Commentary

Referendum Question 3 Goes Beyond a Background Check

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Supporters of Question 3 (to expand firearm background checks to private sales) continually repeat this key campaign talking point: “Question 3 on November’s ballot is simple, straight-forward and common sense. It requires a background check for all gun sales and transfers, with exceptions for family members, hunting and self-defense.”

Under scrutiny, that claim doesn’t stand up.

In 1993, Congress passed the Brady Act. As part of the Act, the FBI launched a new system in 1998 called the National Instant Background Check System to determine whether individuals seeking to receive or possess firearms were prohibited by law from doing so (felons, unlawful drug users, persons found to be mentally ill, etc.). As a result, federally licensed firearm dealers were required to submit the proposed purchaser’s or transferee’s name for an NICS background check before selling a gun. If the person passed the background check, the transaction could proceed immediately. Dealers were required to keep private the information about the purchaser provided on a federal document called a “4473.”

At the time, Congress determined it was impractical to impose that procedure on sales between private individuals, as it is nearly impossible to do surveillance on every person in this country buying or selling a gun.

Former New York Mayor Michael Bloomberg, whose “Everytown” group has funded almost 100 percent of the “Yes on 3” campaign and other background check initiatives like it across the country, is hijacking and vastly expanding that federal FBI NICS procedure with a new definition of “transfer,” much different than what it has been traditionally understood to mean. Under the proposed initiative language, Question 3 proponents have cleverly redefined “transfers” to mean any occurrence in which a person furnishes, gives, lends or otherwise provides, with or without “consideration” a firearm.

This potential massive new expansion of the application of the federal NICS background check extends the mandatory NICS check far beyond selling a firearm.

In addition, the proposed law requires that firearm dealers who agree to facilitate a sale or transfer under that section must “process the sale or transfer as though selling or transferring the firearm from its own inventory.”

What that means is every non-exempt firearm “transfer” in which gun owners have traditionally shared or loaned firearms, such as loaning a trusted friend a shotgun to go hunting or for target practice on private property, or for potential self-defense use, involves a form 4473, submitting to a NICS background check and paying the dealer’s fee.

If the law passes this is what loaning a firearm to a friend would look like:

First, you and a friend would have to meet at the premises of a federally licensed firearm dealer willing to conduct the “transfer.” The dealer would take the firearm you intend to loan, have your friend fill out a 4473 form, and call the NICS hotline. If your friend passes the check, the dealer would take the firearm into his inventory, complete the form 4473 and any other necessary paperwork, and charge a fee, likely between $30 and $50.

Seems simple, except that for all legal purposes your friend appears to be the owner of record, so in order to get your gun back, you should have a formal loan agreement, at an additional unknown cost.

That isn’t all.

In order to get your gun back (another “transfer”), you have to do the same thing in reverse — undergo the NICS check and pay another $30-$50. Estimated cost of loaning your gun to a friend: around $60-$100, plus the cost of a loan agreement.

Supporters of Question 3 say there are exemptions, except those are so narrowly written they cause more problems than they solve. For example the hunting exemption is only for when the lender and borrower are together and the hunting “activity is legal in all places where the transferee possesses the firearm.” There are a thousand different situations where this may cause a problem: legal hunting hours, posted land, buffers around farm buildings, and the like.

In addition, because the law creates a vast new area of potential criminal offenses, hunters risk encounters with law enforcement and potentially being charged with a class D crime, (first offense), punishable by a fine up to $2,000 and a year in jail; for a second offense, a class C felony, punishable by up to five years imprisonment and a $5,000 fine (and the loss of firearm rights forever under federal law). That, for an offense of simply handing a gun to another person who is not otherwise prohibited from firearm possession.

Question 3 is far from “common sense” or “simple.”

Those people who support background checks for firearm sales should ask their legislators to introduce a bill in the next session that truly and genuinely addresses such sales, but vote against Question 3. It goes way too far.

*This originally appeared in the Sun Journal

About David Trahan

David Trahan is the executive director of the Sportsman’s Alliance of Maine. He served in the Maine House of Representatives for four terms and the Maine Senate for two. He lives in Waldoboro.

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