How Much Freedom Are You Willing to Sacrifice in the Name of “Safety”?
This November, Maine voters will be faced with an age-old question — how much freedom are you willing to sacrifice in the name of “safety”?
Billionaire and ex-New York City Mayor Michael Bloomberg has used Maine’s Citizen’s Initiative Process to almost single-handedly fund a campaign to make his version of universal background checks the law of the land in the Pine Tree State.
Question 3 asks, “Do you want to require background checks prior to the sale or transfer of firearms between individuals not licensed as firearms dealers, with failure to do so punishable by law, and with some exceptions for family members, hunting, self-defense, lawful competitions, and shooting range activity?”
While to the average person this question seems fairly benign, the devil is truly in the details, as this legislation would criminalize activities that are ordinary and traditional in Maine.
The fine print of this legislation dictates exactly how, when, where, and with whom firearm owners and sportsmen may “exchange, sell and lend” their guns, with very strict penalties for breaking the law.
This is because Question 3 applies to all sales and transfers of a firearm. The definition of “transfer” under this law cites an existing statute, stating that “‘Transfer’ means to sell, furnish, give, lend, deliver or otherwise provide, with or without consideration.”
Except as exempted, a “transfer” would first require a federal background check performed by a federally licensed firearm dealer (“FFL”), completion of the necessary state and federal paperwork, and paying a fee anywhere between $30-$60. Just to loan a firearm to a friend, neighbor, or client, the gun owner and borrower would have to both go to an FFL to fill out the forms, pay the fee, and have the background check done. When the borrower is ready to return the loaned gun, the same procedure applies — a trip to the FFL, the paperwork, and payment of the $30-$60 fee to legally transfer the owner’s gun back.
To further complicate matters, because the procedure at the FFL’s doesn’t distinguish between sales and other kinds of “transfers” (like loans), before the initial transfer the owner should ideally have a notarized letter, clearly stating that the ownership or title of the firearm is not being relinquished.
There are a few exemptions which apply, including transfers between family members (which are further defined), temporary transfers occurring at a specified “established shooting range,” during a lawfully organized competition, during hunting, or in the “actual presence” of the transferer. But the actual wording of each exemption imposes several prerequisites and conditions to qualify, creating several traps that would be extremely easy for law-abiding gun owners to fall into.
For example, there’s an exemption for temporary transfers at an “established shooting range,” but the vast majority of target shooting in Maine occurs on the “back 40” or in gravel pits. Maine is an extremely large, rural state. Not everyone lives within a reasonable distance of, or has the resources to exercise their Second Amendment rights only at, a government-sanctioned range.
Similarly, the exemption for hunting is incredibly narrow. The gun owner would have to transfer the firearm while the transferee is in the act of hunting, and the transfer and all possession of the loaned gun must occur only in places where hunting is legal. This means that the gun owner would essentially have to follow their buddy to the tree stand, hand the firearm up into the tree and return before closing time to ensure that no hunting laws are broken. If the borrower is not hunting in a stand, he or she must be sure to never unintentionally enter a buffer zone around a building or enter land that is posted as “no hunting” — or that transfer is no longer legal. (And please note: this exemption has additional requirements.)
This illustrates how an exemption is more like a landmine, ripe with ways for hunters to become criminals. It severely restricts the ability of hunting guides in Maine to lend firearms to clients who may have limited access to firearms while traveling through states with strict gun-control laws.
Finally, while there is an exemption for a temporary transfer of a gun made in the “actual presence” of the gun lender, this applies only if the transfer and all possession of the gun takes place exclusively in the “actual presence” of the lender. “Actual presence” is not defined, so it is unclear how this exemption works in practice. Does the lender have to remain at an arm’s length from the borrower? Within eyesight? In the same room? This adds to the uncertainty of how much Question 3 will restrict normal and usual activities between gun owners and others.
And perhaps the most damning part of this law is the penalties for violations. First-time offenders would be charged with a Class D crime, which can carry a $2,000 fine and just under a year in prison, and the second offense would result in a Class C crime, which is a felony that carries a prison sentence of up to five years, a $5,000 fine, and (under federal law) the permanent loss of the right to own or possess a firearm.
Question 3 is intentionally a convoluted mess because it isn’t about stopping criminals. It’s about controlling gun owners, and making them fearful of executing their rights guaranteed by both the U.S. and Maine constitutions.
As Chris Cox, executive director of the NRA’s Institute for Legislative Action, recently said at a Maine Heritage Policy Center luncheon: “Friends, if you have to consult a lawyer before loaning a rifle to your cousin during deer season, you aren’t that free.”