I

106TH CONGRESS

1ST SESSION H. R. 2122

To require background checks at gun shows, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 10, 1999

Mr. MCCOLLUM (for himself and Mr. HYDE) introduced the following bill;

which was referred to the Committee on the Judiciary

A BILL

To require background checks at gun shows, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Mandatory Gun Show

5 Background Check Act’’.

6 SEC. 2. MANDATORY BACKGROUND CHECKS AT GUN

7 SHOWS.

8 (a) FINDINGS.—Congress finds that—

9 (1) more than 4,400 traditional gun shows are

10 held annually across the United States, attracting

11 thousands of attendees per show and hundreds of
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1 Federal firearms licensees and nonlicensed firearms

2 sellers, the vast majority of whom are law-abiding

3 individuals with no desire to participate in criminal

4 transactions;

5 (2) traditional gun shows, as well as flea mar6 kets and other organized events, at which a large

7 number of firearms are offered for sale by Federal

8 firearms licensees and nonlicensed firearms sellers,

9 form a significant part of the national firearms mar10 ket;

11 (3) firearms and ammunition that are exhibited

12 or offered for sale or exchange at gun shows, flea

13 markets, and other organized events move easily in

14 and substantially affect interstate commerce;

15 (4) gun shows, flea markets, and other orga16 nized events at which firearms are exhibited or of17 fered for sale or exchange, provide a convenient and

18 centralized commercial location at which firearms

19 may be bought and sold, often without background

20 checks and without records that enable gun tracing;

21 (5) at gun shows, flea markets, and other orga22 nized events at which guns are exhibited or offered

23 for sale or exchange, criminals and other prohibited

24 persons can obtain guns without background checks
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1 and can use such guns that cannot be traced to later

2 commit crimes;

3 (6) firearms associated with gun shows have

4 been transferred illegally to residents of another

5 State by Federal firearms licensees and nonlicensed

6 firearms sellers, and have been involved in subse7 quent crimes including drug offenses, crimes of vio8 lence, property crimes, and illegal possession of fire9 arms by felons and other prohibited persons; and

10 (7) Congress has the power, under the inter11 state commerce clause and other provisions of the

12 Constitution of the United States, to ensure, by en13 actment of this section, that criminals and other

14 prohibited persons do not obtain firearms at gun

15 shows, flea markets, and other organized events.

16 (b) DEFINITIONS.—Section 921(a) of title 18, United

17 States Code, is amended by adding at the end the fol18 lowing:

19 ‘‘(35) The term ‘gun show’ means an event which is

20 sponsored to foster the collecting, competitive use, sport21 ing use, or any other legal use of firearms, and—

22 ‘‘(A) at which 50 or more firearms are offered

23 or exhibited for sale, transfer, or exchange, if 1 or

24 more of the firearms has been shipped or trans-
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1 ported in, or the event otherwise affects, interstate

2 or foreign commerce; and

3 ‘‘(B) at which there are not less than 10 fire4 arm vendors.

5 ‘‘(36) The term ‘gun show organizer’ means any per6 son who organizes or conducts a gun show.

7 ‘‘(37) The term ‘gun show vendor’ means any person

8 who, at a fixed, assigned, or contracted location, exhibits,

9 sells, offers for sale, transfers, or exchanges 1 or more

10 firearms at a gun show.’’.

11 (c) REGULATION OF FIREARMS TRANSFERS AT GUN

12 SHOWS.—

13 (1) IN GENERAL.—Chapter 44 of such title is

14 amended by adding at the end the following:

15 ‘‘§ 931. Regulation of firearms transfers at gun shows

16 ‘‘(a)(1) A person who is not a licensed importer, li17 censed manufacturer, or licensed dealer, and who desires

18 to be registered as an instant check registrant shall submit

19 to the Secretary an application which—

20 ‘‘(A) contains a certification by the applicant

21 that the applicant meets the requirements of sub22 paragraphs (A) through (D) of section 923(d)(1);

23 and

24 ‘‘(B) contains a photograph and fingerprints of

25 the applicant; and
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1 ‘‘(C) is in such form as the Secretary shall by

2 regulation prescribe.

3 ‘‘(2)(A) The Secretary shall approve an application

4 submitted pursuant to paragraph (1) which meets the re5 quirements of paragraph (1). On approval of the applica6 tion and payment by the applicant of a fee of $100 for

7 3 years, and upon renewal of valid registration a fee of

8 $50 for 3 years, the Secretary shall issue to the applicant

9 an instant check registration, and advise the Attorney

10 General of the United States of the same, which entitles

11 the registrant to contact the national instant criminal

12 background check system established under section 103

13 of the Brady Handgun Violence Prevention Act for infor14 mation about any individual desiring to obtain a firearm

15 at a gun show from any transferor who has requested the

16 assistance of the registrant in complying with subsection

17 (c) with respect to the transfer of the firearm, and receive

18 information from the system regarding the individual, dur19 ing the 3-year period that begins with the date the reg20 istration is issued.

21 ‘‘(B) The Secretary shall approve or deny an applica22 tion submitted pursuant to paragraph (1) within 60 days

23 after the Secretary receives the application. If the Sec24 retary fails to so act within such period, the applicant may
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1 bring an action under section 1361 of title 28 to compel

2 the Secretary to so act.

3 ‘‘(3) An instant check registrant shall keep all

4 records or documents which the registrant collects pursu5 ant to this section during a gun show at a premises, or

6 a portion thereof designated by the registrant, that is open

7 for inspection by the Secretary. The Secretary shall estab8 lish by regulation the procedure for the inspection, at a

9 premises or a gun show, of the records required to be kept

10 under this section in a manner for a registrant that is

11 identical to the same procedural rights and protections

12 specified for a licensee under subsections (g)(1)(A),

13 (g)(1)(B), and (j) of section 923. An instant check reg14 istrant shall remit to the Secretary all records required

15 to be kept by the registrant under this subsection when

16 the registration is no longer valid, has expired, or has been

17 revoked.

18 ‘‘(4)(A) This subsection shall not be construed—

19 ‘‘(i) as creating a cause of action against any

20 instant check registrant or any other person, includ21 ing the transferor, for any civil liability; or

22 ‘‘(ii) as establishing any standard of care.

23 ‘‘(B) Notwithstanding any other provision of law, ex24 cept to give effect to subparagraph (C), evidence regarding

25 the use or nonuse by a transferor of the services of an
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1 instant check registrant under this section shall not be ad2 missible as evidence in any proceeding of any court, agen3 cy, board, or other entity for the purposes of establishing

4 liability based on a civil action brought on any theory for

5 harm caused by a product or by negligence.

6 ‘‘(C)(i) Notwithstanding any other provision of law,

7 a person who is—

8 ‘‘(I) an instant check registrant who assists in

9 having a background check performed in accordance

10 with this section;

11 ‘‘(II) a licensee who acquires a firearm at a gun

12 show from a nonlicensee, for transfer to another

13 nonlicensee in attendance at the show, for the pur14 pose of effectuating a sale, trade, or transfer be15 tween the 2 nonlicensees, all in the manner pre16 scribed for the acquisition and disposition of fire17 arms under this chapter; or

18 ‘‘(III) a nonlicensee disposing of a firearm, who

19 utilizes the services of an instant check registrant

20 pursuant to subclause (I) or a licensee pursuant to

21 subclause (II),

22 shall be entitled to immunity from a civil liability action

23 as described in this subparagraph.

24 ‘‘(ii) A qualified civil liability action may not be

25 brought in any Federal or State court. The term ‘qualified
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1 civil liability action’ means a civil action brought by any

2 person against a person described in clause (i) for dam3 ages resulting from the criminal or unlawful misuse of the

4 firearm by the transferee or a third party, but shall not

5 include an action—

6 ‘‘(I) brought against a transferor convicted

7 under section 924(h), or a comparable or identical

8 State felony law, by a party directly harmed by the

9 transferee’s criminal conduct, as defined in section

10 924(h); or

11 ‘‘(II) brought against a transferor for negligent

12 entrustment or negligence per se.

13 ‘‘(4) A registration issued under this subsection may

14 be revoked pursuant to the procedures provided for license

15 revocations under section 923.

16 ‘‘(b) It shall be unlawful for any person to organize

17 or conduct a gun show unless the person—

18 ‘‘(1) registers with the Secretary in accordance

19 with regulations promulgated by the Secretary,

20 which shall not require the payment of any fee for

21 such registration;

22 ‘‘(2) before commencement of the gun show,

23 records and verifies the identity of each individual

24 who is to be a gun show vendor at the gun show by

25 examining, but not retaining a copy of, a valid iden-
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1 tification document (as defined in section

2 1028(d)(1)) of the individual containing a photo3 graph of the individual; and

4 ‘‘(3) maintains a copy of the records described

5 in paragraph (2) at the permanent place of business

6 of the gun show organizer for such period of time

7 and in such form as the Secretary shall require by

8 regulation.

9 ‘‘(c)(1) If, at a gun show or the curtilage area of a

10 gun show, a person who is not licensed under section 923

11 makes an offer to another person who is not licensed

12 under section 923 to sell, transfer, or exchange a firearm

13 that is accessible to the person at the gun show or in the

14 curtilage area of the gun show, and such other person,

15 at the gun show or the curtilage area of the gun show,

16 indicates a willingness to accept the offer, it shall be un17 lawful for the person to subsequently transfer the firearm

18 to such other person, unless—

19 ‘‘(A) the firearm is transferred through a li20 censed importer, licensed manufacturer, or licensed

21 dealer in accordance with paragraph (2)(B) and oth22 erwise in accordance with law; or

23 ‘‘(B)(i) before the completion of the transfer,

24 an instant check registrant contacts the national in25 stant criminal background check system established
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1 under section 103 of the Brady Handgun Violence

2 Prevention Act;

3 ‘‘(ii)(I) the system provides the registrant with

4 a unique identification number; or

5 ‘‘(II) 72 hours have elapsed since the registrant

6 contacted the system, and the system has not noti7 fied the registrant that the receipt of a firearm by

8 such other person would violate subsection (g) or (n)

9 of section 922; and

10 ‘‘(iii) the registrant notifies the person that the

11 registrant has complied with clauses (i) and (ii), or

12 of any receipt by the registrant of a notification

13 from the national instant criminal background check

14 system established under section 103 of the Brady

15 Handgun Violence Prevention Act that the transfer

16 would violate section 922 or State law; and

17 ‘‘(iv) the transferor and the registrant have

18 verified the identity of the transferee by examining

19 a valid identification document (as defined in section

20 1028(d)(1) of this title) of the transferee containing

21 a photograph of the transferee.

22 ‘‘(2)(A) The rules of paragraphs (2), (3), and (4) of

23 section 922(t) shall apply to firearms transfers assisted

24 by instant check registrants under this section in the same
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1 manner in which such rules apply to firearms transfers

2 made by licensees.

3 ‘‘(B)(i) For purposes of section 922(t)(1)(B)(ii), the

4 time period that shall apply to the transfer of a firearm

5 as described in paragraph (1) of this subsection shall be

6 72 hours.

7 ‘‘(ii) The licensee or registrant may personally deliver

8 or ship the firearm to the prospective transferee in accord9 ance with clause (iii) if the gun show has terminated,

10 and—

11 ‘‘(I)(aa) 72 consecutive hours has elapsed since

12 the licensee or registrant contacted the system from

13 the gun show and the licensee or registrant has not

14 received notification from the system that receipt of

15 a firearm by the prospective transferee would violate

16 subsection (g) or (n) of section 922 or State law; or

17 ‘‘(bb) the licensee or registrant has received no18 tification from the system that receipt of a firearm

19 by the prospective transferee would not violate sub20 section (g) or (n) of section 922 or State law; and

21 ‘‘(II) State and local law would have permitted

22 the licensee or registrant to immediately deliver the

23 firearm to the prospective transferee if the condi24 tions described in item (aa) or (bb) had occurred

25 during the gun show.
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1 ‘‘(iii)(I) The licensee may personally deliver the fire2 arm to the prospective transferee at a location other than

3 the business premises of the licensee, without regard to

4 whether the location is in the State specified on the license

5 of the licensee, or may ship the firearm by common carrier

6 to the prospective transferee.

7 ‘‘(II) The registrant may personally deliver the fire8 arm to a prospective transferee who is a resident of the

9 State of which the registrant is a resident, or may ship

10 the firearm by common carrier to such a prospective trans11 feree.

12 ‘‘(3) An instant check registrant who agrees to assist

13 a person who is not licensed under section 923 in com14 plying with subsection (c) with respect to the transfer of

15 a firearm shall—

16 ‘‘(A) enter the name, age, address, and other

17 identifying information on the transferee (or, if the

18 transferee is a corporation or other business entity,

19 the identity and principal and local places of busi20 ness of the transferee) as the Secretary may require

21 by regulation into a separate bound record;

22 ‘‘(B) record the unique identification number

23 provided by the system on a form specified by the

24 Secretary;
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1 ‘‘(C) on completion of the functions required by

2 paragraph (1)(B) to be performed by the registrant

3 with respect to the transfer, notify the transferor

4 that the registrant has performed such functions;

5 and

6 ‘‘(D) on completion of the background check by

7 the system, retain a record of the background check

8 as part of the permanent business records of the

9 registrant.

10 ‘‘(4) This section shall not be construed to permit or

11 authorize the Secretary to impose recordkeeping require12 ments on any vendor who is not licensed under section

13 923.

14 ‘‘(d) If, at a gun show or the curtilage area of a gun

15 show, a person who is not licensed under section 923

16 makes an offer to another person who is not licensed

17 under section 923 to sell, transfer, or exchange a firearm

18 that is accessible to the person at the gun show or in the

19 curtilage area of the gun show, and such other person,

20 at the gun show or the curtilage area of the gun show,

21 indicates a willingness to accept the offer, it shall be un22 lawful for such other person to receive the firearm from

23 the person if the recipient knows that the firearm has been

24 transferred to the recipient in violation of this section.’’.
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1 (2) PENALTIES.—Section 924(a) of such title is

2 amended by adding at the end the following:

3 ‘‘(7)(A) Whoever knowingly violates subsection (b),

4 (c)(1), or (c)(2) of section 931 shall be—

5 ‘‘(i) fined under this title, imprisoned not more

6 than 1 year, or both; or

7 ‘‘(ii) in the case of a second or subsequent con8 viction of such a violation, fined under this title, im9 prisoned not more than 5 years, or both.

10 ‘‘(B) Whoever knowingly violates subsection (c)(3) or

11 (d) of section 931 shall be fined under this title, impris12 oned not more than 3 years, or both.

13 ‘‘(C) In addition to any other penalties imposed

14 under this paragraph, the Secretary may, with respect to

15 any person who knowingly violates subsection (b), (c), or

16 (d) of section 931—

17 ‘‘(i) impose a civil fine in an amount equal to

18 not more than $2,500; and

19 ‘‘(ii) if the person is registered pursuant to sec20 tion 931(a), after notice and opportunity for a hear21 ing, suspend for not more than 6 months or revoke

22 the registration of that person under section

23 931(a).’’.

24 (3) CONFORMING AMENDMENT.—Section 923(j)

25 of such title is amended in the first sentence by
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1 striking ‘‘or event’’ and all that follows through

2 ‘‘community’’.

3 (4) CLERICAL AMENDMENT.—The section anal4 ysis for chapter 44 of such title is amended by add5 ing at the end the following:

‘‘931. Regulation of firearms transfers at gun shows.’’.

6 (d) INSPECTION AUTHORITY.—Section 923(g)(1) of

7 such title is amended by adding at the end the following:

8 ‘‘(E) The Secretary may enter during business hours

9 the place of business of any gun show organizer and any

10 place where a gun show is held, without such reasonable

11 cause or warrant, for the purpose of inspecting or exam12 ining the records required by section 923 or 931 and the

13 inventory of licensees conducting business at the gun show

14 in the course of a reasonable inquiry during the course

15 of a criminal investigation of a person or persons other

16 than the organizer or licensee or when such examination

17 may be required for determining the disposition of one or

18 more particular firearms in the course of a bona fide

19 criminal investigation.’’.

20 (e) INCREASED PENALTIES FOR SERIOUS RECORD21 KEEPING VIOLATIONS BY LICENSEES.—Section 924(a)(3)

22 of such title is amended to read as follows:

23 ‘‘(3)(A) Except as provided in subparagraph (B), any

24 licensed dealer, licensed importer, licensed manufacturer,

25 or licensed collector who knowingly makes any false state-
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1 ment or representation with respect to the information re2 quired by this chapter to be kept in the records of a person

3 licensed under this chapter, or violates section 922(m)

4 shall be fined under this title, imprisoned not more than

5 1 year, or both.

6 ‘‘(B) If the violation described in subparagraph (A)

7 is in relation to an offense—

8 ‘‘(i) under paragraph (1) or (3) of section

9 922(b), such person shall be fined under this title,

10 imprisoned not more than 5 years, or both; or

11 ‘‘(ii) under subsection (a)(6) or (d) of section

12 922, such person shall be fined under this title, im13 prisoned not more than 10 years, or both.’’.

14 (f) INCREASED PENALTIES FOR VIOLATIONS OF

15 CRIMINAL BACKGROUND CHECK REQUIREMENTS.—

16 (1) PENALTIES.—Section 924(a) of such title is

17 amended—

18 (A) in paragraph (5), by striking ‘‘sub19 section (s) or (t) of section 922’’ and inserting

20 ‘‘section 922(s)’’; and

21 (B) by adding at the end the following:

22 ‘‘(8)(A) Whoever knowingly violates section 922(t)

23 shall be fined under this title, imprisoned not more than

24 3 years, or both.
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1 ‘‘(B) In the case of a second or subsequent conviction

2 under this paragraph, the person shall be fined under this

3 title, imprisoned not more than 5 years, or both.’’.

4 (2) ELIMINATION OF CERTAIN ELEMENTS OF

5 OFFENSE.—Section 922(t)(5) of such title is amend6 ed by striking ‘‘and, at the time’’ and all that fol7 lows through ‘‘State law’’.

8 (g) EFFECTIVE DATE.—The amendments made by

9 this section shall take effect 180 days after the date of

10 enactment of this Act.

11 SEC. 3. INSTANT CHECK GUN TAX AND GUN OWNER PRI12 VACY.

13 (a) PROHIBITION ON GUN TAX.—

14 (1) IN GENERAL.—Chapter 33 of title 28,

15 United States Code, is amended by adding at the

16 end the following:

17 ‘‘§ 540B. Ban against fee for background check in

18 connection with firearm transfer

19 ‘‘No officer, employee, or agent of the United States,

20 including a State or local officer or employee acting on

21 behalf of the United States, may charge or collect any fee

22 in connection with any background check required in con23 nection with the transfer of a firearm (as defined in sec24 tion 921(a)(3) of title 18).’’.
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1 (2) TECHNICAL AND CONFORMING AMEND2 MENTS.—The section analysis for chapter 33 of title

3 28, United States Code, is amended by inserting

4 after the item relating to section 540A the following:

‘‘540B. Ban against fee for background check in connection with firearm transfer.’’.

5 (b) PROTECTION OF GUN OWNER PRIVACY AND

6 OWNERSHIP RIGHTS.—

7 (1) IN GENERAL.—Chapter 44 of title 18,

8 United States Code, is amended by adding at the

9 end the following:

10 ‘‘§ 932. Gun owner privacy and ownership rights

11 ‘‘Notwithstanding any other provision of law, no de12 partment, agency, or instrumentality of the United States

13 or officer, employee, or agent of the United States, includ14 ing a State or local officer or employee acting on behalf

15 of the United States—

16 ‘‘(1) shall perform any national instant criminal

17 background check on any person through the system

18 established pursuant to section 103 of the Brady

19 Handgun Violence Prevention Act (18 U.S.C. 922

20 note) (referred to in this section as the ‘‘system’’) if

21 that system does not require and result in the imme22 diate destruction of all information, in any form

23 whatsoever or through any medium, about such per24 son who is determined, through the use of the sys-
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1 tem, not to be prohibited by subsection (g) or (h) of

2 section 922 of title 18, United States Code, or by

3 State law, from receiving a firearm, except that this

4 subsection shall not apply to the retention or trans5 fer of information relating to—

6 ‘‘(A) any unique identification number pro7 vided by the national instant criminal back8 ground check system pursuant to section

9 922(t)(1)(B)(i) of title 18, United States Code;

10 or

11 ‘‘(B) the date on which that number is

12 provided; or

13 ‘‘(2) shall continue to operate the system (in14 cluding requiring a background check before the

15 transfer of a firearm) unless—

16 ‘‘(A) the ‘NICS Index’ complies with the

17 requirements of section 552a(e)(5) of title 5,

18 United States Code; and

19 ‘‘(B) the agency responsible for the system

20 and the system’s compliance with Federal law

21 does not invoke the exceptions under sub22 sections (j)(2), (k)(2), and (k)(3) of section

23 552a of title 5, United States Code, except if

24 specifically identifiable information is compiled
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1 for a particular law enforcement investigation

2 or specific criminal enforcement matter.’’.

3 (2) TECHNICAL AND CONFORMING AMEND4 MENTS.—The section analysis for chapter 44 of title

5 18, United States Code, is further amended by add6 ing at the end the following:

‘‘932. Gun owner privacy and ownership rights.’’.

7 (c) CIVIL REMEDIES.—Any person aggrieved by a

8 violation of section 540B of title 28, or 931 of title 18,

9 United States Code, as added by this section, may bring

10 an action in the district court of the United States for

11 the district in which the person resides. Any person who

12 is successful with respect to any such action shall receive

13 actual damages, punitive damages, and such other rem14 edies as the court may determine to be appropriate, in15 cluding a reasonable attorney’s fee.

16 (d) EFFECTIVE DATE.—The amendments made by

17 this section shall take effect on the date of enactment of

18 this Act, except that the amendments made by subsection

19 (a) shall take effect as of October 1, 1998.

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