29 November 2019

Proposed Firearms Laws (Virginia): Criminal Background Checks

Okay, so I've been asked by several people to look at this. I don't usually look at bills because so few of them are passed into law and even those that do are often changed in the passing. Still, there's a lot of curiosity about this one, so I'm going to bend my rules a bit and look at the proposed bills (so far). From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). Yeah, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. That's why I generally don't do this. Still, once I got to looking there was a lot to discuss and I got intrigued.

Criminal Background checks: Four bills, SB12, SB18, SB70, and HB2, create a new statute that requires all persons transferring a firearm to another to get a background check on person receiving it: 18.2-308.2:5.  They were clearly all developed from a template with edits added by their patrons. Strangely, Senator Saslow felt it necessary to introduce this in two separate bills. Dealers can charge $15 to do the check. Under Sen. Saslow's version in the person transferring the firearm doesn't do the check he is guilty of a class 1 misdemeanor. In the other version the person transferring is guilty of a class 6 felony and the person receiving is guilty of a class 1 misdemeanor.

COMMENT: This last bit strikes me as contrary to logic. The receiving person knows he's a convicted felon; the transferring person does not. Thus the receiving person has a more guilty mens rea and an equal actus rea. I do, however think that a felony conviction could be appropriate for a person caught transferring without a check a second (or more appropriately a third) time. Selling your old pistol in an improper manner to some dude in your bowling league shouldn't be a felony. There should be some check on this so that the only people getting felonies are those purposefully avoiding the checks to sell multiple firearms.

Exceptions of Note:

(1)  The check isn't required if the firearm is gifted to an immediate family member and in Sen. Saslow's version "a personal friend."

(2)  The check isn't required if the transfer happens "by operation of law."

(4)  The check isn't required if the transfer is by an executor in accord with a will.

COMMENT: Probably the most common "by operation of law" situation is death without a will wherein things pass according to statutes and bad-apple Bobby, the convicted bank robber, is the only legal heir and gets Grampa's Garand. In that case there probably isn't anyone around to transfer the rifle. However, why in the world anybody would think an executor shouldn't have to check to see if Bobby can possess the weapon is beyond me. She should because if we are serious about keeping Bobby from having a firearm the fact that Grampa willed it to him shouldn't matter.

(9)  "The transfer occurs at a shooting range, shooting gallery, or any other area designed for the purpose of target shooting or for use during target practice, a firearms safety or training course or class, a shooting competition, or any similar lawful activity"

COMMENT: That is terrible draftsmanship. There are two ways to read that and both provide a loophole with the only difference being the second is bigger than the first. "or for use during" should be replaced with "and the transfer is only for the duration of." As it stands this exception, at the very least, authorizes without background check any transfer "at a shooting range, shooting gallery, or any other area designed for the purpose of target shooting." If the second "or" is interpreted as being linked to "area designed" rather than "The transfer occurs" it widens the locations available for unchecked transfer significantly. If the second "or" is interpreted as linking to "The transfer occurs" then unchecked transfers are only authorized at "a shooting range, shooting gallery, or any other area designed for the purpose of target shooting."

I'm not sure where they got the canned language, but somebody with basic reading skills should have caught that.

(10)  The transfer happens at a firearm show and the State Police performed the background check.
NOTEThe bill also proposing eliminating the language in § 54.1-4201.2 that allowed the background check to be foregone at gun shows.

More Posts about the Firearm Proposals

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