In 2020, California Sen. Dianne Feinstein unveiled a bill that she called the “Stopping the Fraudulent Sales of Firearms Act,” which would have imposed a five-year federal prison sentence on anyone found guilty of the newly created crime of “sell[ing] a firearm or ammunition by means of false or fraudulent pretenses, representations, or promises… by means of wire, radio, or television communication in interstate or foreign commerce.”
The bill went nowhere, and in fact only one other Democrat signed on as a co-sponsor. That senator, New Jersey’s Robert Menendez, is now helping to reboot Feinstein’s bill along with Sen. Cory Booker, and the Democrats are getting the full support of anti-gun groups like Everytown for Gun Safety.
“Despite some initial steps that big tech companies have taken over the last couple of years to crack down on illegal online firearm sales, determined gun sellers and buyers continue to find new ways to circumvent these companies’ efforts,” said Sen. Menendez. “Our common-sense bill makes it clear that gun sellers who illegally move their weapons online and jeopardize public safety will pay the price for their actions.”
“By using online marketplace platforms, bad actors can bypass existing laws to illegally sell firearms that jeopardize the safety and well-being of our communities,” said Sen. Booker. “Building on my work to reform our country’s broken gun safety laws, I am proud to introduce this critical legislation that will close this dangerous loophole and make us all safer.”
Some technology companies have banned the sale of firearms and ammunition on their platforms. However, sellers often will misrepresent guns as other items to circumvent such restrictions.
For instance, sellers on platforms like Facebook Marketplace will claim to be selling “stickers” alongside images of gun maker logos. Sellers will ask interested parties to send a private message where buyers learn the posting is actually for a gun sale and receive details and pricing. Facebook reported in 2020 that it had removed 1.3 million posts related to firearms between April and June from its platforms.
Now, there’s nothing illegal under federal law about individual gun owners selling firearms from their personal collection to another private citizen, though knowingly selling a gun to a prohibited person is already a crime. What Mendendez and Booker are trying to do here is create a new federal crime in order for the government to enforce the terms of service of platforms like Facebook and Instagram.
There are some serious Constitutional problems with this proposal, and not just from a Second Amendment perspective. This would have a chilling effect on the First Amendment rights of gun owners as well, though I doubt that’s much of a concern for the Democratic senators or their allies in the gun prohibitionist lobby.
“Right now, internet marketplaces are where people with dangerous histories go to buy guns from unscrupulous private sellers,” said John Feinblatt, president of Everytown for Gun Safety. “Stopping illegal gun sales will save lives and we applaud Senators Feinstein, Menendez, Booker, Blumenthal and Congresswoman Scanlon for reintroducing legislation to do exactly that.”
“Far too often, tech companies are left playing whack-a-mole to stop illegal gun sales online and it needs to stop once and for all,” said Shannon Watts, founder of Moms Demand Action. “We appreciate Senators Feinstein, Menendez, Booker, and Blumenthal and Congresswoman Scanlon for their work to stop the illegal sales of firearms and fight for gun safety.”
“The overwhelming majority of Americans believe that individuals who should not possess firearms are not able to purchase them, yet loopholes in our laws and growing online sales undermine this core principle of our gun safety laws,” said Kris Brown, president of Brady. “This bill is a common-sense fix to this growing problem that recognizes the realities of the 21st Century by addressing the dangerous practice of falsely advertising firearm sales online. Brady is grateful to Senators Feinstein, Menendez, Booker, Blumenthal and Representative Scanlon for championing this important legislation.”
I’m sure that there people who are violating the TOS of platforms like Facebook and Instagram and offering guns for sale, but I don’t think that it’s up to Congress to step in and make it a federal felony to do so, especially when the platforms are also being used to facilitate human trafficking and even help drug dealers connect with customers, as the Washington Post reported last year.
“If we can find it, they can find it. That begs the question how hard they’re looking,” Digital Citizens Alliance Executive Director Tom Galvin said in an interview.
So why aren’t Menendez and his merry band of gun banners targeting illegal drug sales, human trafficking, or other criminal activity taking place on the various social networks?
My guess is that it’s because those activities are already illegal. Make no mistake, this bill would create a brand new crime out of thin air, and would open the door for federal law enforcement to conduct fishing expeditions against any 2A supporter who might have ever offered something for sale online. In the past I’ve offered to give away or sell surplus eggs from my chickens to my Twitter followers, but given my position as a Second Amendment activist, why wouldn’t some overzealous investigator deem that to be suspicious activity? Maybe “eggs” is code for “ammo”, after all!
This bill is unworkable, impractical, unconstitutional, and utterly devoid of any respect for our First, Second, and Fourth Amendment rights… which means that it will probably end up being supported by a majority of the Democratic caucus in the House and Senate. I don’t know if it’s got enough juice to actually make it to Joe Biden’s desk, but this is definitely a bill we’ll be keeping our eyes on this year as Democrats grow more desperate to pass something they can call a victory for the gun control lobby.