Bill would make it illegal to sell gun to someone banned from owning a weapon

AUGUSTA — Gun safety advocates are calling for passage of a bill that would make it a crime to sell a gun to a person who's prohibited from possessing a weapon.

Portland Democratic Rep. Mark Dion's bill, which is up for House and Senate votes, is aimed at private firearms sales, which advocates say comprise 40 percent of the gun sales that take place.

Dion's bill would make it illegal and set fines for selling firearms to a convicted felon or person who's on the so-called prohibited list. It creates a defense for a seller who conducts a background check, and increases the penalty from $50 to $1,000 for giving a false name to a firearms dealer.

The measure comes up amid separate bills introduced since December's Newtown, Conn., school massacre.

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Comments

JERRY ARIPEZ's picture

Pure and simple

The NRA and its ilk wants everyone to have a gun, even the criminals...

Steve Bulger's picture

Process?

So, does Dion's bill provide a means for private sellers to obtain a firearms background check on the potential buyer? The NICS e-check system is available only to FFLs and LEOs. Will this new legislation require local/county/state police office personnel to process a private seller's background check of a prospective buyer? If not, the bill provides penalties for failure to comply but not the means to avoid penalties.

Noel Foss's picture

Right...

"We can't pass the background check law through the front door; we'll try and do it through the backdoor instead, but we won't say it's about forcing background checks...we'll say it's about fining criminals, and everyone'll be okay with that!"

Seems underhanded...so I guess 'business as usual' for politics.

Before people jump down my throat, I support the idea of background checks. But I don't like underhanded political tactics.

JERRY ARIPEZ's picture

Underhanded

That is slipping it in as an amendment in the dark of night.

Again doing nothing would of not brought this out in the open for a look.

Underhanded, not....it is called conversation to resolve issues that need addressing in any part it can be save guns from getting into the WRONG hands.....

Noel Foss's picture

underhanded because:

It's a bill with the goal of forcing background checks, without actually stating "background checks are mandatory"

JERRY ARIPEZ's picture

who's on the so-called prohibited list.

Law enforcement has files on convicts, convicted felons, if that is a background check well damn me for using a list that has bad peoples names on it as an illegal tool to use....

Maybe if that convicted killer, out of jail for serving his time or early release due to full prisons, makes him eligible, well there sure is a big problem...to call the law enforcement to ask if that guy can have a gun now....maybe the Law enforcement would like to know he is in the process of buying a gun, in violation of his probation, for a start of cleaning up the streets?

They will say oh he will get one somewhere else, maybe, but at least the guy selling it, would maybe like to know, I would, before that gun that was legally bought was used in a robbery or mass murder later...that would make me feel real swell I sold a gun to a person that was cleared since I had no way of knowing or being able to check, like a legal lawful gun owner. Then again, why would I care, its just another gun on the street like all the rest.....some people have values and morals about these things....

Well it is not as easy as simple minded people think, for just anybody to walk up to a drug dealer or punk and ask to buy a gun without themselves getting rolled for the money or shot themselves....This coming from an author that has walked the walk, stating these facts.

Noel Foss's picture

Straw man argument.

We're talking about fining somebody for not knowing that the person they're doing business with is breaking the law, not about "cleaning up the streets" or people who sell a firearm to someone who later commits a crime being amoral (a ludicrous accusation, frankly).

Again, this law doesn't mandate background checks. But it threatens you with a fine if you don't have one done. A fine for not doing something that you're not required to do...seems perfectly legit.

CLAIRE GAMACHE's picture

Not necessarily

It seems to me that the way this law reads it provides freedom not to do the background check if you are doing business with someone you know is a reputable and responsible gun owner but also gives you an incentive to do a background check with someone you think is acting weird or seems like a dicey character. Seems to me that a law abiding good citizen would want to do a background check in that instance anyway. Or perhaps people think it is a good idea to protect the rights of convicted felons, abusers, and mentally unstable individuals to have all the guns they want. Washing your hands of it and saying you can sell to anybody and not take responsibility is saying just that. I say if somebody suspects someone is dangerous and sells him a weapon he has blood on his hands. This law puts responsibility where it belongs.

Noel Foss's picture

Not every criminal acts "weird" and dicey

And there's lots of strange people out there that aren't barred from owning a weapon. Are you such a good judge of character that you can tell who's who all the time?
What this law does is give the state the right to fine you for somebody else breaking the law, plain and simple. Responsibility where it belongs would be eliminating the fine for the seller, and increasing the charges against the purchaser, since they're the one who's barred from owning a weapon in the first place, and is choosing to ignore that restriction.

CLAIRE GAMACHE's picture

Responsibility

I'm certainly not against raising fines for criminals but I don't agree that people who sell guns should have no responsibility at all when it comes to the buyer. We hold bars responsible for selling liquor to people who are visibly drunk. I see no difference. You can't have it both ways and say some people should take responsibility for their actions and others can just look away with the excuse that I'm not a mind reader. If there is a doubt then a background check would exonerate the seller from any penalty. And if there is doubt a responsible seller would make sure.

Noel Foss's picture

Let's put it into perspective:

Say you sell a car to somebody with a suspended license, and on the way home they run a red light while adjusting the radio presets in their newly-purchased automobile and kill somebody. Should you be held responsible and fined because you didn't check to make sure they had a license? There's no law saying that you have to call the local PD and make sure their license is valid before you hand them the keys. Ever sold a car private party? Ever made sure they had a license to drive it? Probably not, because there's no law saying that you have to. It's not your responsibility, it's theirs.
A group of friends decide to go hunting together, and while they're out in the woods a game warden shows up and asks for their licenses. Turns out one of the guys doesn't have a license, and hasn't taken a hunter's safety course. The warden doesn't fine the whole group or the landowner. He fines the guy without the license.
Same scenario applies for fishing; if a group of people go out together and one of them turns out to not have a license, the warden doesn't fine the boat owner or the rest of the group; he fines the guy who's knowingly breaking the law.

My point is, there's no law on the books stating that you have to ask for a license before selling a car, check for a licenses among your hunting party, check for fishing licenses before taking people out on your boat, and so there's no fines associated with not doing so. The same thing should apply to private firearms sales; since there's no law mandating background checks, there shouldn't be fines associated with not performing a background check. Plain and simple.

Zack Lenhert's picture

It's not a fine for "not

It's not a fine for "not performing a background check"... It's a fine for an illegal transaction. Your whole argument is based on being ignorant of who is buying your gun.

Noel Foss's picture

Wrong.

My whole argument is that I can be fined for not doing something that I'm not legally required to do. My ENTIRE argument (the point of which you're obviously missing) is that if there's no law on the books mandating something, there shouldn't be a fine for failing to do it.

Zack Lenhert's picture

You won't be fined for not

You won't be fined for not performing a background check as long as the transaction was a legal gun sale. (in this situation, there isn't a fine for failing to perform a background check). If you take part in an illegal transaction (i.e. sell a gun to a felon) you will be fined. Performing a background check protects you from being persecuted. You're interpreting the law backwards.

I repeat: The fine isn't for "failing to perform a background check"... the fine is for "selling a gun to a criminal".

Where is the responsibility of the seller? You're quickly eroding the the reputation of "responsible gun owners". You want to call yourself responsible... well take some responsibility.

Steve Bulger's picture

So please tell me, Claire,

How does a private seller who is not a LEO and does not hold a Federal Firearms License (FFL) go about obtaining a background check on a prospective buyer? The FBI-NICS e-check system is not accessible by the average person. Again, does this bill require local, county and state police to initiate a background check on behalf of the private seller?

CLAIRE GAMACHE's picture

Accessible

It would seem reasonable to me that if someone selling a gun in a private sale could be fined if he is selling to a criminal then the seller should have access to background checks with the cost being borne by the one buying the gun. If that is not the case then clearly that should be changed. If someone is doing business with someone they don't know well enough or trust enough to let them take their car out for a test drive then I would think that doing a background check before putting a lethal weapon in their hands is not too much to ask. There should at the very least be moral responsibility if not legal. People selling guns irresponsibly are making it that much easier for the guy robbing the teen working at the Xtra Mart or raping our mothers and sisters out walking the dog or killing their own family members. You would think every thinking person would feel a responsibility to do what they could.

JERRY ARIPEZ's picture

One step forward

Inch by inch, step by step, gotcha! Now that is one move in the right direction.

Noel Foss's picture

Shrug.

Provided the person that's selling the gun is ignorant of the buyer being prohibited, they're fining the wrong person.
There's no law in Maine mandating background checks, yet this bill seeks to introduce a potential punishment for exercising the right to a private sale.
It's akin to a fine for selling your car to a drunk with a suspended license.

JERRY ARIPEZ's picture

Why is a FFL different from a private seller,

It is a lethal weapon anyway you want to slice it....

http://www.fedcoplaw.com/html/federal_firearms_laws.html

e. False Statements - It is a felony violation to knowingly make a false statement or show false identification to an FFL: § 922 (a)(6) 10 years or § 924 (a)(1)(A) 5 years.

f. Records- It is a felony violation for an FFL to willfully fail to maintain a detailed record of a firearms purchaser: § 922(b)(5) 5 years; or a misdemeanor to knowingly maintain false records or fail to keep records: § 922 (m) 1 year.

g. Criminal Background Check - FFL must notify the FBI or State authorities of the purchaser’s identification so a criminal background check can be completed before the firearm is transferred, § 922 (t) 1 year. If a potential purchaser is prohibited, the FFL may not transfer the firearm, § 922 (d), 10 years

Zack Lenhert's picture

"Provided the person that's

"Provided the person that's selling the gun is ignorant of the buyer being prohibited,"

If I'm ignorant of the speed limit, is it ok for me to drive whatever speed I'd like? You ever try to get out of ticket by saying "I didn't know the speed limit was 25"

Zack Lenhert's picture

When the cop gives me a

When the cop gives me a ticket, is it for not checking what the speed limit was, or was it for driving too fast? The way Foss explains it, it is because I didn't look for speed signs.

Selling a gun to someone not allowed to have one should be a crime and ignorance is a very poor excuse.

Noel Foss's picture

When the cop gives you a ticket

I'm willing to bet it's not because the speed limit sign you drove past told you the limit was 45 when it was really 25. Although that would be some pretty trippy stuff.

"Ignorance is a very poor excuse" is a somewhat ironic statement. Prior to today, had an officer fined you for failing to card somebody under the age of 27, ignorance of having committed said violation would probably have been your first defense.

Like it or not, sometimes "I didn't know" is a perfectly valid excuse.

Zack Lenhert's picture

I would have said "I didn't

I would have said "I didn't know" but I wouldn't have used it as a defense if I had gone to court because it's not a valid legal excuse, or at least shouldn't be.

Noel Foss's picture

Disclaimer:

I don't mean that to be a personal attack; I'm trying to illustrate that part of human nature is that everything's different when we're talking about somebody else.

Zack Lenhert's picture

I get it... but I would have

I get it... but I would have ID'd anyway ( i always did) because it's the responsible thing to do so I didn't accidentally sell to someone who shouldn't have alcohol. I guess I may have served friends I knew were of age w/o IDing them.

I guess if you PERCEIVE that your being "forced" to perform a bg check without it actually being mandated, then that's your reality. I don't see it that way b/c you aren't being forced to do bg check at all. You can sell all the guns you want to anyone in person without so much as asking their name. You'd only get in trouble if you sell to someone that can't possess a firearm legally. Are you unsure if they can or can't own a gun?... you should perform a background check. If you do, your covered from legal persecution. I fail to see where you are "forced".

JERRY ARIPEZ's picture

Double shrug

make it illegal and set fines for selling firearms to a convicted felon or person who's on the so-called prohibited list.

Read the bills meanings again...operative word -----convicted felon OR, what the F has a suspended drunk got to do with it?

Noel Foss's picture

you're missing my point.

They're fining the wrong person. Fining the person who's on the prohibited list I'm ok with. But fining somebody for conducting a transaction that, as far as they know, is perfectly legal? Not ok with that.

If I want to sell a firearm privately, without a background check, it's perfectly legal for me to do so, under Maine law. Say I check that they're a Maine resident, and I ask if they're able to own a firearm, and they say yes. Turns out they're not; they knowingly broke the law by purchasing a firearm even though they're prohibited from doing so. I get slapped with a fine for something that, to my knowledge, was a perfectly legal transaction.

It's the same as selling a car to a drunk with a suspended license BECAUSE as soon as they drive it away, they're knowingly breaking the law by driving with a suspended license.

You fine the drunk for driving without a license, not the seller for handing him the keys. Just like you should fine the purchaser for knowingly violating the law.

Zack Lenhert's picture

"fining somebody for

"fining somebody for conducting a transaction that, as far as they know, is perfectly legal" ... But It's not a legal transaction. Any straw purchaser could just claim "I thought it was perfectly legal".

If you perform a background check before you sell a weapon you'd be protected from persecution. You're covered.

This is not an unprecedented procedure. Just as a bartender is required to check an ID before serving alcohol, a person selling a deadly weapon has to take some responsibility. It's not ok to just ASSUME that a person you're selling a gun to is legally allowed to possess a gun. Ignorance ("i didn't know he wasn't allowed to own a gun") is not an excuse.

Noel Foss's picture

not the same.

Not only is a bartender running a business (much like a Firearms Dealer), there's a law on the books stating that he HAS to card that person (much like a firearms dealer HAS to run a background check).
Additionally, there's laws on the books in Maine saying that it's illegal to provide alcohol to anybody under the age of 21, whether through a business or privately. There is NOT a law in Maine saying that you have to perform a background check when you sell a firearm privately.

I've sold guns private sale before, through Uncle Henrys. I always ask to see their license to ensure that they're a Maine resident, I google their name to see if they show up on any police reports, and I ask them if they're allowed to own a gun. If they lie to me and say that they are when they aren't, should I be fined? I've done my due diligence, more so than the law requires that I do, in fact. But this law would open me up for fines, in spite of that.

Zack Lenhert's picture

By law, you don't have to ask

By law, you don't have to ask for anyone's ID to sell them alcohol, but selling to anyone underage is illegal. That's why they check ID's, it's usually a company policy. I don't need to ID the patron that is at the bar everyday because I am confident enough that he is of legal age.

In my opinion, it should be illegal to sell a gun to a felon (crazy me!). This law actually PROTECTS a seller from being persecuted for this crime as long as they performed a background check. Like I said, you're interpreting the law backwards.

Just like the liquor laws, the seller needs to take some personal responsibility for their actions. I applaud you for the diligence you are performing now when you sell a firearm... but if you unknowingly sold a gun to a criminal you didn't do enough.

Noel Foss's picture

Sigh.

"By law, you don't have to ask for anyone's ID to sell them alcohol"
Really? All those signs saying "it's the law" at the checkout at the grocery store must be wrong, then...

It's already illegal for felons to buy guns. It's also already illegal to knowingly sell felons a gun (a practice known as "gun trafficking"). There's already fines and jail times involved for both violations.
A law should make sense forwards, backwards, and inside out, otherwise it shouldn't be a law. You shouldn't have to read a law "a certain way" for it to make sense.
It's easy to quarterback from an armchair about somebody else selling a gun. But it sounds like you've never sold a firearm private sale before and are criticizing me for potentially "not doing enough" despite doing more than what's required by law. By that standard, people should be fined for any of the scenarios I described above (selling a car to somebody with a suspended license, fishing with somebody who doesn't have a license, etc), because they're not doing everything they can to keep somebody else from breaking the law.
My problem with this isn't that it.... let's say "strongly encourages through a monetary threat" people to perform a background check; it's that it threatens to levy a fine against you if you don't do something that's not required by law. That's my primary issue with this law. I'm a firm believer that if something's not mandatory, you shouldn't be punished for not doing it. If the state wants to make background checks mandatory, and develop an easy, effective and inexpensive way for private sellers to perform them, then I wouldn't have a problem with this law being put in place as well. But until they do, I'll remain opposed to this law for that very principle. If you want to support it, go ahead.
But you should ask yourself if you'd be as eager to support a law that fined you for selling a car to somebody without a license, or that fined you for fishing in the same boat as somebody without a license. Because laws are all about precedence, and by saying that you can be fined for not doing something that's not legally required, this law wouldn't set a good one if it's adopted.

Zack Lenhert's picture

"All those signs saying "it's

"All those signs saying "it's the law" at the checkout at the grocery store must be wrong, then..." yes, they are wrong. Please cite the law requiring a person to check ID before selling alcohol... it doesn't exist. The law states you can't sell to minors, and part of the responsibility lies with the SELLER.

"it threatens to levy a fine against you if you don't do something that's not required by law." The law doesn't do that! Background checks are not REQUIRED. You are wrong here. You need to take a basic law class.

"by saying that you can be fined for not doing something that's not legally required" The fine IS NOT for failing to perform a background check. The fine is for selling a gun to a criminal.

Noel Foss's picture

Certainly.

Here it is:
"Maine law requires a licensee or licensee’s employee or agent may not sell, furnish, give or deliver liquor or imitation liquor to a person under 27 years of age unless the licensee or licensee’s employee or agent verifies the person is not a minor by means of reliable photographic identification containing that person’s date of birth (Title 28A-sec 706-2)."

What about this don't you get? Let me put it to you this way:
1) You're not required to perform a background check under Maine law for private sales.
2) This law will enable the state to fine you if you sell a firearm to somebody NOT permitted to buy one, IF you don't do a background check first.

Translation: "You're not required to do a background check, but we might fine you if you don't and it turns out that a criminal bought the gun, even if you didn't know because you didn't perform a background check" is EXACTLY what this bill will do. If you think that's not the case, YOU need the basic law class.

Noel Foss's picture

"What about this don't you get?"

I apologize for the above line; it was less than polite, and I try to avoid that.

Zack Lenhert's picture

You're NOT being fined for

You're NOT being fined for failing to perform a background check. Performing the background check is a PROTECTION for the seller. How do you justify the "even if you didn't know" clause? Its completely irresponsible.

The effect of the law will be to ENCOURAGE background checks, which you claim you support.

Noel Foss's picture

ok;

It's true that you're not being fined directly for failing to perform the background check; you're being fined for selling the gun to a criminal. How do you propose discovering that criminal history, if not through a background check? See the Catch-22 here?
You don't need to do a background check, but if you don't you might get fined...so you need to do a background check.
Hence why I think that if they're going to make this a law, they also need to make background checks mandatory. But if they're not going to make background checks mandatory, then this law needs to be scrapped too, since it imposes a fine for not knowing something that you didn't know was illegal, unless you did something you're not legally required to do.

Zack Lenhert's picture

I concede the liquor law...

I concede the liquor law... It was enacted after I was bartender and previously had just been company policy.

JERRY ARIPEZ's picture

Federal or State it should be written, oops it is

2) This law will enable the state to fine you if you sell a firearm to somebody NOT permitted to buy one, IF you don't do a background check first.

If the Federal law can fine a FFL , it should stand also for a private seller

Noel Foss's picture

Problem:

The FFL is required by existing federal and state law to perform a background check on all sales. Private sellers are not.

Since there's no law against it, there's no fine.

JERRY ARIPEZ's picture

Precisely

So it should be law and with a fine...to follow suit...however it gets there, it should be the same for all...

If you need a license to just sell, should that be done by a FFL also?....I had to ship my guns from MN to ME to my brother thru a licensed FFL, so why can't they sell them for private sellers also? It is safe and done legally this way?

Noel Foss's picture

Ok, sure.

But if you're going to make something a law, make the damn thing a law! Don't say "this is completely voluntary, but if you don't do it then we just might fine the pants off of you!"
But if they're going to make background checks mandatory, I sure as heck wish they'd get on fixing all the problems with the NICS system.

Zack Lenhert's picture

40% of gun sales are private.

40% of gun sales are private. That's a huge market for criminals.

Noel Foss's picture

That number's as unreliable as the ones from John Lott.

It's from a survey of 250 people, in 1997. It also doesn't refer to sales, it refers to acquisitions (including inheritances)
Of that 40%, 29% were among family members or friends (17% and 12%, respectively). 3% were through the mail (which requires an FFL to perform a background check) and 4% were from gun shows (which, in Maine, also require an FFL to perform a background check). That leaves 4% classified as "other" to be the sales between people who didn't know each other.

Noel Foss's picture

Link included below:

Should you care to check my math (never my strongest subject in school).

https://www.ncjrs.gov/pdffiles/165476.pdf

JERRY ARIPEZ's picture

They make arguments so difficult?

The bottom line of it all, they argue about keeping a safer nation, with weapons out of criminals hands...It is beyond me that they want to prevent preventive approaches to save lives?

Even 2% of the 40% of say 200 million, would still be a step forward of keeping somebody alive, they would think? 4,000,000 illegal sales prevented can make a huge difference in a families lives.

KATHY WILLIAMSON's picture

I'll be surprised if the NRA

I'll be surprised if the NRA doesn't squash it.

JERRY ARIPEZ's picture

One step missed

But again a little chew at a time...they should of taken it further, with the person that is prosecuted under this bill would also lose the right to buy any weapon for a period of set time. Not that he can't own them, just not buy any, for a set term.

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