Bloomberg, Bennet and gun control

by Dave Kopel

Who Said you Said, Oct. 04, 2010

New York Mayor Michael Bloomberg has endorsed U.S. Michael Bennet, D-Colo., and, according to Politico, planned to hold a fundraiser for him in September. The Bennet campaign declined to answer questions about Bloomberg's support, according to Fred Brown, writing in The Denver Post.

Why does Bloomberg support Bennet? Perhaps one reason is that Bennet supports Bloomberg on gun control. Bennet is co-sponsor of Bloomberg's flagship gun-control bill in Congress, Senate Bill 843. In a CNN interview earlier this year, Bloomberg cited Bennet's backing of the bill [at 2:25 of the video above].

Bloomberg is the founder and funder of what is today's major gun control lobby, Mayors Against Illegal Guns (MAIG), of which Denver Mayor John Hickenlooper is Colorado's only member.

Overall, Bennet's voting record on the Second Amendment has been standard for a Rocky Mountain Democrat: in favor of some pro-gun measures which attracted strong bipartisan support; but also in favor of Supreme Court Justices Sonia Sotomayor and Elena Kagan, who were opposed by the NRA and other right-to-arms groups.

Where Bennet is distinctive is in his co-sponsorship of the Bloomberg bill. Between the Mississippi River and the Pacific Ocean, S. 843 has not a single co-sponsor, except for Bennet.

The bill is sponsored by Sen. Frank Lautenberg, D-N.J., who has long been the most aggressive gun control advocate in the Senate. For example, Lautenberg has sponsored legislation to outlaw the practice in Colorado and 39 other states of issuing concealed handgun carry permits to adults who pass a background check and a safety class.

Like Bennet, all 16 co-sponsors of S. 843 are Democrats. The co-sponsor list amounts to an honor roll of the Senate's staunchest gun control advocates, such as Dianne Feinstein of California, Charles Schumer of New York, and Jack Reed of Rhode Island. The two Senate newcomers who are cosponsors are appointed Sens. Kirsten Gillibrand of New York, and Bennet.

The House parallel version of S. 843, by the way, is H.R. 2243. Its lone Colorado cosponsor is U.S. Rep. Diana DeGette, D-Colo.

S. 843 is known as the "Gun Show Background Check Act of 2009," but this is not entirely accurate. To the contrary, three-quarters of the bill has nothing to do with background checks. Instead, it sets up the foundation for a national registration system for guns sales, including sales which are conducted in retail stores by licensed firearms dealers, not at gun shows.

In order to understand how far-reaching the Bloomberg-Bennet bill is, let's quickly summarize the legal background.

Under current federal law, the laws for selling guns at gun shows are exactly the same as for selling guns anywhere else. Anyone who is "engaged in the business," as the federal statute puts it, of selling firearms must have a Federal Firearms License; the license is issued by the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) after a background check.

Most gun show sales are conducted by Federal Firearms Licensees (FFLs). The reason is that at a weekend gun show, the FFLs can see many more potential customers than might walk through the doors of their small store all week. In Colorado, when the FFLs sell at a gun show on a Saturday, or from their storefront on a Tuesday, they must first obtain authorization from the Colorado Bureau of Investigation (CBI).

They call the CBI, or contact it via computer, and provide the buyer's name and identification. An hour or more later, the CBI will complete its computerized background check, and authorize or deny the sale.

In the video above, Bloomberg claims [starting at 0:51] that "a dealer could take all of his or her inventory, and go to a gun show, and sell it without the background checks." This is absolutely false. Section 922(t) of volume 18 of the U.S. Code creates the National Instant Check System. There is no exception for dealers who sell their inventory at gun shows.

When conducting the sale, the FFL also makes the buyer fill out the federal Form 4473. This creates a record of information about the buyer, such as his race and address. It also records which particular gun was purchased. The 4473 forms are permanently retained by the dealer, and are available for inspection when needed by law enforcement. Federal law forbids the centralized compilation of 4473 forms, since this would amount to national gun registration.

In most of the United States, but not Colorado, the rules for private citizens selling guns are the same at gun shows as everywhere else. For example, let's say you are not in "engaged in the business" of selling guns. But you want to sell a couple of your guns to pay for your family's summer vacation. So you sell two rifles to a friend in your hunting club. You don't have to call the government for permission to consummate the sale, nor do you have to fill out the federal paperwork. The same is true if you sell the two rifles at a gun show.

In Colorado, however, the voters in 2000 chose to impose special restrictions on gun shows. The campaign for the special restrictions was based primarily on the inaccurate claim that the non-existent "gun show loophole" was responsible for the Columbine High School murders. Bloomberg repeats this canard at 2:05 of the video above.

As a result, Colorado gun shows are subject to restrictions not applicable to sales elsewhere. In Colorado, a casual one-time seller at a gun show must get the sale approved by the Colorado Bureau of Investigation. He does so by asking a FFL to contact the CBI, and conduct the background check.

The 2000 Colorado law is simple and short. It defines a gun show, and mandates the background check. It does not require any extra paperwork, or impose any new burdens on licensed firearms dealers.

Undoubtedly if Bloomberg had chosen to push a federal copy of the Colorado law, he would have attracted more support from the Colorado congressional delegation.

However, S. 843 goes vastly beyond Colorado's 2000 law.

First, the Bloomberg-Bennet bill gives federals official the unilateral power to tax and regulate gun shows out of existence.

Gun show promoters do not sell guns. The promoters simply operate the shows, renting table space to the people who do sell guns.

The Bloomberg-Bennet S. 843 would give the U.S. Attorney General unlimited power to impose fees on gun show operators. An anti-gun Attorney General--such as current Attorney General Eric Holder--could make the fees so exorbitant that no one could operate a gun show.

S. 843 also gives the Attorney General unlimited power to impose regulations on gun show promoters. Again, the regulations could be so onerous, time-consuming, and complex that many gun shows would be driven out of business.

Further, S. 843 requires every gun show operator to be registered with the federal government. The Attorney General could require that lengthy registration forms be filled out every week that the promoter wants to put on a gun show. If the Attorney General delayed the processing of registration forms, the promoter would be, at best, in a legal limbo as to whether going forward with the gun show as a crime or not.

S. 843 allows repetitive, no-cause inspections of promoter records. For BATFE agents in the mood to harass a particular promoter, this means that a promoter could be inspected every month, every week, or every day. In practice, the inspections could cripple the promoter's business; almost all promoters are small businesses with few employees. At least one employee would have to be taken away from business operations whenever the inspectors show up; frequent inspections--with no requirement that the inspection be part of a bona fide criminal investigation--could make it difficult or impossible for the promoter to conduct the normal work of his business.

How about a licensed firearms dealer (FFL) who never sets foot inside a gun show? He conducts all his sales from his store. The Bloomberg bill hugely increases various prison terms that can be imposed on licensed dealers for paperwork violations. This has nothing to do with gun shows.

The third key component of the Bloomberg-Bennet bill is to take major steps towards national gun registration. Under the Bloomberg bill, every person who sells a gun just once at a gun show can be put in a permanent federal database.

Bloomberg's S. 843 mandates that the gun show promoter keep a record of that person, and allows the federal government to collect those records.

So anyone who rented one table one time to pay for his family's summer vacation could end up in a permanent federal database.

Besides capturing the names of the sellers, the Bloomberg-Bennet proposal has a system for collecting data about the buyers. Bloomberg-Bennet authorizes additional regulations for mandatory reporting of all sales by anyone (including FFLs) at a gun show. This information could go far beyond the information in the 4473 forms. The extra information could include how often the seller had used the gun, if the gun had ever been used for self-defense, where the seller obtained the gun, what the buyer planned to do with the gun, how the buyer planned to store the gun, and much more.

The Bloomberg-Bennet bill says that the names of gun buyers are not supposed to be reported, but once the centralized national registration system for guns is in place, then Mayor Bloomberg and his proxies can be expected to start demanding the removal of the "loophole" about names.

Bloomberg-Bennet poses a particular threat to the Colorado Gun Collectors Annual Gun Show. This show, which takes place annually one weekend in May, is one of the major collectors shows in the United States, and draws attendees from the whole country.

"Curios and relics" are a special class of collectible firearms. Legally, a gun is only a "curio and relic" if BATFE puts the model on its curio and relics list, or if it is over 50 years old. A typical curio and relic might be a special, limited production gun which commemorative engraving. For obvious reasons, curios and relics tend to be more expensive than standard firearms, and they are rarely used in crime. The 2000 Colorado law specifically states that it does not apply to transfer of curios and relics. At the Colorado Gun Collectors Annual Gun Show, nearly everything on sale is a curio or relic.

These days in Colorado, the "instant" background check can take several hours, and sometimes much more. That perhaps is not a great problem for a Coloradan buying a gun at Dick's Sporting Goods, who can come back the next day to pick up the gun. But it would be a huge problem from Collectors Show--if a person from Illinois wants to buy a gun a 1 p.m. on Sunday, has a 7 p.m. flight out of Denver International Airport, and then got told that the background check could not be completed until 6:30.

The Colorado exemption for curio and relics is sensible. Bloomberg-Bennet has no such exemption, and might therefore have a very harmful impact on the annual Collectors Show.

According to the anti-gun lobbies, special new laws against gun shows are necessary because gun shows are shopping bazaars for criminals. For example, Arnie Grossman, head of the Colorado affiliate of the Brady Campaign, once told The Denver Post that "most guns used for criminal purposes are purchased at guns shows."

Not true, according to federal government data, and other sources. The 2001 federal Bureau of Justice Statistics (BJS) report Firearms Use by Offenders found that only about 1 percent of U.S. crime guns come from gun shows, and 0.7% came from flea markets. The BJS study was based on personal interviews with 18,000 prison inmates in 1997, and was the largest such study ever conducted by the federal government.

The 1.7% from guns shows and flea markets was tiny compared to where the vast majority of criminal guns came from: "friends or family" or "Got on the street/illegal source."

The Bureau of Justice Statistics report was consistent with previous federal studies. A June 2000 federal study, Federal Firearms Offenders, 1992-98, found only 1.7 percent of federal prison inmates obtaining their gun from a gun show (plus 1.5 percent from a flea market).

Similarly, a National Institute of Justice (NIJ) report, released in December 1997, showed less than 2 percent of criminal guns come from gun shows. (Homicide in Eight U.S. Cities, page 99.)

All these findings are consistent with a mid-1980s study for the NIJ, which investigated the gun purchase and use habits of convicted felons in 12 state prisons. The study (later published as the book Armed and Considered Dangerous) found that gun shows were such a minor source of criminal gun acquisition that they were not even worth reporting as a separate figure.

At the November 1999 meeting of the American Society of Criminology, a Michigan State University study of youthful offenders in Michigan reported that only 3 percent of the youths in the study had acquired their last handgun from a gun show. (Sean Varano, Tracy O'Connell, Todd Bietzel, Timothy Bynum, "Patterns in Gun Acquisition and Use by Incarcerated Youthful Offenders in Michigan.")

Professors Mark G. Duggan, Randi Hjalmarsson, and Brian Jacob conducted a gun show study for the National Bureau of Economic Research: "The Effect of Gun Shows on Gun-Related Deaths: Evidence from California and Texas" (2008). The authors found no evidence that the holding of a gun show contributed to increased homicide or suicide in the four weeks following a gun show.

Portions of this article first appeared in "America's 1st Freedom," a NRA member magazine.

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