who agree on a sale are forced to return to their business premises and ship firearms to each other by common carrier, which always involves some risk of theft or loss. H.R. 58 would allow a face-to-face exchange instead.

1. At least 31 states passed such laws. Though the laws are now obsolete, 30 many are still on the books.

2. S. Rep. No. 98-583, at 10 (1984). There was no report on FOPA in 1986; the report is on an earlier version that included the same language.

3. 18 U.S.C. "922(b)(3." Dealers are presumed to have knowledge of state laws; the Bureau of Alcohol, Tobacco, Firearms and Explosives also provides dealers with an annual guidebook.

4. S. Rep. No. 98-583, at 11.

5. See, e.g., letter from Bradley A. Buckles, Director, Bureau of Alcohol, Tobacco and Firearms, to Rep. Jim Kolbe (Sept. 28, 2000). The only exception, due to a 1996 amendment to the Gun Control Act, is for "curios or relics" firearms "of special interest to collectors" due to their age, rarity, or historical importance. 18 U.S.C. "923(j); 27 C.F.R." 478.11.

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