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Becky Bowers
By Becky Bowers April 16, 2013

Gun-rights group says bill would criminalize leaving gun at home with someone else for more than a week

As gun legislation works its way through the U.S. Senate, gun rights groups warn that some proposals in the original bill could create accidental felons.

One such email warning, from an Arizona group, says, "You would be committing a federal felony if you leave town for more than seven days, and leave someone else at home with your firearms."

Could hosting a house-sitter become a crime? Could your unsuspecting roommates face a felony?

The bill, known as the Safe Communities, Safe Schools Act of 2013, faces votes on a series of amendments, most prominently one proposed by Sens. Joe Manchin, D-W.Va., and Pat Toomey, R-Pa.

So all bets are off on the bill’s final language.

Still, as the debate unfolds, we were curious: Does Senate Bill 649 make felons of vacationing gun owners with roommates or house guests?

Gun transfers

As introduced in the Senate in March, S. 649 requires background checks for all gun sales, with a limited set of exceptions.

And it’s not just sales that are subject to the law — but gun "transfers." In general, it would be illegal to give your gun to someone else without seeking a federal background check.

But there are a series of exceptions that seek to loosen the requirement in some situations — for example, handing your gun to a friend at a shooting range or while hunting legally together, giving a gun as a gift to a close relative or leaving a gun in a will.

It’s also okay under the bill to lend your gun to someone in your own home or yard — as long as that "temporary transfer" lasts less than seven days.

Thus, the issue raised by the Arizona Citizens Defense League.

"While the proposed legislation contains limited exceptions for transfers such as between family members," says the email, sent to supporters April 10, "a little digging shows that you would be committing a federal felony if you ...  leave town for more than seven days, and leave someone else at home with your firearms."

So, what happens if a buddy house-sits or a roommate stays home during your eight-day vacation?

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The answer: It would likely depend on the circumstances.

"I would say it should be changed to ‘you might be committing a federal felony if you leave town for more than seven days, and leave someone else at home with your firearms,’" said Clark Neily, who helped represent security guard Dick Heller in his successful Supreme Court challenge to D.C.’s handgun ban.

If you locked up your guns and expressly forbade others from using them, you would have a pretty good argument that you hadn’t transferred possession, attorneys told us.

But say your weapons were available to guests or roommates — that nothing would prevent them from using your guns while you were out of town. Then you might have a problem.

The federal government tends to have an expansive definition of "possession," under various laws, Neily said.

"I would say there is a real possibility that someone could be convicted under S. 649 for leaving town for more than seven days while someone else is at home with their guns," he said.

Still, a house guest’s mere "access" to your weapons wouldn’t necessarily qualify as possession, said Larry Rosenthal, a law professor at Chapman University School of Law who has worked as a federal prosecutor and argued before the Supreme Court as an attorney for the City of Chicago.

He pointed to a 2012 case decided by the U.S. Court of Appeals’ Seventh Circuit, United States vs. Griffin, in which a felon had been convicted of illegally possessing firearms and ammunition because he lived with his dad, who had hunting gear around the house.

The court overturned the conviction, explaining the government’s argument "confuses access with possession," Rosenthal said.

Meanwhile, just staying in a home with weapons — especially if the house-sitter or roommate didn’t know they were there — wouldn’t plausibly qualify as a "transfer" of a firearm, Rosenthal said. There would have to be a "knowing passage of control."

So leaving your roommate home alone for weeks, oblivious to the shotgun under your bed, likely wouldn’t violate the bill’s provisions.

Our ruling

An Arizona group says a gun bill before the Senate would make it a federal felony to "leave town for more than seven days, and leave someone else at home with your firearms."

Indeed, S. 649, as introduced in the Senate, allows for "temporary transfers" of guns in your own home that last less than seven days. But leaving a house-sitter or roommate with access to weapons while you’re away for a longer stretch, attorneys explained to PolitiFact, could raise the possibility of violating federal law under the bill’s provisions. Still, experts told us a gun owner might avoid such a consequence by locking up weapons and denying permission to use them. And it’s not clear courts would interpret mere access as a transfer of possession.

The claim is just partially accurate. We rate it Half True.

Our Sources

Arizona Citizens Defense League, email with subject line "Stop Federal Universal Firearms Registration!" April 10, 2013

Email interview with Larry Rosenthal, Chapman University School of Law, April 12, 2013

Interview with Adam Winkler, professor, University of California at Los Angeles School of Law, April 12, 2013

Email interview with Clark Neily, senior attorney, Institute for Justice, April 12, 2013

Email interview with Robert Levy, chairman, Cato Institute, April 12, 2013

Library of Congress' Thomas, "Safe Communities, Safe Schools Act of 2013," March 21, 2013

Sen. Pat Toomey, "Sen. Toomey Offers Full Text Of Public Safety And Second Amendment Rights Protection Act Online," April 11, 2013

Cornell University Law School, District of Columbia vs. Heller, Justice Scalia, Opinion of the Court, accessed April 12, 2013

United States Court of Appeals for the Seventh Circuit, United States vs. Griffin, July 5, 2012

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Gun-rights group says bill would criminalize leaving gun at home with someone else for more than a week

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