Shooting straight by knowing the law

Shooting straight by knowing the law

After shooting his mother four times in the head, Adam Lanza, 20, killed 20 students and six adults at Sandy Hook Elementary in Newtown, Conn., before shooting himself. One of the deadliest school shootings in U.S. history, the tragedy Dec. 14, 2012, horrified a nation. But it did more than that. The shooting sparked a debate as to whether there should be stricter gun laws and whether “assault” weapons like the Bushmaster .223 used by Lanza and William Spengler Jr., 62, to kill two volunteer firefighters in West Webster, N.Y, should be banned altogether.

“We can’t tolerate this any more. These tragedies must end. And to end them, we must change,” President Obama said in a Dec. 16 speech.

A package of gun-control measures signed into law by New York’s Gov. Andrew M. Cuomo on Tuesday, Jan. 15, suggests that change is indeed coming. But what form change might take is uncertain and could vary from state to state or even city to city. In light of this uncertainty, some U.S. citizens are choosing to act now.


The threat of stricter gun laws, which might include the ban of “assault” rifles altogether, has led to an increase in gun sales throughout the United States. Recently released FBI data shows that firearm background checks initiated through the National Instant Criminal Background Check System (NICS) increased in all 50 states from November to December, with the number of background checks in December 2012 registering the highest in any month since the system was started in 1998. The average increase per state was 41 percent, and 17 states recorded increases of at least 50 percent, led by Georgia, which processed 66 percent more background checks in December than it did in November. In Texas, the number of background checks rose from 149,821 in November to 239,956 in December 2012, the month of the Newtown tragedy. The December 2012 number is up by almost 100,000 from December 2011, which saw 154,482 background checks.

“Right after the shooting when (politicians) started talking about gun control, everything started flying off the shelf,” said Mike Smith, owner of Mike Smith Enterprises, a gun shop in Port Arthur. “Ever since the (Newtown) shooting, (AR-15-style) rifles have been sold out. Everybody is buying them up faster than they can make them right now. We’ve been sold out for weeks on end. Every gun store across the country is sold out of high-capacity pistols or semi-automatic AR-15-style rifles. The ammunition for (AR-15-style rifles) is sold out, the magazines for them are sold out, and a lot of the accessories for them are sold out.”

The price for AR-15-style rifles has almost doubled since the Sandy Hook shooting, according to Randy Leger, owner of Leger’s Shooting Range in Beaumont.

“The price of standard run of the mill AR-15-style rifles was probably between $800 and $1,000 on average,” Leger said. “After (the Sandy Hooks shooting) the price is now between $1,500 to $2,500 depending on the make, model, quality and availability of the weapon.”

“Assault” rifles on are selling for $2,500 on average, and one classified ad on the site reads, “Own a 2000 sq ft home for your guns”:

“I want your gun collection this house could be yours clear title! The house needs some work it’s appraised at 45k as is condition the roof is fine no leaks needs vinyl siding and new Sheetrock in few rooms and the electrical needs minimal to be brought back to code. … I’m interested in assault rifles pistols shotguns rifles tactical scopes safes it all adds up.”

The law

The assumption might be that many of these shoppers are anticipating a change in the law, making a purchase now under current law seem prudent. But what is the current law?

In Texas, there is no waiting period for purchasing a firearm. State registration of firearms is not required during a purchase from a vendor, nor is registration required in the case of firearm transfer during an owner-to-owner sale or inheritance.

To purchase a firearm, one must possess a valid state-issued ID and must be 18 to purchase a long-barrel rifle and 21 to purchase a handgun. The National Firearms Act in the United States sets a minimum length of 16 inches (40 cm) for rifle barrels and 18 inches (45 cm) for shotgun barrels. Examples of various classes of small arms generally considered long arms include, but are not limited to: rifles, shotguns, muskets, blunderbusses, carbines, wall guns and musketoons.

To purchase any weapon from a licensed dealer, one must fill out a form 4473 Firearm Transaction Record and submit to a background check through NICS or “Nicks,” an FBI instant background check using a crime database.

“Whenever anyone comes in to purchase any firearm — handgun, shotgun or anything — they fill out the 4473,” Smith said. “It’s an ATF form, and it records their name and information on it. It has a series of 12 questions that ask if you’re the actual purchaser of the firearm — probably the most important question. Additional questions have to do with your criminal history and residential status as a U.S. citizen.”

Smith said that once the form is completed and signed, the gun shop owner is required to call it in through NICS and check the purchaser’s name and criminal background.

“To fill out the form and call in the background check usually only takes 10 to 15 minutes,” he said. “Once they run your name through the system, the transaction is issued a Nicks number. (The NICS examiner) will tell us on the phone ‘proceed,’ ‘delayed’ or ‘denied.’ If it is a ‘proceed,’ then we sell the gun to the person, and they’re out of here.”

A “delayed” response from a NICS examiner can mean one of a many things. Someone may have had a similar name to someone not eligible, similar description, credit holds (lost/stolen credit cards), etc. By law, the firearm can be transferred within three business days (government business days) if the NICS examiner does not call back.

A “denied” response occurs when one has been flagged as a possibly ineligible purchaser of the firearm. Sometimes people who’ve only recently become eligible will be denied, and they are able to challenge the denial. Generally the dealer will have paperwork outlining the process for challenging the NICS ruling.

According to the NICS Section Federal Firearms Licensee Users Manual, “The Gun Control Act of 1968 (GCA), which established categories of persons who are prohibited from receiving a firearm, was enacted by Congress as part of an effort to control gun violence in the United States. As amended, the GCA prohibits the transfer of a firearm to any of the following:

• Persons who are convicted of a crime punishable by imprisonment for a term exceeding one year, even if the person received a shorter sentence.

• Persons who are fugitives from justice.

• Persons who are unlawful users of and/or addicted to any controlled substance.

• Persons who are adjudicated mental defective or involuntarily committed to a mental institution.

• Persons who are aliens illegally/unlawfully in the United States and nonimmigrant aliens (with certain limited exceptions).

• Persons who have been dishonorably discharged from the United States Armed Forces.

• Persons who have renounced their United States citizenship.

• Persons who are the subject of certain protection orders.

• Persons who have been convicted of a misdemeanor crime of domestic violence.

• Persons who are under indictment (information) for a crime punishable by imprisonment for a term exceeding one year.”

Gun shows

People who fall into one of these categories may not purchase a firearm from a licensed dealer like Smith but might still be able to make a purchase at a gun show, where the standard procedures that licensed dealers adhere to are not being followed by all merchants, according to Marsha McCartney, president of the Dallas-based North Texas Chapter of the Brady Campaign.

The Brady Campaign is a nonprofit organization with the stated mission “to enact and enforce sensible gun laws, regulations, and public policies through grassroots activism, electing public officials who support gun laws, and increasing public awareness of gun violence.” The campaign is named after James Brady, the former assistant to the president and White House press secretary who, after nearly being killed and becoming permanently disabled in an assassination attempt on President Ronald Reagan in 1981, became an ardent supporter of gun control.

“I can’t even imagine the number of guns leaving gun shows with no background check,” McCartney said. “No one should be able to sell a hundred guns at a gun show. Before (a purchaser at a gun show) can walk out with a gun, they need to have a background check. The licensed dealers at gun shows are doing background checks. Why shouldn’t a guy at the next table that has a hundred guns to sell have to do that?”

Only licensed gun dealers with their own inventory are required to do background checks in the state of Texas, according to Leger. While many of the sellers at gun shows may be licensed dealers, there are also private sellers who set up tables and sell their guns that do not have to perform background checks.

“The laws for private purchase vary from state to state,” Leger said. “Texas has a non-registration law. In other words, (guns) can be sold from individual to individual with no registration required. You can acquire a bill of sale if you want from both parties just to show it was a legitimate transaction. Other than that, there is no registration in Texas.”

“No-check” sales account for an estimated 40 percent of gun sales in the U.S., according to data collected by the National Institute of Justice.

“When you want a gun, there’s great responsibility,” McCartney said. “We lose 34 people to gun homicide in America every single day. If you buy a gun and take it to a gun show and sell it to someone you don’t know and you’re not going to do a background check, I don’t think that’s living up to your responsibility.”

McCartney described a recent trip that she made to a gun show in Dallas.

“I watched three young men walk from table to table and ask, ‘Do you have to do a background check?’ and they found a table where the man said, ‘No.’ And then they handed the phone that they were on to the guy that was selling the guns. Whoever was on (the other side of that) phone made the deal. (The men) paid cash and they walked out with three 9 mms in a grocery store sack.”

Straw purchases

The transaction McCartney described is called a straw purchase.

“Dealers are really told to be on the look out for the straw purchase attempt,” Leger said. “A straw purchase is a gun being purchased for somebody by another person — a friend, relative or whoever — in which the person wanting the gun can’t legally possess their own gun for some reason.”

Leger said that is important for dealers to be aware of the conversations of potential gun buyers to prevent these straw purchases from occurring.

“Listening to the chitter-chatter on the other side of the counter (can help you identify these attempted purchases),” he said. “If two people walk in and a guy makes a comment ‘There’s that pistol right there that you tried to buy that they turned you down on.’ I’m pretty much in on the fact that (the person he’s talking to) is not supposed to have a gun. So if the guy (who made the comment to the other guy) says ‘I’m going to go ahead and buy the gun,’ I’ll say, ‘I don’t think so.’


Class III weapons

 “Legally you can have a 16-inch barrel on a rifle and an 18-inch barrel on a shotgun,” said Smith, who is a licensed Class III dealer. “That’s the minimum length you can have for a regular gun. If you want it shorter than that you have to purchase a $200 tax stamp and do class III paperwork. There’s about a six-month wait period right now.”

Class III weapons include machineguns, short-barreled rifles, short-barreled shotguns, suppressors, any other weapons (AOWs) and destructive devices. Automatic machineguns are in the same category, Smith said, but are hard to come by.

“There are only so many in the country that are legally on the books that can be bought or sold on the civilian market,” he said. “There are way under a 100,000 guns right now, and they are held in really expensive private collections. Only really wealthy people are going to own such a thing, and they are going to wait a long time to get it. You can’t touch one for under $10,000. The average one is over $20,000.”

These automatic machineguns were all manufactured before 1986, Smith said.

“Back in ’86, (the government) cut it off so you couldn’t manufacture any more for the civilian market,” he said.

These weapons are regulated under the National Firearms Act, which imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. All NFA items must be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Private owners wishing to purchase an NFA item must obtain approval from the ATF, obtain a signature from the Chief Law Enforcement Officer (CLEO) who is the county sheriff or city or town chief of police, pass an extensive background check to include submitting a photograph and fingerprints, fully register the firearm, receive ATF written permission before moving the firearm across state lines, and pay a $200 tax.

“Right now it takes six to eight months for (ATF) to approve it,” Smith said. “(If you are approved) they know exactly what you own and where you live, but they don’t hardly check on you unless there is a reason to.”

AOWs include disguised devices such as pen guns, cigarette lighter guns, knife guns, cane guns and umbrella guns. Also included in the “any other weapon” definition are pistols and revolvers having smooth bore barrels designed or redesigned to fire a fixed shotgun shell.

“This is very limited stuff you hardly ever see,” Smith said. “They’re legal to own if you can find one and go through all the proper paperwork procedures, and require the $200 tax as well.”

The line is drawn when explosives come in to the picture, according to Smith.

“Explosives are out of the question,” he said.