[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2122 Introduced in House (IH)]







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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Mandatory Gun Show Background Check 
Act''.

SEC. 2. MANDATORY BACKGROUND CHECKS AT GUN SHOWS.

    (a) Findings.--Congress finds that--
            (1) more than 4,400 traditional gun shows are held annually 
        across the United States, attracting thousands of attendees per 
        show and hundreds of Federal firearms licensees and nonlicensed 
        firearms sellers, the vast majority of whom are law-abiding 
        individuals with no desire to participate in criminal 
        transactions;
            (2) traditional gun shows, as well as flea markets and 
        other organized events, at which a large number of firearms are 
        offered for sale by Federal firearms licensees and nonlicensed 
        firearms sellers, form a significant part of the national 
        firearms market;
            (3) firearms and ammunition that are exhibited or offered 
        for sale or exchange at gun shows, flea markets, and other 
        organized events move easily in and substantially affect 
        interstate commerce;
            (4) gun shows, flea markets, and other organized events at 
        which firearms are exhibited or offered for sale or exchange, 
        provide a convenient and centralized commercial location at 
        which firearms may be bought and sold, often without background 
        checks and without records that enable gun tracing;
            (5) at gun shows, flea markets, and other organized events 
        at which guns are exhibited or offered for sale or exchange, 
        criminals and other prohibited persons can obtain guns without 
        background checks and can use such guns that cannot be traced 
        to later commit crimes;
            (6) firearms associated with gun shows have been 
        transferred illegally to residents of another State by Federal 
        firearms licensees and nonlicensed firearms sellers, and have 
        been involved in subsequent crimes including drug offenses, 
        crimes of violence, property crimes, and illegal possession of 
        firearms by felons and other prohibited persons; and
            (7) Congress has the power, under the interstate commerce 
        clause and other provisions of the Constitution of the United 
        States, to ensure, by enactment of this section, that criminals 
        and other prohibited persons do not obtain firearms at gun 
        shows, flea markets, and other organized events.
    (b) Definitions.--Section 921(a) of title 18, United States Code, 
is amended by adding at the end the following:
    ``(35) The term `gun show' means an event which is sponsored to 
foster the collecting, competitive use, sporting use, or any other 
legal use of firearms, and--
            ``(A) at which 50 or more firearms are offered or exhibited 
        for sale, transfer, or exchange, if 1 or more of the firearms 
        has been shipped or transported in, or the event otherwise 
        affects, interstate or foreign commerce; and
            ``(B) at which there are not less than 10 firearm vendors.
    ``(36) The term `gun show organizer' means any person who organizes 
or conducts a gun show.
    ``(37) The term `gun show vendor' means any person who, at a fixed, 
assigned, or contracted location, exhibits, sells, offers for sale, 
transfers, or exchanges 1 or more firearms at a gun show.''.
    (c) Regulation of Firearms Transfers at Gun Shows.--
            (1) In general.--Chapter 44 of such title is amended by 
        adding at the end the following:
``Sec. 931. Regulation of firearms transfers at gun shows
    ``(a)(1) A person who is not a licensed importer, licensed 
manufacturer, or licensed dealer, and who desires to be registered as 
an instant check registrant shall submit to the Secretary an 
application which--
            ``(A) contains a certification by the applicant that the 
        applicant meets the requirements of subparagraphs (A) through 
        (D) of section 923(d)(1); and
            ``(B) contains a photograph and fingerprints of the 
        applicant; and
            ``(C) is in such form as the Secretary shall by regulation 
        prescribe.
    ``(2)(A) The Secretary shall approve an application submitted 
pursuant to paragraph (1) which meets the requirements of paragraph 
(1). On approval of the application and payment by the applicant of a 
fee of $100 for 3 years, and upon renewal of valid registration a fee 
of $50 for 3 years, the Secretary shall issue to the applicant an 
instant check registration, and advise the Attorney General of the 
United States of the same, which entitles the registrant to contact the 
national instant criminal background check system established under 
section 103 of the Brady Handgun Violence Prevention Act for 
information about any individual desiring to obtain a firearm at a gun 
show from any transferor who has requested the assistance of the 
registrant in complying with subsection (c) with respect to the 
transfer of the firearm, and receive information from the system 
regarding the individual, during the 3-year period that begins with the 
date the registration is issued.
    ``(B) The Secretary shall approve or deny an application submitted 
pursuant to paragraph (1) within 60 days after the Secretary receives 
the application. If the Secretary fails to so act within such period, 
the applicant may bring an action under section 1361 of title 28 to 
compel the Secretary to so act.
    ``(3) An instant check registrant shall keep all records or 
documents which the registrant collects pursuant to this section during 
a gun show at a premises, or a portion thereof designated by the 
registrant, that is open for inspection by the Secretary. The Secretary 
shall establish by regulation the procedure for the inspection, at a 
premises or a gun show, of the records required to be kept under this 
section in a manner for a registrant that is identical to the same 
procedural rights and protections specified for a licensee under 
subsections (g)(1)(A), (g)(1)(B), and (j) of section 923. An instant 
check registrant shall remit to the Secretary all records required to 
be kept by the registrant under this subsection when the registration 
is no longer valid, has expired, or has been revoked.
    ``(4)(A) This subsection shall not be construed--
            ``(i) as creating a cause of action against any instant 
        check registrant or any other person, including the transferor, 
        for any civil liability; or
            ``(ii) as establishing any standard of care.
    ``(B) Notwithstanding any other provision of law, except to give 
effect to subparagraph (C), evidence regarding the use or nonuse by a 
transferor of the services of an instant check registrant under this 
section shall not be admissible as evidence in any proceeding of any 
court, agency, board, or other entity for the purposes of establishing 
liability based on a civil action brought on any theory for harm caused 
by a product or by negligence.
    ``(C)(i) Notwithstanding any other provision of law, a person who 
is--
            ``(I) an instant check registrant who assists in having a 
        background check performed in accordance with this section;
            ``(II) a licensee who acquires a firearm at a gun show from 
        a nonlicensee, for transfer to another nonlicensee in 
        attendance at the show, for the purpose of effectuating a sale, 
        trade, or transfer between the 2 nonlicensees, all in the 
        manner prescribed for the acquisition and disposition of 
        firearms under this chapter; or
            ``(III) a nonlicensee disposing of a firearm, who utilizes 
        the services of an instant check registrant pursuant to 
        subclause (I) or a licensee pursuant to subclause (II),
shall be entitled to immunity from a civil liability action as 
described in this subparagraph.
    ``(ii) A qualified civil liability action may not be brought in any 
Federal or State court. The term `qualified civil liability action' 
means a civil action brought by any person against a person described 
in clause (i) for damages resulting from the criminal or unlawful 
misuse of the firearm by the transferee or a third party, but shall not 
include an action--
            ``(I) brought against a transferor convicted under section 
        924(h), or a comparable or identical State felony law, by a 
        party directly harmed by the transferee's criminal conduct, as 
        defined in section 924(h); or
            ``(II) brought against a transferor for negligent 
        entrustment or negligence per se.
    ``(4) A registration issued under this subsection may be revoked 
pursuant to the procedures provided for license revocations under 
section 923.
    ``(b) It shall be unlawful for any person to organize or conduct a 
gun show unless the person--
            ``(1) registers with the Secretary in accordance with 
        regulations promulgated by the Secretary, which shall not 
        require the payment of any fee for such registration;
            ``(2) before commencement of the gun show, records and 
        verifies the identity of each individual who is to be a gun 
        show vendor at the gun show by examining, but not retaining a 
        copy of, a valid identification document (as defined in section 
        1028(d)(1)) of the individual containing a photograph of the 
        individual; and
            ``(3) maintains a copy of the records described in 
        paragraph (2) at the permanent place of business of the gun 
        show organizer for such period of time and in such form as the 
        Secretary shall require by regulation.
    ``(c)(1) If, at a gun show or the curtilage area of a gun show, a 
person who is not licensed under section 923 makes an offer to another 
person who is not licensed under section 923 to sell, transfer, or 
exchange a firearm that is accessible to the person at the gun show or 
in the curtilage area of the gun show, and such other person, at the 
gun show or the curtilage area of the gun show, indicates a willingness 
to accept the offer, it shall be unlawful for the person to 
subsequently transfer the firearm to such other person, unless--
            ``(A) the firearm is transferred through a licensed 
        importer, licensed manufacturer, or licensed dealer in 
        accordance with paragraph (2)(B) and otherwise in accordance 
        with law; or
            ``(B)(i) before the completion of the transfer, an instant 
        check registrant contacts the national instant criminal 
        background check system established under section 103 of the 
        Brady Handgun Violence Prevention Act;
            ``(ii)(I) the system provides the registrant with a unique 
        identification number; or
            ``(II) 72 hours have elapsed since the registrant contacted 
        the system, and the system has not notified the registrant that 
        the receipt of a firearm by such other person would violate 
        subsection (g) or (n) of section 922; and
            ``(iii) the registrant notifies the person that the 
        registrant has complied with clauses (i) and (ii), or of any 
        receipt by the registrant of a notification from the national 
        instant criminal background check system established under 
        section 103 of the Brady Handgun Violence Prevention Act that 
        the transfer would violate section 922 or State law; and
            ``(iv) the transferor and the registrant have verified the 
        identity of the transferee by examining a valid identification 
        document (as defined in section 1028(d)(1) of this title) of 
        the transferee containing a photograph of the transferee.
    ``(2)(A) The rules of paragraphs (2), (3), and (4) of section 
922(t) shall apply to firearms transfers assisted by instant check 
registrants under this section in the same manner in which such rules 
apply to firearms transfers made by licensees.
    ``(B)(i) For purposes of section 922(t)(1)(B)(ii), the time period 
that shall apply to the transfer of a firearm as described in paragraph 
(1) of this subsection shall be 72 hours.
    ``(ii) The licensee or registrant may personally deliver or ship 
the firearm to the prospective transferee in accordance with clause 
(iii) if the gun show has terminated, and--
            ``(I)(aa) 72 consecutive hours has elapsed since the 
        licensee or registrant contacted the system from the gun show 
        and the licensee or registrant has not received notification 
        from the system that receipt of a firearm by the prospective 
        transferee would violate subsection (g) or (n) of section 922 
        or State law; or
            ``(bb) the licensee or registrant has received notification 
        from the system that receipt of a firearm by the prospective 
        transferee would not violate subsection (g) or (n) of section 
        922 or State law; and
            ``(II) State and local law would have permitted the 
        licensee or registrant to immediately deliver the firearm to 
        the prospective transferee if the conditions described in item 
        (aa) or (bb) had occurred during the gun show.
    ``(iii)(I) The licensee may personally deliver the firearm to the 
prospective transferee at a location other than the business premises 
of the licensee, without regard to whether the location is in the State 
specified on the license of the licensee, or may ship the firearm by 
common carrier to the prospective transferee.
    ``(II) The registrant may personally deliver the firearm to a 
prospective transferee who is a resident of the State of which the 
registrant is a resident, or may ship the firearm by common carrier to 
such a prospective transferee.
    ``(3) An instant check registrant who agrees to assist a person who 
is not licensed under section 923 in complying with subsection (c) with 
respect to the transfer of a firearm shall--
            ``(A) enter the name, age, address, and other identifying 
        information on the transferee (or, if the transferee is a 
        corporation or other business entity, the identity and 
        principal and local places of business of the transferee) as 
        the Secretary may require by regulation into a separate bound 
        record;
            ``(B) record the unique identification number provided by 
        the system on a form specified by the Secretary;
            ``(C) on completion of the functions required by paragraph 
        (1)(B) to be performed by the registrant with respect to the 
        transfer, notify the transferor that the registrant has 
        performed such functions; and
            ``(D) on completion of the background check by the system, 
        retain a record of the background check as part of the 
        permanent business records of the registrant.
    ``(4) This section shall not be construed to permit or authorize 
the Secretary to impose recordkeeping requirements on any vendor who is 
not licensed under section 923.
    ``(d) If, at a gun show or the curtilage area of a gun show, a 
person who is not licensed under section 923 makes an offer to another 
person who is not licensed under section 923 to sell, transfer, or 
exchange a firearm that is accessible to the person at the gun show or 
in the curtilage area of the gun show, and such other person, at the 
gun show or the curtilage area of the gun show, indicates a willingness 
to accept the offer, it shall be unlawful for such other person to 
receive the firearm from the person if the recipient knows that the 
firearm has been transferred to the recipient in violation of this 
section.''.
            (2) Penalties.--Section 924(a) of such title is amended by 
        adding at the end the following:
    ``(7)(A) Whoever knowingly violates subsection (b), (c)(1), or 
(c)(2) of section 931 shall be--
            ``(i) fined under this title, imprisoned not more than 1 
        year, or both; or
            ``(ii) in the case of a second or subsequent conviction of 
        such a violation, fined under this title, imprisoned not more 
        than 5 years, or both.
    ``(B) Whoever knowingly violates subsection (c)(3) or (d) of 
section 931 shall be fined under this title, imprisoned not more than 3 
years, or both.
    ``(C) In addition to any other penalties imposed under this 
paragraph, the Secretary may, with respect to any person who knowingly 
violates subsection (b), (c), or (d) of section 931--
            ``(i) impose a civil fine in an amount equal to not more 
        than $2,500; and
            ``(ii) if the person is registered pursuant to section 
        931(a), after notice and opportunity for a hearing, suspend for 
        not more than 6 months or revoke the registration of that 
        person under section 931(a).''.
            (3) Conforming amendment.--Section 923(j) of such title is 
        amended in the first sentence by striking ``or event'' and all 
        that follows through ``community''.
            (4) Clerical amendment.--The section analysis for chapter 
        44 of such title is amended by adding at the end the following:

``931. Regulation of firearms transfers at gun shows.''.
    (d) Inspection Authority.--Section 923(g)(1) of such title is 
amended by adding at the end the following:
    ``(E) The Secretary may enter during business hours the place of 
business of any gun show organizer and any place where a gun show is 
held, without such reasonable cause or warrant, for the purpose of 
inspecting or examining the records required by section 923 or 931 and 
the inventory of licensees conducting business at the gun show in the 
course of a reasonable inquiry during the course of a criminal 
investigation of a person or persons other than the organizer or 
licensee or when such examination may be required for determining the 
disposition of one or more particular firearms in the course of a bona 
fide criminal investigation.''.
    (e) Increased Penalties for Serious Recordkeeping Violations by 
Licensees.--Section 924(a)(3) of such title is amended to read as 
follows:
    ``(3)(A) Except as provided in subparagraph (B), any licensed 
dealer, licensed importer, licensed manufacturer, or licensed collector 
who knowingly makes any false statement or representation with respect 
to the information required by this chapter to be kept in the records 
of a person licensed under this chapter, or violates section 922(m) 
shall be fined under this title, imprisoned not more than 1 year, or 
both.
    ``(B) If the violation described in subparagraph (A) is in relation 
to an offense--
            ``(i) under paragraph (1) or (3) of section 922(b), such 
        person shall be fined under this title, imprisoned not more 
        than 5 years, or both; or
            ``(ii) under subsection (a)(6) or (d) of section 922, such 
        person shall be fined under this title, imprisoned not more 
        than 10 years, or both.''.
    (f) Increased Penalties for Violations of Criminal Background Check 
Requirements.--
            (1) Penalties.--Section 924(a) of such title is amended--
                    (A) in paragraph (5), by striking ``subsection (s) 
                or (t) of section 922'' and inserting ``section 
                922(s)''; and
                    (B) by adding at the end the following:
    ``(8)(A) Whoever knowingly violates section 922(t) shall be fined 
under this title, imprisoned not more than 3 years, or both.
    ``(B) In the case of a second or subsequent conviction under this 
paragraph, the person shall be fined under this title, imprisoned not 
more than 5 years, or both.''.
            (2) Elimination of certain elements of offense.--Section 
        922(t)(5) of such title is amended by striking ``and, at the 
        time'' and all that follows through ``State law''.
    (g) Effective Date.--The amendments made by this section shall take 
effect 180 days after the date of enactment of this Act.

SEC. 3. INSTANT CHECK GUN TAX AND GUN OWNER PRIVACY.

    (a) Prohibition on Gun Tax.--
            (1) In general.--Chapter 33 of title 28, United States 
        Code, is amended by adding at the end the following:
``Sec. 540B. Ban against fee for background check in connection with 
              firearm transfer
    ``No officer, employee, or agent of the United States, including a 
State or local officer or employee acting on behalf of the United 
States, may charge or collect any fee in connection with any background 
check required in connection with the transfer of a firearm (as defined 
in section 921(a)(3) of title 18).''.
            (2) Technical and conforming amendments.--The section 
        analysis for chapter 33 of title 28, United States Code, is 
        amended by inserting after the item relating to section 540A 
        the following:

``540B. Ban against fee for background check in connection with firearm 
                            transfer.''.
    (b) Protection of Gun Owner Privacy and Ownership Rights.--
            (1) In general.--Chapter 44 of title 18, United States 
        Code, is amended by adding at the end the following:
``Sec. 932. Gun owner privacy and ownership rights
    ``Notwithstanding any other provision of law, no department, 
agency, or instrumentality of the United States or officer, employee, 
or agent of the United States, including a State or local officer or 
employee acting on behalf of the United States--
            ``(1) shall perform any national instant criminal 
        background check on any person through the system established 
        pursuant to section 103 of the Brady Handgun Violence 
        Prevention Act (18 U.S.C. 922 note) (referred to in this 
        section as the ``system'') if that system does not require and 
        result in the immediate destruction of all information, in any 
        form whatsoever or through any medium, about such person who is 
        determined, through the use of the system, not to be prohibited 
        by subsection (g) or (h) of section 922 of title 18, United 
        States Code, or by State law, from receiving a firearm, except 
        that this subsection shall not apply to the retention or 
        transfer of information relating to--
                    ``(A) any unique identification number provided by 
                the national instant criminal background check system 
                pursuant to section 922(t)(1)(B)(i) of title 18, United 
                States Code; or
                    ``(B) the date on which that number is provided; or
            ``(2) shall continue to operate the system (including 
        requiring a background check before the transfer of a firearm) 
        unless--
                    ``(A) the `NICS Index' complies with the 
                requirements of section 552a(e)(5) of title 5, United 
                States Code; and
                    ``(B) the agency responsible for the system and the 
                system's compliance with Federal law does not invoke 
                the exceptions under subsections (j)(2), (k)(2), and 
                (k)(3) of section 552a of title 5, United States Code, 
                except if specifically identifiable information is 
                compiled for a particular law enforcement investigation 
                or specific criminal enforcement matter.''.
            (2) Technical and conforming amendments.--The section 
        analysis for chapter 44 of title 18, United States Code, is 
        further amended by adding at the end the following:

``932. Gun owner privacy and ownership rights.''.
    (c) Civil Remedies.--Any person aggrieved by a violation of section 
540B of title 28, or 931 of title 18, United States Code, as added by 
this section, may bring an action in the district court of the United 
States for the district in which the person resides. Any person who is 
successful with respect to any such action shall receive actual 
damages, punitive damages, and such other remedies as the court may 
determine to be appropriate, including a reasonable attorney's fee.
    (d) Effective Date.--The amendments made by this section shall take 
effect on the date of enactment of this Act, except that the amendments 
made by subsection (a) shall take effect as of October 1, 1998.
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