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US House passes bill to criminalize all unlicensed private firearm transfers

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Calling it a 'universal background check bill' is a misnomer

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The U.S. House of Representatives passed an expansive gun control bill that would criminalize firearm sales, gifts, or loans between unlicensed private persons.

On Wednesday, the House passed H.R. 8, the "Bipartisan Background Checks Act of 2021," a bill that expands universal background checks for private firearm transactions, requires all private firearms transactions to go through a licensed dealer, effectively bans persons age 18-20 from purchasing handguns, and contains only limited exemptions for self-defense. The bill passed 227 to 203, with eight Republicans voting with the Democratic majority in favor.

Democrats and gun control advocates praised the bill's passage, arguing the expanded background checks will help save lives.

"As a mother who lost her child to the very gun violence that every one of us have been fighting to eradicate, thank you. Thank you to all who have been fighting," Rep. Lucy McBath (D-Ga.), vice chair of the House Gun Violence Prevention Task Force and original co-sponsor of the legislation, said. In 2012, McBath's son Jordan Davis was murdered by a gunman after an argument over loud music outside a convenience store.

"WE DID IT! At the urging of thousands of our volunteers and other gun safety advocates, the U.S. House just passed #HR8, a bill to require background checks on ALL gun sales in America with bipartisan support!" Moms Demand Action said, before urging the Senate to act.

"Background checks save lives, and during the last year, the need for them has only become clearer. Loopholes in the background check laws have been exacerbated during the COVID-19 pandemic, meaning more guns sold to people without a background check, and more guns in the hands of people who should not have them," Everytown for Gun Safety said in a call to action campaign published after the bill passed the House.

However, opponents of the bill warn it would infringe on Americans' Second Amendment right to bear arms and criminalize lending or gifting a firearm to family members or friends without government approval.

"This bill would criminalize every transfer of a firearm unless it first goes through a government screening process — aka, gun owner registration — or unless the transfer fulfills one of the very few exemptions in the legislation," Gun Owners of America said. "NOTE: Because 'transfer' is not defined, even handing a gun to a neighbor could be severely punished."

H.R. 8 requires that all loans, gifts, and sales of firearms be processed by a licensed firearm importer, manufacturer, or dealer. An individual who wanted to buy a handgun from his cousin, for example, would have to go to the gun store and have a federal background check completed before the sale is finalized. The individuals engaged in the private firearm transaction must pay the same fees, file the same paperwork, and have the same records kept as if they were buying a new gun from a licensed dealer. While the transaction is being processed, the licensed dealer will take possession of the firearm.

Under the bill, unlawful gun transfers would be a felony. David Kopel, writing for Reason, explained: "If you loan a gun to a friend without going to the gun store, the penalty is the same as for knowingly selling a gun to a convicted violent felon. Likewise, when the friend returns the gun, another trip to the gun store is necessary, upon pain of felony."

Kopel also described how the bill would ban handgun sales to any adult ages 18 to 20:

Since 1968, federal law has said that gun stores may not sell handguns to persons under 21. 18 U.S.C. § 922(c)(1). Congress has not chosen to prohibit persons aged 18-20 from acquiring handguns elsewhere. The large majority of states allow handgun possession by persons 18-20.

Some legislators have forthrightly introduced bills to impose a ban on young adults. HR8 prohibits young adults from acquiring handguns, but does so with a clever subterfuge.

HR8 requires almost all firearms sales and loans to be conducted by a federally-licensed dealer. Because federal law prohibits licensed dealers from transferring handguns to persons under 21 years, HR8 prevents young adults from acquiring handguns. This is a clever way to enact a handgun ban indirectly.

Further, the bill empowers the attorney general to promulgate regulations setting the minimum fees licensed gun dealers may charge to facilitate a gun transfer and explicitly prohibits the government from capping those fees. So for example, the amount a man must pay to give his brother-in-law ownership of a firearm is only limited by the discretion of the current attorney general at the direction of whoever is president of the United States.

Loans or gifts to family members are permitted only for direct relatives and only if there is no payment of any form involved.

A partial self-defense exemption to proposed gun transfer laws exists for "a temporary transfer that is necessary to prevent imminent death or great bodily harm, if the possession by the transferee lasts only as long as immediately necessary to prevent the imminent death or great bodily harm, including the harm of domestic violence, dating partner violence, sexual assault, stalking, and domestic abuse."

There is also an exemption for "hunting, trapping, or fishing," but no such exemption for gun loans on farms or ranches, unless the gun owner is physically present for the entirety of the transfer.

The bill now heads to the United States Senate, where it is unlikely to receive enough support to overcome a filibuster from the Republican minority.

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