Yesterday our question of the day was a request from a reader who intended to make his weekend hackathon project the creation of a system that would “allow for ‘universal’ background checks, while protecting civil liberties and privacy.” As someone unfamiliar with the topic, he wanted to find out the objections those of us who value our Second Amendment rights have to “universal background checks” per se. You can probably guess the general tenor of most of the responses . . .
However, commenter Chip Bennet penned this answer of note:
For the moment, let’s set aside the absolute nature of shall not be infringed, and pretend that the right to keep and bear arms is subject to a social utility test, and apply judicial review to background checks (universal or otherwise).
Strict scrutiny: are background checks necessary/crucial to furthering a compelling government interest, narrowly tailored to achieve that interest, and the least-restrictive means to achieve that interest?
First: what is the “compelling government interest” and are background checks necessary/crucial to furthering that interest? Is it reduction of violent crime? Is it prevention of so-called “prohibited persons” from obtaining/possessing a firearm? In either case, the standard is not met. Only 10-15% of criminals obtain firearms through licensed FFLs – which has remained steady before and since the introduction of Brady background checks. Therefore, background checks cannot be considered “necessary/crucial” to furthering the compelling government interest.
What about “universal” background checks, though? 40% of criminals obtain their firearms from friends/family/black market, which would constitute transfers that would ostensibly be covered by UBCs. Of course, if you believe that such laws would be enforceable for criminal-involved private transfers, then I have a bridge to sell you. UBCs would be utterly and completely ineffective at preventing such private transfers. Therefore, UBCs still cannot be considered “necessary/crucial” to furthering the compelling government interest.
Are background checks narrowly tailored to achieve the compelling government interest? Clearly, they are not. They apply to all commercial (and private, for UBCs) transfers, involving all people, law-abiding and criminal.
Are background checks the least restrictive means to achieve the compelling government interest? Again, they obviously are not. They represent a considerable burden on every law-abiding person who chooses to exercise the right to keep and to bear arms, while simultaneously having minimal impact on the behavior of criminals.
Background checks clearly fail strict scrutiny; but what about intermediate scrutiny? Do background checks further an important government interest by means that are substantially related to that interest?
Do background checks further an important government interest? They have been shown to have no impact upon the firearm-acquisition behavior of criminals, before and since implementation of Brady background checks. Criminals and other so-called “prohibited persons” have not been inhibited by background checks in any way, in their attempts to possess firearms.
Are background checks substantially related to that important government interest? No. 85-90% of criminals obtain firearms through means that do not involve background checks. Of the remaining means, about half are through theft, and about half are from private transfers (family, friends, black market sales) – most/all of which are already tacitly illicit. Merely passing a new law to require background checks on private firearm transfers will not compel criminals to subject themselves to said background checks, and absolutely no enforcement mechanism exists for background checks for private transfers. Criminals are not beholden to laws.
Therefore, background checks – and even moreso, universal (i.e. private-transfer) background checks – fail even intermediate scrutiny.
Do we need to test against rational basis? Are fundamental human rights ever subjected to a rational basis test? Even at this absurdly low standard, I would argue that background checks – and especially UBCs – are not rationally related to any legitimate government interest, because nothing about a background check law will compel a criminal to subject himself to a background check when conducting a private transfer, nor is it possible to create an enforcement mechanism for such a law – at least not in a manner that respects all other fundamental individual liberties, such as those protected by the first, fourth, fifth, and fourteenth amendments.
What’s the bottom line? Background checks – and especially UBCs – have zero impact whatsoever on the behavior of criminals, and the government has no means to enforce background checks to prevent so-called “prohibited persons” from obtaining firearms, in a manner that does not grossly violate several other rights.
Background checks are nothing more than a burden on the law-abiding (at best), an opportunity to create “paper” felons (by filling out a form incorrectly), and a mechanism to enable the government to impose itself upon the law-abiding, with respect to the manner of exercise of the right to keep and bear arms.