Syndicated by: Montana News
By: Marc Kelley
Several years ago, when I was just starting Marc Arms, I was faced with a decision on whether or not I should sell a firearm to an individual simply because I believed they were incapable of responsible gun ownership. For the record, this individual passed the NICS background check without any issues or delays. However, I just did not feel this individual was being totally honest with me. You will have to look long and hard to find a more ardent supporter of the Second Amendment than myself; however, I was raised to respect firearms and make gun safety the top priority. The responsibility of selling guns, brings with it many, much more in depth, considerations. The community of licensed firearms dealers is a fairly close knit community and I believe those of us who are willing to take on the responsibility of selling guns, take this responsibility very seriously. When I was first getting started, I had people around me I knew I could trust and were willing to help me, when I had questions. Marc Arms would simply not exist, if not for these individuals help and support.
One of these individuals is my friend Seth. After many years serving the public in law enforcement, my friend had developed unique outlook on life and on people. For years my friend has had his own Federal Firearms License and in fact, had transferred many firearms for me when I was still working as a nurse. When I retired from nursing, he was the one who helped me start my business. Not only is my friend a walking encyclopedia of gun knowledge, I can also always rely on his advice and clarity of thought, whenever I am faced with a difficult decision. When I called my friend and explained my situation and unease at selling a firearm to this customer, I told him, I don't want to be judgmental; but, I have reservations about providing a gun to this individual. True to his morality, my friend calmly told me, Marc, "if your not going to be judgmental about who you sell guns to….you shouldn't be in the business." These words rang true with me and I was grateful to have his insight. Now years later, I still feel the weight of the obligation to do what is right, regardless of the monitory gain associated with making a sale.
My friend Seth was the first individual who encouraged me to look at history, to get a better perspective on the effect gun laws have had in our country. Today, as we are bombarded by cries for "common sense " gun control, I believe we should once again, look at the laws we already have on the books and assess their effect on gun violence. Passing more laws which restrict the lawful gun owners rights, has not worked in the past and it will not work in the future. Criminals, by the very definition, do not follow the law and as long as our government chooses not to enforce the law and not to report information to the NICS Database, criminals will always have access to firearms.
In the State of Montana, if you are convicted of a felony, serve your time and petition the court for the return of your gun rights, it is possible for an individual, who was previously prohibited from possessing a firearm, to get their gun rights reinstated. Moreover, Montana does allow for the private transfer of a firearm from one individual to another, without an FBI, NICS background check. To imply these facts are in and of themselves, responsible for firearms winding up in the hands of criminals, is an overly simplistic view of the problem.
For those of us who have purchased a firearm or two, we are very familiar with the BATF form # 4473. This is this form which allows the FBI to conduct a NICS background check on an individual prior to purchasing a firearm. This form and for that matter, the NICS background check is one of the most misunderstood components of purchasing a firearm. Hopefully the following information, will help you better understand how the process is supposed to work.
The 4473, much like most government forms, appears daunting and complicated, very few people take the time to read it, but rather simply check off the boxes, sign the form and think nothing more about it. As someone who works with these forms everyday, I want to take a few minutes and explain why a background check on any buyer, is something you should insist on, when selling your personal firearms. I offer my customers the FREE service of performing a background check when they sell their firearms privately. Frankly, I can think of no reason anyone would willingly sell a firearm to an individual without first checking to see if they were prohibited from possessing that firearm.
In addition to your name, address, place of birth, anthropomorphic information, ethnicity, and race, the form 4473 asks eight questions related to your background and one question related to the purchase itself.
#1 Are you the ACTUAL buyer of this firearm?
This question is meant to prevent what is called a "straw purchase". A straw purchase is defined as "a criminal act in which a person who is prohibited from buying firearms uses another person to buy a gun on their behalf." The penalty for making a straw purchase is: 10 years in prison and up to a $ 250,000.00 fine.
#2 Are you under INDICTMENT or information in any court for
a FELONY or other crime for which the judge COULD
imprison you for more than 1 year?
This question is in and of itself, very straight forward. The punishment for misrepresenting this information is the same as making a straw purchase.
# 3 Have you been CONVICTED in any court of a FELONY, or
other crime for which the judge COULD have imprisoned
you for more than 1 year, even if you received a SHORTER
SENTENCE including probation.
Once again this question is very straight forward and anyone who has been convicted of a crime fitting these definitions, should certainly know the answer to this question.
# 4 Are you a FUGITIVE from Justice?
If you don't know the answer to this question, we truly have a problem.
# 5 Are you an unlawful user of, or addicted to, marijuana or
any depressant, stimulant, narcotic drug or any other
This question was redefined with the last revision to the form 4473, made in 2016. The revision, spoke specifically to individuals residing in States that legalized or decriminalized marijuana for medical or recreational use.
#6 Have you ever been ADJUDICATED as a mental defective OR have
you ever been committed to a mental institution?
Of all of the questions on the form 4473, It is this question which raises the most questions and is in my opinion very difficult to understand. To be ADJUDICATED as a mental defective requires this term be defined for legal purposes. On January 2, 2014, under the Obama Administration, US Attorney General, Eric Holder, amended the US Department of Justice definition of "adjudicated as a mental defective" and "committed to a mental institution", as follows: Any person found incompetent to stand trial, found not guilty by reason of mental disease or defect or has been found guilty, but mentally ill. Adjudication requires a court action which upholds an individuals right to "due process." This action requires affirmation by a Medical Doctor or Mental Health Professional directly to the courts. The problem with this process lays with our medical professional themselves. During my time as an Emergency Department RN, I provided care for countless patients, brought to the ER by law enforcement or their families, requesting a "psychological evaluation". I can count on one hand the number of individuals who were actually involuntarily admitted to a psychiatric center. Sadly, this is the case simply because there are very few funds available for mental healthcare. A hospital is a business and currently there is no profit, in caring for the mentally ill.
# 7 Have you been discharged from the Armed Forces under
In this question we find the problem clearly illustrated in the November 5, 2017, Sutherland Springs, Texas shooting. Even after being found guilty of domestic violence, the USAF chose not to dishonorably discharge the future mass murderer, but rather hand down a "Bad Conduct" discharge. For the average person, it may well be difficult to discern the difference between the two discharges; however, in this case 26 people died, simply because of our own governments terminology.
# 8 Are you subject to a court order restraining you from
harassing, stalking, or threatenThreatening your child or an intimate
partner or child of such partner?
#9 Have you ever been CONVICTED in ANY court of a
misdemeanor crime of domestic violence?
Questions 8 and 9 are essentially asking for the same information and once again, if our own government would simply report these convictions, the NICS data base would prevent violent individuals from purchasing firearms.
As a Federal Firearms License holder, I am subject to a great many regulations and laws governing firearms. In addition to these constraints, a licensed FFL has a great deal of latitude with regard to the transfer of a firearm to an individual. Everyday I meet new people as they call and stop by to inquire about purchasing firearms. I enjoy talking with people who appreciate firearms or are looking to learn more about them. It is during these conversations, I have the opportunity to learn about my customers. Why they want a gun, how they intend to use a firearm as well as their level of competence and ability to responsibly own a firearm. Sadly, here is where I got the title for this article. From time to time, I find myself sitting across the table from someone, who must certainly believe, I am the dumbest person of Gods earth. I have heard some of the most ridiculous stories about why an individual is unwilling to undergo a NICS background check. Everything from "my brother and I have the same name and he has been in trouble with the law and I am always the one who gets blamed for his mistakes, so I just don't do it." Or, the oldie but a goodie, "I don't like cops, so I don't talk to them." To my favorite, "I don't trust the government and I don't want them to know what I have. Can't you sell me one of your personal firearms without a background check?"
Make no mistake, whether you purchased your firearm from a private individual or a licensed dealer, if that weapon is used in the commission of a crime, you will get a visit from law enforcement and you will have to answer some very difficult questions. Just how with law enforcement know to to visit, you might ask, the answer is simple. When a firearm ships from the manufacturer, it must ship to a licensed FFL dealer. If that firearm is used in the commission of a crime and recovered by law enforcement, their first call will be the the ATF's National Tracing Center in Kearneysville, West Virginia. The ATF Tracing Center will contact the manufacturer requesting the original FFL holder who received the firearm. With this information, the ATF will contact that FFL asking two questions:
#1 Do you have this firearm in your possession?
#2 Who did you sell this firearm to?
FFL license holders are required to maintain their records in what is called their Acquisition / Disposition log, for a period of 20 years. The A&D book, as it is ofter referred to contains the name and address of the person who is now responsible for that firearm. From here, it is a simple case of following the firearm from person to person, always asking the same two questions. It is this system which allows law enforcement to so quickly identify if a firearm was used in the commission of a crime, was in fact purchased legally. Nothing could illustrated this process better than the December 2, 2015 attack in San Bernardino, Ca. Syed Farook and his wife Tashfeen Malik killed 14 people as they attended a Christmas Party. The ATF was able to confirm thru the Tracing Center, the firearms used in this attack were legally purchased by Enrique Marquez Jr. In turn Marquez sold the firearms privately to Farook and Malik. With in days of the shooting, Marquez was arrested and charged with "providing material support for terrorism". In a plea agreement to avoid the death penalty, Marquez agreed to plead guilty and faced a sentence of 25 years to life in prison and a $ 500.000.00 fine.
Securing a background check for the purchase of a firearm, IS NOT gun registration. The purpose is to assess the individuals legal status to possess a firearm. If you are going to own firearms, you have an obligation to see to it, those firearms DO NOT wind up in the hands of someone hell bent on committing violence. There are many who believe, passing more gun laws will decrease gun violence. From my perspective I would like to see us enforce the laws which are already on the books. I would like to see the NICS data base reflect current information on individuals who are prohibited from owning firearms and finally, I would like to see our own government act responsibly. A decision must be made, are we indeed a nation of law and order, or can individual states pick and choose the laws they enforce. Its not just about guns, but rather, it is about personal responsibility.