The Inconvenience Stratagem – H.R. 8 & H.R. 1446

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A Defacto Ban is one in which, by the letter of the law, an item or action may not be expressly prohibited, but the implementation of the law makes it so by consequence. For example, if a municipal governing body makes it so a gun store must be 600 ft. away from any school owned, leased, or managed property, that rule does not ban gun stores. If however there are no properties within the municipal jurisdiction that are more than 600 ft. from a school owned, leased, or managed property… gun stores are banned. This is a tactic that has been tried in the past and, eventually, was struck down in court. But during the time the legal fight was happening (years) the sale of firearms was impossible in the jurisdiction, because nobody was allowed to sell based upon a known proximity.

Defacto Bans are one of a series of inconvenience tactics that attempt to remove an item or behavior by literally making it too annoying for anyone to reasonably do. Sin tax is another such tactic. Reducing available hours to an annoying and inappropriately low number for the general public to access is yet another. They do not ban an item, they impose a daunting number of obstacles that must be completed in order to make people choose not to pursuit getting it.

Neither H.R. 8 nor H.R. 1446 ban a single firearm, nor do they change the legal parameters for who, on paper, can purchase a firearm. That would be far too likely to rapidly run afoul of the constitution.

Instead, H.R. 8 makes every non-temporary, non-supervised, or non-emergency private firearm transfer have to run through NICS. A transfer may be more than just a sale, this can include a gift, borrowing, or inheritance. Right now federal and state laws prohibit the knowing transfer of a firearm to a prohibited person or a person you reasonably should know if prohibited. It is illegal and you can be charged for doing so.

H.R. 8 is the Universal Background Check that means every firearm transfer must now, by law (but without a reliable mechanism), must go through NICS or an equivalent state system for a background check. This is, by the way, something you as an individual seller can do for a nominal fee already at most gun stores if you feel so inclined. But H.R. 8 mandates it, it must be done for a legal transfer, with very rare circumstantial exemption.

It imposes an additional time, financial, and travel burden on both the seller and buyer (transferor and transferee) that could delay the process for days, making it take a second or subsequent trip or burdening the FFL to hold an item that isn’t theirs in their inventory and be responsible for it in the interim.

These are not inconsequential burdens, they are time and money. Balancing the off chance that you catch the one felon dumb enough to actually do this background check against the resource cost to non-prohibited individuals who will instead be unable to exercise their rights and its a loosing proposition.

But.. if it only saves one life, right? Disregarding lives saved by firearms of course.

And… NICS has the Brady Transfer Date so…

H.R. 1446 nullifies the Brady Transfer Date… Not by getting rid of it entirely but increasing the arduousness of exercising it and removing the burden of the background check from the government to complete onto the shoulders of the transferee. And making the whole thing take 20 business days to complete.

That’s right, effectively a month plus wait to get your firearm if NICS cannot be bothered to complete your background check.

If a submitted background check remains incomplete after 10 business days, then the prospective purchaser may submit a petition for a final firearms eligibility determination. If an additional 10 days elapse without a final determination, then the federal firearms licensee may transfer the firearm to the prospective purchaser.

Notice they slip extra actions on the part of the transferee into the system, starting the background check process isn’t enough to demand the system produce a result. You have to submit a second time, two week after the first time, and then wait two more weeks (plus holidays) before the background check can proceed to a transfer without a proceed or denial.

They have the audacity to call this the “Enhanced Background Checks Act of 2021.” Nothing is enhanced about this! It’s just NICS with a month to let it wait, instead of a week. Background Checks with a 4x Lazier Timeline Act of 2021, there… fixed it.

This is the week’s gun control push folks. Every article I’m clicking on keeps quoting the utter garbage “90% of Americans Support Background Checks” stat. Like that survey question wasn’t asked in the absolute most leading way possible, or that the average American even understands how the current NICS system works, in even the most basic terms.

No reputable policy maker would use this weak of a mode of inquiry to gauge informed support for a policy, but reputable is a strong word now isn’t it. What they are doing, their real goal, is making gun ownership too much hassle to deal with so fewer people will.

Remember, your constitutional right is subject to the fair working hours of NICS employees, now with fewer consequences on them if for failing to complete a check if all this garbage makes it to Biden’s desk. The current NICS at least holds the FBI accountable to an arguably reasonable timeline.

These only enhance the hassle. And that’s the point.