Does the NRA support mandatory BATFE Home Inspections?
It seems an odd question, but given the events of the past several months it is becoming an increasingly valid one.
Having taken the rabidly anti-gun Carolyn McCarthy’s bait firmly in the jaw, the NRA is backing the “NICS Improvement act”, HR 2640, which is her proposal to place the names of every person ever involuntarily committed to inpatient psychiatric care for more than 72 hours or otherwise “adjudicated mentally defective” into the NICS database.
Funny thing the NRA failed to take into account in all this though is the actual law it impacts. The US Code of Federal Regulations (CFR) Title 18, Part 1, Chapter 44, Section 922 – “Unlawful Acts”. (
http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000922----000-.html)
Subparagraph (g) (4) explains: (g) “It shall be unlawful for any person—
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;—
to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce,
any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Note these terms: Possess or Receive. Perhaps the NRA is unaware of the various legal meanings of "Possession", but the one that is most critical is the one used most often (DAILY!) in prosecuting “possession” of “prohibited” items by “prohibited” people…
“Constructive Possession”. (
http://www.answers.com/topic/possession?cat=biz-fin)
Constructive Possession
Constructive possession is a legal theory used to extend possession to situations
where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object,
even if the person has no physical contact with it (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.
Criminal Possession
Both federal and state statutes make possession of many dangerous or undesirable items criminal. For example, the federal statute 26 U.S.C.A. § 5861 (1996) prohibits possession of certain firearms and other weapons. Likewise, the possession of other items considered harmful to the public, such as narcotics, burglary tools, and stolen property, is also made criminal under various laws. Criminal possession, especially of drugs, has been a major source of controversy. Making possession a crime allows for arrests and convictions without proving the use or sale of a prohibited item.
Historically, actual possession was required for a criminal possession conviction.
Beginning in the 1920s, however, courts began expanding criminal possession to include constructive possession. The federal prohibition of intoxicating liquors spawned several cases involving criminal possession. In one of the first criminal cases to use constructive possession, the court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person (People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 [1920]).
Subsequent cases, especially narcotics cases, have continued to expand the law of criminal possession.
Now consider: If an individual is placed in the NICS, they are “Prohibited” from POSSESSING firearms and ammunition -
even a single cartridge.
This includes Constructive Possession. Therefore, the Prohibited Person cannot have even
accidental access to either firearms or ammunition that they know to exist in their vicinity.
Short of confiscating the firearms of the families/households of every “prohibited person” there is only one way a Prohibited Person can be assured of compliance with Federal Law – and that is to have all firearms and ammunition “within his ability to exercise control” secured in such a way as he CANNOT “exercise control”.
As the determination of what constitutes the “ability to exercise control” is the purview of the BATFE, the only way family members of a “Prohibited Person” could LEGALLY keep firearms or ammunition in the home is to have BATFE approved storage – AND have that storage be subject to the same sort of regulatory oversight the BATFE exercises over Federal Firearm Licensees – full registration of every serial numbered firearm and unlimited access to ensure “proper” storage of every item.
That means inspections… or no guns.
This is where the NRA has left us in supporting HR 2640. Confiscation or BATFE registration & home inspection(s) for/of every family with a family member in the NICS.
Which do they support?
