On Tuesday, Sen. Tim Kaine (D-Va.) introduced what he is calling the “Responsible Transfer of Firearms Act.” As The Hill amusingly noted, “It is the latest gun bill introduced by Democrats that is unlikely to pass through a Republican-controlled Congress.” And with good reason. Sen. Kaine’s current anti-gun effort is incomprehensible and unconstitutional. And that, unfortunately, is not a laughing matter.
Current law prohibits transferring a firearm to a person “knowing or having reasonable cause to believe” that the person falls into one of the federally prohibited categories. Appropriately, the prosecution has to prove the transferor knew or had reason to know of the recipient’s prohibited status. The law, of course, does not presume that everyone who seeks to acquire a firearm has a criminal record or intends to use the firearm for a criminal purpose, nor does it require those who transfer firearms to make this presumption.
Under Sen. Kaine’s bill, however, a person would be held strictly liable for transferring a firearm to a prohibited person, unless he or she could somehow demonstrate having “taken reasonable steps to determine that the recipient [was] not legally barred from possessing firearms or ammunition ….” Just what those steps are, however, is not specified in the bill. Thus, a person would be risking a federal felony with every firearm transfer, unless he or she adhered to an unwritten code of conduct that could shift with every circumstance.
Sen. Kaine is presumably aware that all dealers are already federally required to run background checks for retail sales. Nevertheless, according to The Hill, “Kaine blamed loose gun laws for allowing firearms dealers to sell guns to people who are prohibited from owning them.”
Apparently, then, Kaine contemplates some further duty to which gun dealers would be held accountable, even for customers who pass the mandatory background checks. But what is it? Is he suggesting, for example, that dealers profile their customers on the basis of race, age, sex, religion, appearance, or some other characteristic? Would the sales of certain types of firearms require more due diligence than others?
Similarly, the bill does not explicitly make background checks mandatory for all private sales, but conversely, even obtaining a background check before such a transfer might not be enough, at least in some cases. Gaps in the background check system itself could be the bases for criminal liability under the bill, should the transferor rely on a faulty “proceed,” rather than on some unknown cue an antigun official later determined should have been discernible.
Ultimately, the bill seems designed to do nothing so much as to scare people from transferring firearms to anybody with whom they are not very closely associated. Hidden facts about long-term neighbors – a long ago commitment for an eating disorder, for example – could spell the difference between an innocent act and a federal felony. Importantly, the penalty would attach, whether or not the recipient of the firearm ever did anything harmful or illegal with it.
Of course, nothing in the bill would discourage criminals from transferring firearms to each other, as they routinely do already in complete defiance of existing law. Indeed, we recently reported on a study out of Chicago that found persons in jail who had illegally possessed a firearm most often said they obtained it from trusted family members or associates. They weren’t willing to risk law enforcement stings by obtaining guns from people they didn’t know. Nothing about Sen. Kaine’s bill would change any of that.
As The Hill notes, the bill is likely to go nowhere in the current Congress. Even if it did, it would fail the constitutional requirement that the law adequately apprise the public of what sort of actions are prohibited.
Yet Sen. Kaine’s effort well illustrates the increasingly radicalized gun control lobby, to which “niceties” like constitutionality and fundamental fairness are irrelevant. Sen. Kaine simply wants to identify himself as being in league with the president and high dollar political donors on gun control. On that point, at least, we’re happy to help him spread the message.