4473: One Form to Fool Them All

What Is Form 4473?

Anyone who has purchased a firearm from a licensed dealer in the recent past has had to fill out a Form 4473. It’s a form issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) for use by Federal Firearms License (FFL) holders. Every transfer from an FFL holder to a purchaser generates one of these forms, and it stays on file for a minimum of 20 years. A thumbnail of the first page of the form is shown below. It links to the official PDF form at the BATFE website.

Form 4473 Page 1

“Gun control” advocates will point to the use of this form (and the associated National Instant Criminal Background Check System, or NICS) as a positive step. They’ll say that it prevents the wrong people from getting guns without violating the Second Amendment.

How Are We Being Fooled?

The claims of “gun control” advocates are dead wrong on both fronts, and more. First of all, requiring a form and a background check from every purchaser does not prevent unsuitable people from getting guns. Criminals will find sellers elsewhere, or they will steal guns from lawful owners.

Secondly, Form 4473 is a blatant violation of the Second Amendment. It is an infringement on the rights of U.S. citizens to keep and bear arms, implemented by an agency that was originally a division of the Treasury. Some might argue that the federal government does not have the authority to regulate the weapons trade in the United States in the first place, and that “shall not be infringed” does not leave any room for interpretation.

But it gets worse. Any time a customer fills out Form 4473 according to the instructions, that person is also facing a violation of another constitutionally recognized right, this time under the Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

Border Patrol agents reads the Miranda rights to a Mexican national arrested for transporting drugs.Form 4473 is a thinly veiled circumvention of the same right that spawned the Miranda warning and the concept of “taking the Fifth” in court. In the process of supposedly making sure that criminals can’t buy guns, the federal government requires that the purchaser answer the following yes-or-no questions and swear to the veracity of the answers via signature:

11.a. Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.

b. Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?

c. Have you ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

d. Are you a fugitive from justice?

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

f. Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage you own affairs) OR have you ever been committed to a mental institution?

g. Have you been discharged from the Armed Forces under dishonorable conditions?

h. Are you subject to a court order restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner’?

i. Have you ever been convicted in any court of a misdemeanor crime of domestic violence?

j. Have you ever renounced your United States citizenship?

k. Are you an alien illegally in the United States?

l. Are you a nonimmigrant alien?

This is precisely the kind of compulsion prohibited by the Fifth Amendment. In order to exercise the right to keep and bear arms, the BATFE requires that a person waive the right described in the self-incrimination clause by legally affirming answers to an on-paper interrogation. If the customer refuses to act as a witness against himself, he is denied his right to acquire a weapon—deprived of liberty—in violation of the due-process clause.

Some might argue that the self-incrimination clause does not apply here because the purchaser is not involved in an active criminal case. It’s true that the purchase of a gun is not a criminal case, but a sworn, signed statement is a legal weapon that can only come back to harm a person. It is evidence for a potential future criminal case, like statements made to a police officer before any suspicion has arisen.

When the police arrest someone, even if the arrested person is not yet formally charged with anything, he still has the right to remain silent. Why? Because anything he says, especially if he says it to a police officer, can and probably will be used against him in court. That’s why the Miranda warning is phrased that way—to make people aware that the information they are sharing may be used as part of a criminal case against them, right now or at any time in the future.

Witness Taking OathFilling out a Form 4473 is the legal equivalent of walking into a court and filing an affidavit against oneself. If the honest answer to 11.a is “Yes,” and the honest answer to 11.b through 11.l is “No,” it’s hard to think of it as filing anything against oneself, as none of the answers are actually incriminating. But that’s not relevant to the right described in the Fifth Amendment, which is “compelled to be a witness against himself.” Guilt or lack of guilt has no bearing on the situation.

Neither the police, nor the courts, nor the many tentacles of the federal government may compel a person to act as a witness against himself. It is an egregious violation of civil rights if a police officer, for example, refuses to let someone travel freely without answering questions about his activities. It is such a violation that the person’s statements may be inadmissible in court. In the case of Form 4473, the BATFE not only compels a person to be a witness against himself, but does so by threatening to withhold the person’s right to arm himself.

The Constitution explicitly prohibits the federal government from doing all of these things—compelling a person to be a witness against himself, depriving a person of any right without due process of law, and infringing on a person’s right to keep and bear arms. It’s all there in black and white.

But Isn’t That the Background Check?

Form 4473 is not the background check that is performed prior to a firearm transfer. That takes place after a 4473 is filled out, typically on the phone. The information NICS uses to determine whether the FFL may proceed is independent of the answers on the form. When a purchaser fills out the form, what he is doing is providing sworn answers to a preliminary set of questions. There are clear “right” and “wrong” answers to these questions, if the purchaser wants to acquire the firearm; any other answers will stop the transfer from happening.

It’s a sort of trap, the same kind of trap a police officer might spring during a traffic stop. For example, if an officer asks a person if he has anything illegal in his car, the person has three options: say yes, say no, or remain silent. Either of the first two options amounts to the person acting as a witness against himself. The third option is what sets the police encounter apart from Form 4473. The person has the option to remain silent, and the police officer cannot (lawfully) respond by depriving the person of life, liberty, or property.

Traffic Stop

The BATFE, on the other hand, claims the authority to make an FFL refuse a transfer if the purchaser will not complete and sign Form 4473. However, the background check could be performed to exactly the same degree without the answers to any of those questions or the purchaser’s signature. The form is extraneous to the background check. It is a bald attempt to make purchasers of firearms waive their Fifth Amendment rights in order to exercise their Second Amendment rights. (For anyone with a deeper interest in the Constitution, this arguably amounts to a violation of the Ninth Amendment’s provision that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

Is There a Solution?

Of course, it’s not unreasonable to want some level of security, especially when it comes to a potentially lethal object like a firearm. Gun owners should understand this; owning a gun involves the duty of being its steward. Responsible gun owners don’t let just anyone handle their guns, and it follows that they should appreciate the idea of not letting just anyone put his hands on a gun.

ATF FFL CheckThat said, the federal government is explicitly forbidden from being a gatekeeper between the people and any arms they may want to keep or bear. The pre-recorded message on NICS telling a firearms dealer whether to proceed with a sale or not is no less of a violation than if the government were to ban a particular religion or outlaw discussion of certain topics. It cannot stand.

However, there is a middle ground. Most everyone agrees that any FFL ought to be informed that his potential customer is a convicted violent felon, a known drug abuser, severely mentally ill, or otherwise ill-suited to own a firearm. These are things that might not be readily apparent in the course of a brief encounter in a gun shop, but the dealer should know about them if possible. NICS already has this information, as do the state authorities that are sometimes used for this purpose.

The solution is for the government to simply provide this information to the FFL rather than making the decision for him. The dealer would still collect the customer’s basic information on a form, but that form would not include a section that requires the purchaser to act as a witness against himself. Then the usual NICS call would take place, except that the result would not be a command about whether to proceed. It would be a list of reasons why the dealer may not want to proceed with the transfer, if there are any.

Greg Ebert Gun DealerThe dealer would then be free to make the choice of whether to proceed. He was informed of the purchaser’s background prior to approving the transfer, so he cannot feign ignorance, and he acts at his own risk. If he knowingly sells a gun to an unsuitable person who then uses it in a crime, the dealer can be held responsible via loss of licensing, civil penalties, and/or criminal liability as appropriate. This level of accountability would deter dealers from selling guns to unsuitable people, while still conveying all of the important information and removing the decision from the hands of the government. Taking this power away from the government also ensures that it can never be used as an instrument of abuse, such as denying the right to arms due to nonpayment of taxes or political blacklisting.

Overall, there is no valid reason why completing Form 4473 as it exists should be required of prospective firearm purchasers. Each purchaser’s suitability can be and is already determined in other ways, none of which necessitate the providing of sworn statements that could be used in a criminal case against that person. Removing those questions and leaving the decision to the dealer would not plunge the firearms trade into lawlessness. In fact, it would do the opposite, preserving the ability of citizens to exercise all of their rights, rather than forcing them to choose which rights to waive.

I Won’t Shoot You / Don’t Be a Horse

I live in New Hampshire, and it is much easier to buy a firearm here than in most other states. There are no state laws limiting the purchase of any type of gun. The only real laws are these:

1. A person must be at least 18 years of age to purchase a long gun.
2. A person must be at least 21 years of age to purchase a handgun.

The federal government does, however, allege authority to impose firearms restrictions in the state of New Hampshire, so there are other hoops to jump through. There are special licenses and requirements for automatic and selective-fire guns, explosive devices, and other miscellaneous items. Purchase of any firearm from a federal licensee requires undergoing an “instant” background check.

But by and large, providing you’re not mentally unstable or a criminal, it is easy to get a gun here. There are even laws that bypass the federal licensing system by allowing firearms transactions without paperwork between certain parties. It’s also easy to get a permit to carry a concealed handgun—again, if you’re clean. There are no fingerprints taken or other criminal-handling procedures inflicted on the applicant. The issuing authority (usually local police) must respond to your application within 14 days with either a brand-new license or a damn good reason why you can’t have it. The fee is $10 for residents. That’s ten dollars, not a typo.

There are also no laws telling gun owners how to store their property. If you want to lock up your guns, do it. If not, don’t. Despite this, it’s common practice to lock up guns anyway, and to keep ammo separate. People who own guns tend to be quite aware of the potential for misuse or devastating accidents, not to mention that they can be pretty expensive. But no one has to tell them to do it.

Keeping and bearing arms here is a right that you have to forfeit by your actions, not a privilege that is contingent on the actions of others. The carry license is a sort of convenience, a way to simplify innocent encounters between the police and lawful gun-toters. The laws keep guns out of the hands of unsupervised children because that’s common sense. If there were no federal laws, the state would still work to keep known criminals from acquiring guns because, again, it’s common sense.

But overall, adults are treated like adults when it comes to firearms. In fact, adults are treated like adults in general. It makes sense in a state with “LIVE FREE OR DIE” emblazoned on every license plate. We aren’t required by law to buy any kind of insurance, not even for driving. No one has to wear a helmet while riding a motorcycle. The state doesn’t tax our income so that it can justify making our decisions for us. The state only ever attempts to make safety decisions for children, because they’re children and they can’t be expected to responsibly make those decisions yet. Until they’re 18, they have to wear seat belts and refrain from playing the lottery. After that, it’s up to them.

Personally, my decisions lean toward those that are mandated in other states. I have driver’s insurance because it is the right decision for me. I wear a seat belt whenever I’m in a car because I want to. If I were to get a motorcycle, I would probably wear a helmet out of pants-shitting fear. On the other hand, I don’t have health insurance because, without an employer subsidy, it’s an extremely bad deal. It’s the better decision for me to not make that purchase, and I have the freedom to do so.

I also have a pistol/revolver license, and on any given day I might choose to carry a loaded gun on my person or in my vehicle. With the laws the way they are, I could have any number of guns that invoke any number of media buzzwords—semi-automatic handgun, assault rifle, hollow-point ammunition, pistol grip, high-caliber rounds, extended magazines! Any day of the week, I could be standing in line next to you with a pistol and 48 rounds on my hip.

I might have all of that and more, but I won’t shoot you, ever. I promise. My promise goes back to the original idea of the social contract. I’m an adult and you’re an adult, and we solemnly agree not to do each other harm or to interfere in each other’s affairs. Unless your actions urgently force me to do it, I will not shoot or even point a gun at you. I also won’t force you to wear a seat belt or put away your cell phone while you’re driving (even if it makes me grit my teeth). In return, all I ask is that you respect my rights and my decisions the way I respect yours.

This is the ideal from which the United States grew. Freedom does come with risks, but it is exactly in our dealing with these risks that we grow to be mature, useful people. The best among us are allowed to flourish when their lives are left in their own hands, and the worst among us will fail anyway. But when we are deprived of freedom and the risks that go with it, all of us never really grow up. We assume we need permission for almost everything. Our confidence is stunted, and our minds develop around the idea of seeking approval rather than improving ourselves and achieving things. We become the opposite of free; we become dependent.

Free people say “yes” or “no” by their own choice, and they act of their own will. They don’t wait for orders and say “okay” to every request. They don’t defer their judgment and their decisions to well-dressed know-it-alls a thousand miles away. Dependent people need that bubble, that insulation from themselves. They agree to be put in social handcuffs for what they perceive to be their own good, and they consider a safety net a good deal at any cost (and anyway, they can’t say no).

The United States was partly designed as a sort of experiment, but not an experiment to see if democracy works. Citizens get to vote, but the system of government itself is a constitutional republic. It exists to safeguard our freedom and to govern within strict limitations so that we can become strong and independent. That, more than anything else, is the material purpose behind the Constitution, the Declaration of Independence, and every other revolutionary founding document of this country. The founders did not want their victory to go to waste on a nation of weak, dependent children who would only lose it all back.

When the government acts outside of its restrictions and betrays the purpose of freedom, that nation of weak, dependent people comes to life. We may feel safer, but in reality we are more vulnerable the less free we are. We grow into lives of perpetual servitude, constantly seeking out employers instead of ever doing anything for ourselves. We depend on others for everything we need to survive. Our skill sets become a list of traits that are desirable in slaves: works hard, speaks politely, has a positive attitude, doesn’t challenge authority, follows directions well, and so on. We never really demand anything, so we end up with whatever we are willing to accept to sell ourselves out. What we get is generation after generation of people that are indistinguishable at a distance from herds of livestock.

That is why freedom is worth defending—because it makes us strong, and its absence makes us weak. It gives us opportunities to learn and keeps us from developing into ignorant, helpless animals that would die without a master. Freedom is the difference between a man and the horse he rides. Every time we give up some of our liberty, we are getting on all fours and inviting anyone to mount us. We are proclaiming ourselves weak and in need of a master. And there is always someone ready to take up the offer.

Being a good citizen does not mean following the orders of men who want to make us their horses. Our country will never be better off because its people declared themselves beasts undeserving of liberty. Our best people earn honor by remaining steadfast while everyone else’s knees quiver. And they are remembered far longer and more fondly than their horses.

You Should Have a Gun

You should have a gun. You really should.

Politicians and news personalities and other talking heads will often tell you that you shouldn’t have a gun. They’ll tell you that guns don’t need to be useful beyond the narrow scope of hunting and personal defense. They’ll tell you that the Second Amendment must have limits so that criminals and maniacs and terrorists can’t have high-capacity magazines and machine guns.

But hunting and self-defense are two secondary reasons why the government isn’t permitted to infringe on your right, as an American citizen, to bear arms. In fact, let’s review the exact text of the Second Amendment right now:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

It doesn’t say anything about hunting. It doesn’t say anything about personal defense either. It contains two major parts: a justification of the right, and an unqualified declaration of the right.

The justification explains that the importance of this right is that it allows for local, organized defense (though nowhere does it restrict the right to this purpose). It is not referring to the National Guard of each state. It is referring to civilians maintaining the ability to organize themselves into effective military units if the need should arise.

The declaration does not specify what kind of arms, nor does it provide any room for exception to the rule. The word infringe does not include any connotation of flexibility. It means, “to encroach upon,” with its origins in a Latin word meaning “to damage, break off.” Any baby-step in the direction of restricting possession and carrying of arms of any kind is an infringement of the right.

It is not an oversight that the amendment was written this way. The founders of the United States were rebels and revolutionaries. Access to weapons is what allowed them to defend their country from the theft and oppression of George III.

It’s important to note here that monarchy was a very long-standing form of government as of the late 18th century. The founders were educated people who were facing massive disillusionment with a system that had been in place from time immemorial. The Second Amendment is a recognition that even the most trusted, powerful institutions around us can turn out be destructive elements that need to be stood down. They knew it could happen even in this well-considered arrangement they had created themselves.

That is why the people of the United States have a right—second only to free speech, free religion, free assembly, and redress of grievances—to own and to carry weapons of their choosing, with no limits. Everything from slingshots to missiles to laser rifles is forbidden to the government to restrict. And that right exists primarily so that we may defend ourselves against the government if it becomes necessary, with the same level of force that the government can employ.

Unless you’ve been living in a hole for the past few decades, there’s no way you could not have noticed the government’s complete impunity in its actions. There’s no way you could not have noticed that, year after year, it looks a lot more like a permanent ruling class than any kind of democracy. There’s no way you could not have noticed that something has gone awry with the founders’ great experiment.

Governments cannot be trusted to correct themselves once they’ve gone bad. Human history does not contain many examples of that. Governing bodies exist to last indefinitely, so that’s what they do—preserve the structure of rule. Sometimes, when they’re acting badly enough, that preservation can take some really ugly forms. It can kill and destroy with an unimaginable ferocity. Human history is filled with examples of this.

Unarmed citizens command no authority and present potential government thugs no deterrent to abuse. Armed citizens represent a power to be reckoned with; any large-scale assault upon them risks running into effective resistance.

No one is saying you should keep an automatic rifle loaded under your bed, ready and waiting to be brought into battle. There’s no call to attack the government. There’s no need to join a militia if you don’t want to.

But you should have a gun, and you should learn to use, store, and maintain it properly. You should assert and protect your and your fellow citizens’ right to keep and bear arms. And you should never forget why.

[Many thanks to Merriam-Webster Online and the Online Etymology Dictionary for help with the “infringe” paragraph.]