Unravelling the So-Called Universal Background Check Bill – Senate Bill S. 374

March 25, 2013One Comment

*** NOTE: Since I wrote this piece, the legislation has been consolidated with some other proposals and has a new bill number. The language referred to in this piece is still included, and the analysis is still on point, but I will try to correct the references shortly.***


In the last week, Senator Feinstein’s assault-weapon and magazine bans have been stripped from the United States Senate’s upcoming gun-control proposal, which is good news in and of itself. Gun rights activists are generally pleased, and what remains is primarily a background check proposal. Gun control advocates herald this universal background checks as a common sense way to keep guns out of the hands of felons- but what the legislation actually accomplishes is extremely bad news for anyone who values their Second Amendment rights. Surprisingly, I haven’t seen any media coverage that actually analyzes the text of this proposed law. It’s not good.

The text of the bill can be found here: S. 374

The legislation will Amend 18 USC 44, and is subdivided into two parts. Title I-Ensuring That All Individuals Who Should Be Prohibited From Buying A Gun Are Listed In The National Instant Criminal Background Check System deals with strengthening the NICS background check system by requiring that certain data be added to the registry, and imposing penalties on States that don’t comply by withholding certain funding. The really objectionable portions of the law are found in Title II-Requiring a Background Check For Every Firearm Sale.

Title II – Requiring a Background Check For Every Firearm Sale

Title II makes it unlawful to sell, gift, loan, return from pawn or consignment, or otherwise dispose of a firearm to any person without first passing it through a licensed firearms dealer, who will then proceed to run a background check (and probably collect a fee.) It remains unclear why a dealer who is in the business of selling firearms would agree to get involved in someone else’s sale. The bill requires the setting of a maximum fee that a licensed dealer may charge for this service, which means that if it isn’t worth the dealer’s time (not to mention their liability) to get involved in your private sale, you will be unable to privately sell your firearms. The bill makes certain exceptions, but the exceptions only serve to trap the unwary in a labyrinth of newly created federal crimes.

Family Exemptions – Good News, Or Is It?

The bill excepts bona fide gifts, transfers from the estate of a deceased person, and temporary transfers that take place on private property and last less than 7 days. Unwittingly violate one of these background check provisions, and you are looking at fines and up to one (1) year in Federal prison.

Bona fide gifts, but not other types of transfers, between spouses, parents and children, siblings, and grandparents and grandchildren are exempted from the background check requirement. Although the bill seems to carve out exemptions for intra-family transfers, it really only exempts gifts between a small number of familial relationships and makes every other intra-family transfer a criminal violation. If you want to sell your brother or your niece your hunting shotgun, you will have to run a background check on them first.

The bill also seems to make temporary transfers exempt, but the wording of the bill actually turns commonplace behavior into a criminal violation. In order to be exempt, the temporary transfer has to take place on your property and last less than seven days. Because the intra-family exemption only applies to bona fide gifts, if you went out of town on business or vacation for more than seven days and left a firearm in your home (even if locked up) with any other person, including your spouse, parent, child, grandparent, grandchild, aunt, uncle, niece, nephew, unmarried domestic partner, gay partner, live in boy friend or girlfriend, roommate, house-sitter, pet-sitter, or truly any other relationship you can imagine, you will have been deemed to have ‘transferred’ the firearm to that person and be in violation of the law. Leaving a firearm in a house with multiple residents could presumably result in multiple violations. This section is either incredibly poorly drafted, or was intentionally drafted so as to criminalize ordinary gun ownership. As a result of this provision, no person who owned a firearm and resided with another person could leave their home for more than seven days without violating this section of the law. 

But What About Hunting and Sports?

Good news sportsmen! You also get an exemption.

If you want to go shooting with your buddy and loan him your rifle, that transfer is exempt… so long as you go shooting at a range that has been incorporated for the express purpose of nature conservation or firearms proficiency. If you decide to go shooting on your own private, unincorporated property and loan them your weapon, you just broke the law.

What about shooting competitions? No problem… so long as the competition is organized or approved by either a state agency or nonprofit organization, you should both be exempt, but only for so long as you remain on the premises of the competition. If you caravan home with the rifle in your friend’s car, hope you don’t get pulled over.

Surely hunters get a pass, right? Hunters do get an exemption but only during the hunting season, and only if your friend has all of the right State paperwork. Violation of State hunting laws transforms this into a federal crime. Just hope he did not unwittingly let his hunting permit expire.

Lost Guns

The bill also makes it a crime to fail to report a lost or stolen gun within 24 hours to both your local authorities AND the Attorney General of the United State. So if you go on a hunting trip in the wilderness for a week, and your canoe capsizes on the third day, if you can’t make it back to civilization to get in touch with the police and Eric Holder, you just committed a Federal felony that will land you up to five (5) years in a Federal Penitentiary, plus fines. No word yet on whether Attorney General Holder works weekends, so let’s hope you didn’t lose your gun on a Friday evening.

So What Does All Of This Mean For Me?

If this legislation becomes law, it will mean that privately selling your guns will be a much more complex, and a much riskier activity. Even simply owning guns may render you a criminal, if you travel a lot and leave your firearms at home with another person. Going shooting with your friends also will become a much more complicated affair. Ultimately, this legislation will burden gun owners in exchange for very few, questionable benefits.

Gun Trusts As a Solution?

What can you do? A Gun Trust may be one possible solution. One option for owners of items regulated by the National Firearms Act like suppressors, fully automatic firearms, and short barreled rifles and shotguns has been to create a Firearms Trust or Gun Trust. These trusts provide some benefits in the application process for NFA items, but there are also significant benefits in how owners of NFA items are able to manage their weapons- trusts make it possible to loan regulated firearms to family and friends without running afoul of the NFA and committing an “accidental felony.” This background check legislation creates a number of new “accidental felonies” for all gun owners. If this proposal becomes law, gun owners may look to Gun Trusts to provide them with ease and security in how they manage their non-regulated weapons. A gun trust might allow you to name beneficiaries of your trust who are entitled to use the trust assets (the firearms) without running afoul of these transfer rules. Of course, it is hard to predict exactly what options will be available until something becomes law.

If this legislation concerns you, please contact your Senators and Congressmen and tell them what you think about this proposal. And as always, I would be happy to talk to you about protecting your firearms (and the rest of your estate) through trust-based estate planning.

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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.

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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.

We hope the information in this article is educational; however it should not be construed as formal legal advice. Every client's situation is unique, so please allow us to talk with you and analyze your situation in its proper context.  To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this article was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer's particular circumstances.


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