Today, I took some time out from my work schedule to telephone the offices of some members of the Washington legislature’s House of Representatives, to ask them to oppose the unworkable and unenforceable WA HB 1588, the universal firearm sales background checks bill. Upon calling some of their offices I left voice mail messages. When I telephoned some other representatives, I was able to speak directly with the representatives’ legislative assistants.
Every legislative assistant I spoke with was helpful and cordial, regardless of their legislator’s intent regarding the bill. They not only listened, they also asked questions. They gave me the impression they understand I was knowledgeable about the subject, and they were interested in frank discussions about it. While I doubt many legislators will be swayed, I told each of their assistants that I felt it was important that they hear directly from constituents and residents about our sentiments regarding the bill, and to tell legislators who oppose the bill that they have wholehearted support from Washington residents who also oppose it.
According to many news reports, there is a possibility that a revised version of WA HB 1588, that would include a referendum clause, may pass the Washington House of Representatives. However, the same news reports appear to indicate that there is significant opposition to the bill in the Republican controlled Washington State Senate. Thankfully the state Senate seems more likely to defeat this unworkable and unenforceable legislation.
Background
While the abstract concept that every firearm sales transaction should require some form of background check seems obvious on the surface, the details of bills drafted to implement the concept prove that they are unworkable, unenforceable, and place unnecessary burdens on law abiding gun owners. In combination with the federal firearms statutes, the existing firearms statutes in Washington State already provide a framework that makes it easy for responsible gun owners to privately sell a firearm they own to a known eligible buyer. In Washington State, all the seller need do is ask the buyer to produce a concealed pistol license and matching state identification. In Washington State anyone who is already eligible to own firearms under state and federal law can obtain a concealed pistol license from a local sheriff for an approximate $52.50 fee, submission of fingerprints, and an NICS background check.
In addition, Washington state statutes RCW 9.41.040 and RCW 9.41.080 already make it illegal to sell a firearm to a prohibited person. Consequently, a private firearm seller has a legal duty to check the eligibility of a firearm buyer before selling one to that person.
Another aspect of WA HB 1588 that makes it unworkable, and uninformed, is that the ATF 4473 firearm purchase form, was never intended to be used for the purposes that WA HB 1588 proposes. In fact, the federal government has not authorized local police or local sheriffs to use ATF form 4473 for the purposes that WA HB 1588 proposes. The form does not in any way contemplate its use for background checking and recordation of a private firearms sale. The form is available for review at the link below.
(ATF Form 4473 – Federal Firearm Dealer Firearm Sales/Transfer Form)
Washington State Legislature HB 1588 is also redundant and unnecessary because it is already a felony to “deliver” a firearm to a prohibited person, pursuant to RCW 9.41.080. Washington State Legislature HB 1588 is also redundant and unnecessary because federal statute 18 USC § 922(d) enacts similar prohibitions. The full text of these statutes, as provided below makes this clear.
RCW 9.41.080
Delivery to ineligible persons.
No person may deliver a firearm to any person whom he or she has reasonable cause to believe is ineligible under RCW 9.41.040 to possess a firearm. Any person violating this section is guilty of a class C felony, punishable under chapter 9A.20 RCW.
(state statute source)
http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.080
18 USC § 922(d)
It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person:
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who [2] has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
(federal statute source)
Washington State's law abiding gun owners have already won an important concession to the gun ban zealots' aspirations for a "universal background check" statute. The first concession is that any seller who sells their firearm to a concealed pistol license holder is able to bypass the "background check" system because the buyer's concealed pistol license is evidence of the required background check that the bill proposes. The following clause has been added to WA HB1588:
(2)(a) No unlicensed person may sell a firearm to another unlicensed person unless: ... (ii) the purchaser produces a valid concealed pistol license issued under RCW 9.41.070.
Yet another of the reasons WA HB 1588 remains problematic is because it does not address procedures for transfer of a firearm due to inheritance. At a minimum the executor, or successor trustee, of a decedent’s estate is not the actual owner of the firearm that needs to be transferred to its new owner under the terms of a decedent’s will and/or trust. As a result, even if the executor/trustee follows the terms of the bill if enacted, they would not be the actual gun owner transferring the firearm (especially if the executor/trustee is also the recipient of the inheritance because that person would be transferring the firearm to himself/herself), but the ATF firearms transfer paperwork makes no allowance for such circumstances. In fact for any private firearms transfer contemplated under the statute, the ATF firearms transfer form was never intended for such usage and its contents isn’t designed to meet such needs. The ATF form was intended for use solely by FFL retail firearms dealers. Notably, the universal background checks bill drafted in Colorado includes explicit language that addresses this issue.
In reviewing existing Washington State law, pursuant to state statute RCW 9.41.080 and federal statute 18 USC § 922(d), both already imply a responsibility for a private firearm seller to check the buyer's eligibility. A private firearm seller would be criminally liable for selling a firearm to a prohibited person under existing RCW 9.41.080 in Washington State in any event. That responsibility upon the firearm seller would continue to exist if WA HB 1588 were to be enacted, and that portion of the statute would remain the same. An ineligible buyer would be committing a separate felony crime pursuant to RCW 9.41.040. The existing law fulfills all the necessary requirements for the system to work, as it clearly does already, except that local government have failed to adequately prosecute people who violate the associated statutes:
RCW 9.41.080
Delivery to ineligible persons.
No person may deliver a firearm to any person whom he or she has reasonable cause to believe is ineligible under RCW 9.41.040 to possess a firearm. Any person violating this section is guilty of a class C felony, punishable under chapter 9A.20 RCW.
RCW 9.41.040
Unlawful possession of firearms — Ownership, possession by certain persons — Restoration of right to possess — Penalties.
(1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.
(b) Unlawful possession of a firearm in the first degree is a class B felony punishable according to chapter 9A.20 RCW.
Summary
It should be apparent from all these example, why WA HB 1588 create a pointless, unworkable, unimplementable, unenforceable statute. A statute like it is not going to prevent mass shooting massacres. Such a statute is not going to stop felons and other prohibited people from illegally trading in firearms, just as the existing law cannot, because such people are not going to abide by such statute, regardless of its structure. Given all the foregoing, Washingtonians should oppose Washington State HB 1588.
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