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PaperclipPerfector  1yr ago (text post)   29600 thread views

Culture War Roundup for the week of October 2, 2023

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And his record was clean before the DVRO?

As far the record exists in the case yes. Notionally he should have been disarmed when the DVRO was issued. The practical application of that would require the court/police to be aware of existing firearms (the person asking for the order might be aware, the person accused is not exactly incentivized to bring up their ownership) and then proactively disarm (expensive, dangerous) rather than simply ordering it be done. Keeping in mind that the DVRO was under state court and the possession is a federal offence. In some jurisdictions compliance can also be done by storing firearms at a club/FFL rather than having to sell off/surrender them to the police so even verifying compliance with the order has friction.

It shall be unlawful for any person[] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .

As for acquiring, the only thing stopping a 4473 from going through after the order is in effect is if the court that issued the order is tied into the state background check system or the national one to catch someone lying on question 21.i or the person under the restraining order answering that question truthfully. (All of question 21 on that form is basically an IQ check or cya documentation used to prosecute if you lie on it and then publicly admit to doing things that conflict with your answers on that form as in the recent case of a rather famous failson.) And of course it's entirely possible to acquire a firearm without a 4473 and in those circumstances the ability to verify that someone is not restricted is rather limited.

To get around that second problem some states have made it illegal to transfer a firearm without a 4473. And the way they enforce that has been... catching someone after the fact with incontrovertible proof they violated that law. That proof being rather difficult because most of those universal background check states still have various exemptions for gifts/inheritance/loans to avoid awkward things like having to stop at an FFL to let your friend "possess" your firearm during a day at the range. Yesterday's reasonable exception is today's loophole.

Excellent overview. DVROs can also be imposed as part of a standard practice whenever someone is charged with a DV crime. Defendants are then placed in an awkward position if they're asked whether they're following the court's order. There was court in Washington state that issued a ridiculously long and thorough decision on this issue, ruling that this type of practice was a clear violation of the defendant's right not to testify against themselves.

I'm in a state with universal background checks, and virtually all the guns that get recovered from crime scenes had been reported stolen eons ago. If the cops find a non-stolen gun, they nominally have the ability to retrace its journey by using the serial number to look up the FFL paperwork. In practice, they tend to find absurdly long gaps in the record. The guy with the gun can just say his uncle gave him the gun years ago, and it's near impossible for a prosecutor to refute that. The "family member" transfer exceptions are a huge loophole since a cousin can gift a gun to their cousin who gives it to their cousin etc. and even if that happened 100 times it would still be perfectly legal. Also, most states don't have universal background checks! So someone potentially could just say "I acquired this through a private sale when I was driving through Ohio" [Edit: woops, I was wrong about this h/t @The_Nybbler] and good luck refuting that.

So someone potentially could just say "I acquired this through a private sale when I was driving through Ohio" and good luck refuting that.

By Federal law, you can't legally buy a gun privately in a state you don't reside in. (This law should be overturned by Bruen but of course it will not be.)

You're correct, that was an error on my part. I'm now very curious as to how difficult to prove those cases. And since it's a federal prohibition and universal background checks are a state law, that would add another hurdle for enforcement.

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