I-594 transfers

I think the writers of I-594 put some fatal flaws in their initiative by trying to cover “transfers” rather than just sales and in their definitions. Their definition of transfer:

“Transfer” means the intended delivery of a firearm to another person without consideration of payment or promise of payment including, but not limited to, gifts and loans.

I cannot find any exemption for manufacturers, shippers, wholesalers, and perhaps (it’s not clear to me on “dealers”) even retail personal. They do offer this (emphasis added):

All firearm sales or transfers, in whole or part in this state including without limitation a sale or transfer where either the purchaser or seller or transferee or transferor is in Washington, shall be subject to background checks unless specifically exempted by state or federal law.

The way I read the Federal law, and I don’t think there is state law or else they wouldn’t have needed I-594, is that they don’t have specific exemptions for manufacturers or shippers. In fact “prohibited persons” in those occupations are specifically disallowed so why would they be necessary?

A strict reading of the new law would seem to conclude that a background check and paperwork is required for each firearm transferred between these people. The Federal law on background checks avoided this problem by only requiring background checks on sales. The Feds do require Federal Firearm licenses for manufactures and dealers. The Feds do require background checks on employees who have constructive possession of firearms. But there is no specific exemption for background checks on each transfer between employees or employees of common carriers (shippers).

Compounding things further they even use an interesting definition of “person”:

“Person” means any individual, corporation, company, association, firm, partnership, club, organization, society, joint stock company, or other legal entity.

So how do you do a background check on all these legal entities? There is no specific exemption for any of them in Federal law and I-594 doesn’t mention one in state law.

Hence, the law has a difficult problem. If they were to enforce the background check and paperwork requirement on each transfer then commerce in guns would grind to a halt, placing such a burden on the specific right to keep and bear arms that it fails any level of scrutiny. If they don’t enforce the law against “legal entities” and their employees then I-594 has serious issues with selective enforcement.

The Feds avoid this bag of worms by only requiring background checks on FFL sales and making it illegal to transfer guns to prohibited persons. By expanding background checks and associated paperwork to all transfers the authors of I-594 created a law that clearly infringes upon our specific enumerated rights at any level of scrutiny.

Update: As Lyle points out, Federal law specifically exempts private sales from requiring a background check. By I-594 own words private sales are not covered. The sales aspect of the law is, at best, ambiguous.

Update 2: I was unable to find a specific law or regulation that confirms the point Lyle made in my previous update. It appears that the ATF FAQ I linked to is derived from the things that are not prohibited rather than those things which are specifically exempted.

However, if the person you are transferring to/from is from out of state there is a specific Federal exemption:

§478.30   Out-of-State disposition of firearms by nonlicensees.

No nonlicensee shall transfer, sell, trade, give, transport, or deliver any firearm to any other nonlicensee, who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides: Provided, That the provisions of this section:

(a) shall not apply to the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or any acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence; and

(b) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.

This may be result in another unconstitutional point of contention. I believe it is unconstitutional for a state to give non-residents rights it denies it’s own residents. However this doesn’t say the nonlicensee is exempt from background checks. It just says they may transfer it. But since there is no provision for a nonlicensee to do background checks they are exempt by default.

However there are exemptions for loan or rental of firearms:

§478.97   Loan or rental of firearms.

(a) A licensee may lend or rent a firearm to any person for temporary use off the premises of the licensee for lawful sporting purposes: Provided, That the delivery of the firearm to such person is not prohibited by §478.99(b) or §478.99(c), the licensee complies with the requirements of §478.102, and the licensee records such loan or rental in the records required to be kept by him under Subpart H of this part.

(b) A club, association, or similar organization temporarily furnishing firearms (whether by loan, rental, or otherwise) to participants in a skeet, trap, target, or similar shooting activity for use at the time and place such activity is held does not, unattended by other circumstances, cause such club, association, or similar organization to be engaged in the business of a dealer in firearms or as engaging in firearms transactions. Therefore, licensing and recordkeeping requirements contained in this part pertaining to firearms transactions would not apply to this temporary furnishing of firearms for use on premises on which such an activity is conducted.

This would appear to give the specific exemption from background checks and paperwork to many, if not all, legal entities engaged in loans and/or rentals.

29 thoughts on “I-594 transfers

  1. I believe that you may be on to something. It appears that the way to defeat this bill is to challange it in court as being too broad. Argue that any time anyone except for the few exceptions transfers a firearm arm to another, even if it is only to unload it from the delivery truck, a background check must be made and if the law is followed to the letter it would completely halt the gun industry completely.

  2. Private sales are “specifically exempted…by federal law”, so…

    Anyway; the purpose of 594 is to harass law-abiding gun owners and law-abiding prospective gun owners, thus amplifying the existing chilling effects against exercising a human right, so don’t expect it to be clear and logical. Expect it to have been designed for its purpose, which is ambiguity, complication and frustration, with the, predictable, added bonus of growing the bureaucracy.

    So now you see that it is quite easy to understand and that every aspect of it makes perfect sense.

    • Private sales are “specifically exempted…by federal law”, so…

      Do you have a specific link to the U.S.C that supports that claim? The FAQ that Joe linked appears to only specify inferences that transfer between individuals is allowed because the transfer has not been *specifically* banned.

      • Something tells me engineers and others geeky enough to understand flow charts voted the correct way anyway.

        The people that voted for this bill were people who do NOT believe in the 2nd Amendment, and are the types quoted in Joe’s “Nobody want to take your guns” series.

        OR the type of people who go “TLDR” when it comes to the text of the bill, and generally assume the other side is lying when they say how horrible this law is, and take the anti-gun lies that this bill ONLY applies to Gun Shows and Online Sales as wholesale truth.

  3. Tom McCord, you are correct, the only issue now is to find someone who has suffered an injury because of that overbreadth, if not also void-for vagueness and conflict with federal law.
    As in the challenge to the DC totalitarians, the proper Plaintiff and standing are everything.

    • That’s easy. Any shooting instruction business which can claim someone canceled a class because they were planning on borrowing a gun to shoot in it, so they lost money. Any business that has to be shipped a gun and it can’t be. Anyone that sells BP guns that are now regulated and sees a major business fall-off. Anyone service man who’s going to be deployed and can’t store their guns at a friends place while out of the nation, because they guy is afraid of the legal liability.

  4. Elsewhere (I apologize, I have CRAFT, Can’t remember a freakin’ thing) there is a discussion of how transfers for the purposes of performance a la movies or TV are exempt. If that is so, then when a new shooter is introduced to the American martial arts at a range in Washington State, and a pistol or rifle is loaned to him, video the experience with a Go Pro.
    Just as an artist is the only thing you can say you are that no one can say you aren’t,* if the video recording is done with the subject’s knowledge and consent, it’s a performance.

    *Attributed to Charles Russell, the Montana western artist.

    • Wonderful idea!

      Flip side: Iif somebody videos a “transfer” as a protest, it’s no longer evidence of a crime and they can’t be prosecuted and therefore have no standing to sue to overturn the law!

      “That’s some catch that Catch-22!”

      • Flip it again: if you and a buddy are transferring firearms in the course of your performance art, and you get arrested, protesting loudly on video and audio that there is an exception for performances, then you have grounds for false arrest and/or inadequate training of the officer with regard to the particulars of law by his department resulting in same.

        I typically video new shooters I take to the range and put them on my blog. I’ve registered at Boomershoot as “media” for this reason. I’m an ARTEEEST, dammit.

        • Oh, wait, the initiative language says that the transfer has to be among an organized group for the purposes of practicing for a performance or competition.

          Good thing I’ve organized my Boomershoot buddies into what we call a “team”. We’re organized. I’ve got an email trail showing organization and arrangements for travel, lodging, shared equipment, practice sessions at ranges, etc.

          I’ll have to start calling my new shooter events “auditions” or “try-outs”.

    • Suddenly western wear and open carry make a lot more sense. “We’re just part of a bit of performance art, Officer.”

  5. This definition of ‘transfer’ is more like the treatment of Schedule I Drugs than an enumerated right.

  6. Pingback: The many, many flaws of I-594... - The Gun Feed

  7. Pingback: Just one question about I-594 | The View From North Central Idaho

  8. Section 3(4)(f) – Performance Section
    …or while participating in or practicing for a performance by an organized group
    that uses firearms as a part of the performance;

  9. friends:

    if this misbegotten piece of shit passes legal muster and becomes “law,” there is a fairly easy way to ameliorate its impact.

    ignore it. disobey it.

    john jay

  10. Premature emailing:
    I am a retired USN 06.
    I teach and my website states I provide the firearms and ammunition for basic classes.
    I have been made a criminal because classroom teaching involves having students handle firearms that I give them, and classroom is not on an established range.

    Bob

  11. I594 Section 2.4 reads:

    “‘Dealer’ means a person engaged in the business of selling firearms at wholesale or retail who has…a federal firearms license…”

    Section 2.12 reads similarly: “‘Licensed dealser’ means a person who is federally licensed under 18 U.S.C Sec. 923(a).”

    Further, Section 3.2(a) establishes licensed dealers are exempt.

    • And? Where does it say the employees of a licensed dealer are exempt? There is only one person’s name (or the company name) on the dealers license. The way it is written every employee would have to have their own Federal Firearms License to handle the guns in the store. Even then transferring guns from FFL to FFL involves a bunch of paperwork even if there were no background checks.

      Furthermore, where is the exemption for manufacturers and shippers?

      • Sec. 2(17): “‘Person’ means any individual, corporation, company, association, firm, partnership, club, organization, society, joint stock company, or other legal entity.”

        But you make a valid point: nowhere does it say an individual can transfer on behalf of a company…it is certainly implied…perhaps that is covered elsewhere in the RCW’s.

        I’ll have to check that out, but it’s just one more problem with 594.

  12. The counter guys at Cabela’s were wondering the same thing over the weekend – they aren’t “licensed” so what happens when someone wants to look at a gun? What about the rifle I just bought? Are they in violation handing it back and forth between themselves after my paperwork is approved? Am I the official owner of the rifle at that point? Then they carry it to the front door of the store and hand it off to one more person before it is handed to me as I head out – how many violations is that? Also – I am getting ready to ship a shotgun to Texas – will the UPS counter gal be in violation and then the box handlers and the truck driver until it crosses the state line? Good grief.

  13. So Robert Margulies, and the counter guys at Cabela’s, I recommend you change your names to “Plaintiff” and sue on void for vagueness, overbreadth, and for declaratory judgment, and make the argument for suspension of enforcement until the issues are resolved.
    The same principles and techniques for interpreting the First Amendment are used on the Fourth, Fifth, Sixth, and every provision of the various Articles, and also, despite the fascists’ fondest desires, the Second Amendment.

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