Oregon expanded gun background check law takes effect

by Sen. Doug Whitsett

One of the most controversial bills enacted during the Oregon Legislative Assembly’s 2015 regular session was Senate Bill 941. It was passed by both legislative chambers on party-line votes and signed into law by Governor Kate Brown. It went into effect on Sunday, August 9.

The new law requires a criminal background check to be performed by a third-party licensed gun dealer prior to most private firearm transfers. Both the person transferring the gun, and the person receiving the gun, must appear in person, before the gun dealer, and must bring each firearm to be transferred with them.

I strongly believe that SB 941 is a blatantly unconstitutional infringement on our Second Amendment right to own and bear firearms. Moreover, it imposes significant restrictions on the ownership of firearms by law-abiding citizen while doing virtually nothing to restrict the illegal sale or possession of weapons.

Many Oregonians who own firearms may now be “on the edge” of becoming felons. Those of us who strongly believe that gun-control laws are unconstitutional must choose to either obey the law or to commit a felony.

According to the law, “transfer” means the sale, lease, loan, gift, lending or any “change of custody” of a firearm. This law generally does not apply to the “transfer of possession or ownership” of firearms among immediate family members.

A transfer made for the purpose of preventing imminent death or injury is also exempt from the background check requirements. But, absurdly, that transfer of possession is only exempt during the time while the threat is “imminently present.”

For instance, the threat may be imminent only after your home is invaded, or your neighbor’s wife or children have already been assaulted.

The transfer of a firearm, under this bill, means the delivery of the weapon from one person to another person, including, “but not limited to,” the sale, gift, loan or lease of the firearm. The “not limited to” phrase includes most transfers of the possession of a firearm.

SB 941 exempts transfers of possession that occur at a shooting range or gallery, or during a hunting, trapping or target shooting event. But the exemption is only valid when both persons are in the immediate presence of the firearm.

The law also does not apply while a firearm is being repaired or modified at a licensed gun shop.

However, the law does apply when gun owners leave their weapons with a friend or neighbor for safekeeping. According to Legislative Counsel, the team of attorneys that works for the Legislature and drafts the state’s laws, in order to obey this law, a gun owner is required to appear with their guns before a licensed gun dealer, along with their friend or neighbor, to obtain a criminal background check on the friend or neighbor, for each of the firearms.

Further, to comply with the law, in order to take possession of their own weapons upon returning home, the gun owner must “once again” appear before a licensed gun dealer, with their friend or neighbor, with all of the weapons, to obtain a criminal background check on the gun owner, for each of the weapons.

Failure to comply with the law is a Class A misdemeanor for the first offense. It is punishable by up to one year in jail and a fine of up to $6,250 for each firearm illegally transferred.

A second offense is a Class B felony. It is punishable by up to 10 years in prison, a fine of up to $250,000, or both, for each firearm illegal transferred.

The Democrat majority had the temerity to affix an emergency clause to the bill. That clause effectively prohibited Oregon citizens from exercising their constitutional right to refer the new law to the vote of the people.

When SB 941 was being debated in the Legislature, local elected officials from two-thirds of Oregon’s counties opposed it. Some testified against the proposal in committee.  Many local governing bodies have passed resolutions or ordinances in strong support of their constituents’ Second Amendment rights. Multiple sheriffs throughout the state have stated publicly that it will be difficult to enforce the new law.

Questions about the bill’s lack of enforceability are now being raised in the news media. Some are expressing doubt whether this bill can be enforced without requiring the mandatory registration of all firearms. I share the concern that gun registration may be the next step in the anti-gun agenda.

In this recently published opinion piece, editors at the Albany Democrat-Herald newspaper predict the law will be “widely ignored.” It states that “no one knows for sure how many of these private transactions occur each year in Oregon” and because of that, “it will be nearly impossible to gauge the effectiveness of the law.” The editorial goes on to state that SB 941 “seems extremely unlikely” to keep guns out of the hands of people who shouldn’t have them.

One of the bill’s chief sponsors, Sen. Ginny Burdick (D-Portland) has been quoted in press articles as admitting that the state has provided no funding for enforcement of the law’s new mandates. Another chief sponsor, Sen. Floyd Prozanski (D-Eugene) is undergoing an active effort to recall him from the Senate.

SB 941 does allow Oregon licensed gun dealers to charge a fee for providing the criminal background check service. Nevertheless, it appears that a preponderance of gun dealers in the state have expressed their intention to decline to provide the criminal background check service.

Unfortunately, all of this opposition does not change the reality that SB 941 is current Oregon law. The Progressive Liberal Democrat majority has made the private transfer of the possession of a firearm an Oregon felony, unless a criminal background check is performed by a licensed gun dealer.

It is worth noting that not a single Republican legislator voted in favor of SB 941. In fact, this egregious law was held back, for the past four years, by our coalition of 14 Republican Senators and Sen. Betsy Johnson (D-Scappoose).

Voters chose to replace two members of our coalition in last November’s general election. The two new Senators are arguably among the most liberal of the progressive Democrats that control both chambers. Both voted in favor of this bill.

One of their campaigns were strongly supported by out-of-state anti-gun advocates such as former New York Mayor and billionaire Michael Bloomberg. Contributions were received from the Brady Campaign to Prevent Gun Violence on October 16 for $10,000, with an additional $75,000 coming from Bloomberg’s Everytown for Gun Safety Action Fund on October 30.

That same group is now paying for six figures’ worth of television ads in Eugene and Portland to promote the law.

Political reality matters, and the fact is that we no longer have the required 15 Senate votes to stop gun-control bills. The certain result is anti-firearm bills such as SB 941 making their way through the legislative process and become Oregon law.

Elections do have consequences. We must now live with the outcome of our most recent election and the actions of the 2015 Legislative Assembly, including the adoption of constitutionally questionable laws such as SB 941.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls