SourwoodTom
Well-Known Member
Here is an email I sent to some friends earlier today. Haven't decided whether this is a good law, or a round-about way of eliminating the "Classified" section in forums like this:
I didn't say that it is necessarily bad law, but it does shift an onerous burden on the seller.
American jurisprudence is rooted in English Common Law. Common Law relies heavily on the "reasonable man standard". The example often used is someone running a red light - a reasonable driver would never run a red light and cause an accident. He would be responsible for damages/injury if he did. However, if that same driver suffered a mechanical or medical problem that prevented him from stopping, those mitigating circumstances would weigh in his favor in a court of law, civil or criminal. Ask yourself, What is reasonable?
We don't have unlimited rights, even those enumerated in the Constitution aren't without limit. We have the right to free speech, but we can't incite a riot or as Justice Holmes put it "yell fire in a crowded theater". We certainly have the right to vote freely in elections, but I'll bet everyone on this thread agrees that poll workers should be able to check IDs to determine if the voter is eligible. How many folks cast votes in the last election by telling a poll worker his name? That's how I did it - no check whether I was lying or not. We have the right to travel freely, but not at 100mph on a crowded freeway.
Take a car sale - your buyer has bloodshot eyes and slurs his speech, which could be from an illness, injury, or drunkenness - I'd argue you have an obligation to determine which before you hand him the keys. Asking if he's drunk might not cut it with a jury because you wouldn't know the truth. Suppose he kills a family on the way home. Your arse is in a sling.
This new law takes away the requirement for a buyer to obtain a permit from his Sheriff. Period, that's all. It doesn't absolve the seller of the liability of selling a pistol to a felon. Handing one's keys to a drunk who says he hasn't been drinking would certainly be actionable in almost any civil court, and likely in many criminal courts. Selling a gun to a felon, much the same. Did you do due diligence? What is due diligence? A felon is likely a felon because he's dishonest or disobeys the law - is believing a felon reasonable? Don't know.
Here's a cut-n-paste quote from my current ad on the Handguns Forum: " I'd like to see a NCDL and a permit (CCW/CWP or Purchase Permit). I'm not recording anything (it isn't required), just making sure some thug isn't buying something he couldn't legally buy elsewhere. Don't ask me to cut that corner - ain't happenin' "
Due diligence. If that individual has said permit, my checking and the statement above shows I've been reasonable in trying to assure that the buyer is legit. I've gone to a reasonable length to comply. Sure, he could show an invalid permit, but that's on him, not me. It is a step beyond just believing him. A voter could have a fake ID, but checking is reasonable, meeting the common law standard. Even though an ID can be fake, that doesn't mean that checking isn't reasonable. If I know the guy down the street beats his wife, permit or not, previous arrest or not, selling him a gun would put legal liability on me because a reasonable man should know that he might use the weapon illegally. The guy at the gun store who doesn't know the guy is a wife-beater isn't held to the same liability. Murky...
It is a complicated issue, no doubt. Just because you can sell someone a gun doesn't mean you should. If you do reasonable due diligence, you have a layer of protection. The permit simply gives a private seller an additional layer of legal protection regarding the sale.
Sell a guy (felon) a gun. He robs the local gas station. Says he got the gun from you in the plea bargain. Try to convince the jury that you did due diligence by asking if he's legal. You'll be charged with selling a firearm to a felon in most jurisdictions. Right or wrong, this law doesn't eliminate liability, it just shifts more of it to the seller. Plead no access to NICS? Doubt you'll win your case. If you check his permit, not having NCIS access would actually work in your favor. What else could you have "reasonably" done?
Again, I'm a proponent of Constitutional Carry and firearms rights. The permit system is redundant, especially for a licensed dealer and redundancy is cumbersome, time-consuming, and stupid. I'm not even sure I'm against this law. It does, however, make the private selling of a firearm a much more precarious action for an unlicensed gun seller if you take away that easy check.
The next logical step would be that since sellers have no way to check because a buyer can't obtain a permit (other than a CCW/CCP), would be to outlaw sales by anyone who isn't a licensed dealer with access to the Fed NICS database. I kinda like selling/buying on forums and classified. The permit makes it easier and gives me some piece of mind. I don't need money badly enough to sell a gun to a bad guy. Take that permit away, and how do we know who is buying?
The conspiracy guy in me wonders whether the broad support from licensed dealers is to avoid the redundancy of the double background check (which is silly), or whether they understand that it will force many to sell on consignment in a gun shop and pay the 15/20% consignment fee to the shopkeeper.
Alright - take your shots at me (figuratively, of course)
I didn't say that it is necessarily bad law, but it does shift an onerous burden on the seller.
American jurisprudence is rooted in English Common Law. Common Law relies heavily on the "reasonable man standard". The example often used is someone running a red light - a reasonable driver would never run a red light and cause an accident. He would be responsible for damages/injury if he did. However, if that same driver suffered a mechanical or medical problem that prevented him from stopping, those mitigating circumstances would weigh in his favor in a court of law, civil or criminal. Ask yourself, What is reasonable?
We don't have unlimited rights, even those enumerated in the Constitution aren't without limit. We have the right to free speech, but we can't incite a riot or as Justice Holmes put it "yell fire in a crowded theater". We certainly have the right to vote freely in elections, but I'll bet everyone on this thread agrees that poll workers should be able to check IDs to determine if the voter is eligible. How many folks cast votes in the last election by telling a poll worker his name? That's how I did it - no check whether I was lying or not. We have the right to travel freely, but not at 100mph on a crowded freeway.
Take a car sale - your buyer has bloodshot eyes and slurs his speech, which could be from an illness, injury, or drunkenness - I'd argue you have an obligation to determine which before you hand him the keys. Asking if he's drunk might not cut it with a jury because you wouldn't know the truth. Suppose he kills a family on the way home. Your arse is in a sling.
This new law takes away the requirement for a buyer to obtain a permit from his Sheriff. Period, that's all. It doesn't absolve the seller of the liability of selling a pistol to a felon. Handing one's keys to a drunk who says he hasn't been drinking would certainly be actionable in almost any civil court, and likely in many criminal courts. Selling a gun to a felon, much the same. Did you do due diligence? What is due diligence? A felon is likely a felon because he's dishonest or disobeys the law - is believing a felon reasonable? Don't know.
Here's a cut-n-paste quote from my current ad on the Handguns Forum: " I'd like to see a NCDL and a permit (CCW/CWP or Purchase Permit). I'm not recording anything (it isn't required), just making sure some thug isn't buying something he couldn't legally buy elsewhere. Don't ask me to cut that corner - ain't happenin' "
Due diligence. If that individual has said permit, my checking and the statement above shows I've been reasonable in trying to assure that the buyer is legit. I've gone to a reasonable length to comply. Sure, he could show an invalid permit, but that's on him, not me. It is a step beyond just believing him. A voter could have a fake ID, but checking is reasonable, meeting the common law standard. Even though an ID can be fake, that doesn't mean that checking isn't reasonable. If I know the guy down the street beats his wife, permit or not, previous arrest or not, selling him a gun would put legal liability on me because a reasonable man should know that he might use the weapon illegally. The guy at the gun store who doesn't know the guy is a wife-beater isn't held to the same liability. Murky...
It is a complicated issue, no doubt. Just because you can sell someone a gun doesn't mean you should. If you do reasonable due diligence, you have a layer of protection. The permit simply gives a private seller an additional layer of legal protection regarding the sale.
Sell a guy (felon) a gun. He robs the local gas station. Says he got the gun from you in the plea bargain. Try to convince the jury that you did due diligence by asking if he's legal. You'll be charged with selling a firearm to a felon in most jurisdictions. Right or wrong, this law doesn't eliminate liability, it just shifts more of it to the seller. Plead no access to NICS? Doubt you'll win your case. If you check his permit, not having NCIS access would actually work in your favor. What else could you have "reasonably" done?
Again, I'm a proponent of Constitutional Carry and firearms rights. The permit system is redundant, especially for a licensed dealer and redundancy is cumbersome, time-consuming, and stupid. I'm not even sure I'm against this law. It does, however, make the private selling of a firearm a much more precarious action for an unlicensed gun seller if you take away that easy check.
The next logical step would be that since sellers have no way to check because a buyer can't obtain a permit (other than a CCW/CCP), would be to outlaw sales by anyone who isn't a licensed dealer with access to the Fed NICS database. I kinda like selling/buying on forums and classified. The permit makes it easier and gives me some piece of mind. I don't need money badly enough to sell a gun to a bad guy. Take that permit away, and how do we know who is buying?
The conspiracy guy in me wonders whether the broad support from licensed dealers is to avoid the redundancy of the double background check (which is silly), or whether they understand that it will force many to sell on consignment in a gun shop and pay the 15/20% consignment fee to the shopkeeper.
Alright - take your shots at me (figuratively, of course)
