As usual, Mother Jones is all about pushing new gun control proposals. Their latest article on the subject uses a Pew research study to push forward the idea that there are some “common sense gun control proposals” that we can all agree on, no matter if you’re a Democrat or a Republican. There’s just one problem: the proposals presented in the poll bear no resemblance whatsoever to the legislation that has been proposed on the subject. Here’s why these numbers don’t match up with reality . . .
Background Checks for Gun Shows and Private Sales (79% R, 88% D)
On its face, the idea that every gun sale would be accompanied by a background check sounds like a good idea. There are very few people who would argue that convicted felons and domestic abusers shouldn’t be barred from purchasing firearms, but, as always, there’s a catch.
The NICS system is flawed to begin with. While violent convicted felons shouldn’t be allowed to own a gun ever again, what about non-violent offenders? There’s some strong support for decriminalization of gun ownership for those individuals, since the right to keep and bear arms is a human right after all. And that doesn’t address the problem with domestic abuse cases and how they are currently handled, namely the mere accusation of domestic abuse is enough to disqualify someone for life with no recourse.
NICS issues aside, we have seen more than a few of these proposals come up in Congress in the last few years. The most famous, the Manchin-Toomey bill, was proposed in the wake of the Sandy Hook school shooting. Yet as written, it didn’t address a single aspect of that tragedy that could have prevented or mitigated it.
There have been others since, but they always seem to follow the same pattern. The problem most people see with such “universal background check” proposals is that they would pretty much make it illegal to share your love of shooting. Let me give you some illustrative examples.
- You’re out on your buddy’s ranch and he wants to try your new gun. If you hand it to him, you have performed an illegal transfer making both of you felons.
- You want to buy your buddy’s gun. The nearest gun store is not happy about having to do transfers for individuals rather than selling from their own stock, and in response they have hiked up the transfer fees they charge to 50% of the cost of the sale. Without any government restrictions on the price of transfers, every gun store in town does the same.
- You live on a ranch 100 miles from the nearest gun store. You want to buy your buddy’s gun, but the trip to the gun store plus the transfer fee would cost more than the gun itself including gas and time invested.
Those are just some of the practical issues related to universal background check laws. The theoretical issues are even greater, since the Manchin-Toomey bill would have opened the flood gates for government entities to start compiling a master list of gun owners. Most gun owners agree that the first step towards confiscation is registration, as evidenced in California. If there were a way to perform a background check without a paper trail and without a fee, I doubt there would be any remaining significant opposition to the proposal.
Laws to Prevent Mentally Ill from Buying Guns (81% R, 79% D)
Another superficially great idea. Every time there’s a mass casualty event involving firearms it seems the mental health of the perpetrator is a major contributing factor. While it would be great to have a way to screen out such potentially dangerous people, that proposal comes with a couple of sticky issues.
The first potentially fatal flaw is the fact that the definition of “mentally ill” isn’t exactly set in stone. To illustrate exactly how subjective that phrase can be, there’s an entry in the DSM (the bible of diagnostic psychology) that makes the use of caffeine a qualified mental disorder. So in theory, if you’ve had more than one cup of coffee this morning then you are “mentally ill” and owning a gun would be illegal.
That same ambiguity is the reason why we’ve seen some disturbing gun confiscations in California (and attempted confiscations by the VA) from people who no one would qualify as “mentally ill.” The concern is that the ambiguity could be exploited by those who simply want gun owners extinct to make gun ownership technically legal, but practically impossible.
Another problem is that the further stigmatization of mentally ill individuals would be a massive barrier to care for gun owners. If the consequence of going to see a psychiatrist could be that an ATF agent comes to your door to confiscate your guns, how many gun owners would actually seek treatment for their potential mental health issues? I’ll give you a hint: none.
Just look at the way pilots see doctors for proof of this concept. Pilots need a valid medical certificate to fly an airplane. If any one of a vast array of medical conditions pop up then their medical certificate could be revoked at any time. Even if they don’t have a problem the docs can still make the process painful and costly — one of my friends recently had a traumatic experience with the suicide of his friend, and the AME is making him go through thousands of dollars worth of psychiatric observation before even considering his medical. As a result, pilots regularly visit “under the counter” doctors for their medical conditions rather than seeking the most competent care in order to avoid any entanglement with the FAA. The results of such stigmatization can be deadly.
Federal Database to Track Gun Sales (55% R, 85% D)
Like I said, gun owners tend to be very private people who don’t like the idea of a federal gun registry. That has become painfully obvious in places like New York, with most gun owners refusing to register their legally owned guns.
The Canadian government has maintained a firearms registry for some time, but they recently decided to scrap it since it turned out to be less useful than the hard drives it was inscribed upon. The idea that an American version would be any more effective, especially given the reluctance of gun owners to voluntarily register their guns, is patently insane.
Even if such a registry were complete and useful, would it actually do anything to stop “gun violence” or bring down the murder rate? Research indicates that 80% of guns used in crime come from either a family member or a “street” illegal source. So, if the guns in the system are already illegal (or rather, a background check and tracing would have no impact on their availability), then how would attaching a name to the guns make them any less available? There’s an argument to be made that the ability to trace a gun back to its source would make participating gun owners and straw purchasers less likely to go along with the scheme, but that can already be accomplished by tracing the gun through gun store sales records and 4473 forms.
So really, the proposal wouldn’t have any appreciable impact on “gun violence” and has a real possibility to empower the government with the ability to confiscate firearms at will if they so choose. Which is a bad thing in the eyes of most gun owners.
So What’s The Deal?
Every single time a new gun control proposal comes out, the usual suspects immediately champion it as the silver bullet that will save lives with common sense. And every time their legislation meets an untimely demise they claim that the reason it failed was that their “common sense” proposal was murdered by the “evil gun lobby” for no apparent reason. But we all know that’s not the case.
I like to use an illustrative example as to why this happens to legislation that is ostensibly supported by both sides of the aisle. Back before the recent supreme court ruling, any Democrat would have jumped for joy at a bill with a title like “The Marriage Equality Act” which would make same sex marriages legal nationwide. But tell them that there’s a $50,000 per person per year tax for “administrative purposes” for such marriages and support for the measure becomes somewhat more lukewarm. Gun control legislation is the same way: the title sounds good and polls well, but the details make it impossible for gun owners and average Americans to swallow.
Until people like those on Mother Jones’ editorial staff finally start actually reading legislation to see what’s in it instead of relying on the title and ideology to determine whether they support it or not, they will never understand this concept. And that’s a sad state of affairs for journalism in America.
In terms of firearms sales, “Gun Shows” are not a thing. Sales are either commercial – through an FFL, with attendant NICS check – or private. The location of the transfer does not matter.
Current BGCs don’t prevent criminals from obtaining guns, don’t prevent guns being used in crime, and aren’t used to prosecute so-called “prohibited persons” who attempt to purchase firearms. Criminals won’t follow the law in private sales, nor will they conduct a background check on themselves when stealing firearms.
So: what harm will be prevented, or what public good will be furthered, by expanding background checks?
…because mentally ill people intent on doing harm follow laws any more than criminals do? Laws don’t prevent anything at all; they only allow for punishment after the fact.
Not just no, but hell no. Obvious infringement upon RKBA, that would do absolutely nothing to prevent crime, and that can only potentially be used for harm.
Want to stop gun-involved crime? Keep violent criminals behind bars, and use law enforcement to shut down rampant gang activity.
Well said!
LEO’s can do only so much about Gang activity. When school kids can’t wear Blue or Red to school because of gangs, it’s time to hold the court and politicians feet to the fire. I’m all in favor of capital punishment, NOT warehousing these thugs. Hang them, which is way more kindness than they deserve.
YEP! Money would be better spent putting cameras up in public places where the crimes rate is doubled the average of the surrounding areas. My brother years ago had to work in inner city LA as a phone repair tech. His comment was the 98 percent lived in fear of the malevolent 2 percent. Getting the two percent of the street would go a long way to reducing violent crime..
I agree that recording video cameras COULD make a bit of impact. Unfortunately, I do NOT think that they WOULD under our prevailing circumstances.
The individual pursuing a criminal career would have to be convinced that he is likely to be: observed, identified, tracked-down, arrested, prosecuted, convicted, and imprisoned for a LONG time. If the probabilities of all these preconditions are high AND the term of imprisonment is LONG enough, then you have a deterrent effect. Cameras can improve identification; just one factor.
The kink is that we have as high an incarceration rate as is politically acceptable. A 10% increase in prison cells won’t lengthen imprisonment terms enough to have an impact. A 100% increase in prison cells might lengthen terms enough to create a deterrent. But the voters won’t tolerate either the expense of doubling prison cells nor doubling the man-days of prison terms.
We could repeal all drug laws and release all prisoners on drug crimes. That could double our available capacity for violent crime. However, this isn’t likely either. There is too much opposition to repealing drug laws. Most prisoners on drug crimes would resume careers in violent crime. Doubling terms served for violent crime might not prove to deter recidivism.
Fundamentally, our criminal justice system is operating on a basis of catch-and-release. So much so that length of prison term is NOT a deterrent and the probability of being identified . . . convicted is too low to make any term in prison an effective deterrent.
The only prospect for deterrence that seems plausible to me is hardening targets. Stronger doors, higher fences, burglar alarms and armed victims. Most criminals will be deterred from a life-of-crime if they concluded that they can’t succeed in stealing money or property. They can’t break-down doors; can’t climb fences; can’t get-in/get-out before the police arrive. Robbery with a high probability of getting shot is a deterrent.
We, the victim class, can choose to “refuse to be a victim”. We can install harder-to-penetrate doors and windows. Businesses can harden their security. (Assume that it cost $5,000 each to up-armor each home and $50,000 to up-armor each business. These one-time capital costs would probably be recovered by society in savings from losses not incurred over the next 5 – 10 years.) We can keep guns at home and carry on the street. These measures COULD work to slow the migration of idle shiftless teenagers into a life-of-crime, beginning with property crime and ending with violent crime.
Whether these shiftless teenagers will pursue basketball or homework can’t be predicted. Conceivably, deterring pursuit of a life-of-crime might result in a change of culture; I’m not optimistic.
I think we have approached the limit of what our society is WILLING to do to constrain crime through the wielding of the blunt instrument of the criminal justice system.
The way to get rid of the 2%is to arm and organize the 98%. Police can’t be everywhere and frankly not all of them really care about crime prevention. An engaged armed citizenry that is organized to protect each other would put those thugs out of business
Tim C/18Aug15@05:38,
There’s actual historical precedent for the 2% to do so, if they have the requisite nerve & discretion.:
Link: Northfield, MN 1876
Link: Coffeyville, KS 1892
Link: Athens, TN 1946
Link: Skidmore, MO 1981
As the above items clearly show, the fine ol’ American tradition of restituo tranquillitas sine habenae permissum is eminently effective &, if things continue their downward slide, one that may see a re-birth of popularity w/ the (currently) non-criminal portion of the populace.
“On its face, the idea that every gun sale would be accompanied by a background check sounds like a good idea.”
Perhaps to you. Definitely not to me.
Even the Founding Fathers would have found it a good idea, because they understood that there are some people who shouldn’t have firearms. The only question is who does it and whether records are kept.
I say let the NRA, GOA, and JPFO set up a foundation to handle it, and keep no records. For thoroughness, all hard drives would have thermite packs around them so if the feds ever showed up wanting to dredge for any traces of identification of purchasers, the hard drives get reduced to slag.
That argument is made up out of whole cloth. Where did the founders ever state they wanted background checks? Where did a single one of them say they were concerned with prohibited persons getting guns? Utter nonsense.
Who exactly did the founder feel should be bared? And the source please.
Slaves could not buy guns
I don’t remember ever reading any quotes from the founders that say that. Rights apply to all free men and women.
I say GTFO
“I say let the NRA, GOA, and JPFO set up a foundation to handle it, and keep no records.”
We PotG ought to give more thought to the possibility of “self-regulation” as an alternative to government-regulation. This is a strategic idea, not a tactical approach.
In principle most of us object to any form of gun-control regulation. We are content with the common laws against murder, robbery, assault, etc. And, yet, we are dealing with a population of voters who want some kind of regulation even though they remain unconvinced that it is effective.
Some industries, e.g., stock brokers, have dealt with the regulation issue by substantially regulating themselves. They form “self-regulatory organizations” that write and enforce the rules to which their members consent-to-be-governed. This puts the government regulatory agency in a back-seat.
By way of illustration, why does it make sense for Congress to prescribe a 20-year retention period for 4473 forms? Why does Congress require FFLs going out-of-business to turn over their archives to the ATF? Wouldn’t it make much more sense for the FFL’s organization (presumably the NSSF) to regulate the keeping of 4473 forms? How about running the traces originated by Law Enforcement. Thereby, the self-regulatory organization could balance the usefulness of 4473 retention for LE-traces vs. the burden of record-keeping. No doubt, a self-regulatory organization would see fit to cut the retention period from 20 to 10 or even 5 years. (Incidentally, that would render the FFLs’ archives a much less tempting basis upon which to build a National Registry).
The strategic question we face here is: Can we – the users and dealers – can regulate guns more effectively and in greater consistency with liberty; or, shall we remain in the tender hands of Congress and the ATF?
So far, gun users and dealers have answered: No; we won’t. Until Congress repeals its laws one-by-one, we prefer to live with the existing system of government regulation without our consent.
Is our answer rational? Does it serve our own best interests?
“I say let the NRA, GOA, and JPFO set up a foundation to handle it, and keep no records.”
The problem with mandating background checks is that, to enforce the mandate, you have to keep records. How else do you prove that the background check was done in accordance with the law? If no records are kept, what’s to stop someone from making a sale without the check, and just claiming he did if he’s called out on it later?
Background checks are expensive, useless security theater that prevent exactly zero determined criminals from obtaining guns, while providing the government with far more information than it can be trusted with.
Actually you can have a background check law with no records. Anti gunners never try to pass one though, because they are only interested in background checks to hinder gun purchasing and as back door to registration.
Current background check laws are Basicly a black list. If your on it no gun. What we need is a white list. Everybody who is eligible is on the list. Not on it then no gun( or appeal process if it’s a mistake). Under current law, for most of us we do the check when we buy the gun. If you have a CHL in many states you just show the license. Instead we could just make potential gun ownership an enforcement on a drivers license or ID card. It would be like organ donor or motorcycle driver. And we could make the background check automatic when you get your license.
I proposed a solution to my senator about the mental health issue. I’m a 2nd Ammendment supporter and a psychiatrist so I have a unique view. I’ve never found anyone yet who has a problem with my suggestion, yet my senator sent back a form letter about banning magazines. *sigh* If anyone wants to listen there are some solutions that everyone can support but instead its just a political football.
So, please write your ideas up as an article for all of us to read and comment on and send it to Robert or Dan at [email protected]
You ‘ll never know how far your idea can go until you let it fly. This is a tough audience but there are a lot of really good people reading this every day and you may just get something going.
Thomas Paine did the same thing way back in 1776 when he wrote “The Crisis” and published it in his “Common Sense” pamphlet.
“These are the times that try men’s souls”
Seems to fit our current situation, eh?
I agree; please write-up what you have to say on this topic.
I think the mental health criteria for making one a prohibited-person are the greatest avenue for abuse available to the Anti’s. The first thing we need to work on is narrowing the criteria for which DSM diagnosis are disabling. It makes no sense at all to preclude a person from having a gun if he is diagnosed as an incurable victim of aerophobia. TSA won’t let you on the plane with a gun anyway.
(Except, of course, if you are a Federal agent authorized to carry a gun; in which case, you are empowered to fly with your gun even if your psychiatrist has to strap you into a straight-jacket to get you on the plane.)
If the psychiatric community can’t produce empirical evidence for a correlation between a diagnosis and propensity for violence then that diagnosis can’t be justified as a prohibiting criteria.
Daily Kos does the same thing — they effervesce over the titles and don’t look at the details. In fact I suspect they refuse to look at the details, knowing there will be something to object to, and they have no intention of exposing themselves to something that might require rational thought on the matter.
Journalism … bwa ha ha ha ha ha! Most publications and video “news” channels these days distribute nothing more than propaganda, pure and simple. Of course I know that Nick Leghorn already knows that. He was being exceedingly gracious.
This is an excellent synopsis of the problems with the “common sense” UBC. Even so, it took me several minutes to read it; whereas, the attention span of the average American is about 45 seconds.
Our huge problem in fighting UBC is that we need a message that can be expressed in 45 seconds that will provoke a voter to think. We PotG are doing a really poor job of this and we need to figure out how to do it better. I wish I had a really great proposal to offer; but, I’m not that clever. Best I can offer is a framework for a pitch.
First, I think that the “screw you” position is a good place to start. We PotG know what we are talking about and the Anti’s don’t. We will use our voting power to defeat any gun control proposal that the Anti’s try to force upon us without our consent.
Second, we will not comply. We have not complied with the most recent attempts to force gun controls without our consent and we won’t comply with UBC. If the voters want to pass a law which will be ignored by both the lawless and the law-abiding they are foolish.
Third, law enforcement officials will not attempt to enforce UBC except in extremely anti-gun precincts and then only to destroy the lives of peaceful taxpayers.
Fourth, UBC is totally impractical when pressed to its limit of “Universality”. A husband must run a BC on his wife to give her a gun? Even to leave her in the house with his gun each morning when he leaves for work? There is no practical way to extend NICS BCs much beyond their original scope – the gun-shop sales floor – that comes anywhere close to “universality”.
Fifth, UBC is really nothing more than a smokescreen for a proto-national gun registry. That is flat-out out-of-the-question. Congress has consistently resolved not to allow a national registry. The attempt to enforce such a registry would result in universal non-compliance if not civil war.
Sixth, a BC at point-of-sale is futile. The ATF and local law enforcement puts a very low priority on investigating and prosecuting straw-purchasers under the present law. They get it. They won’t put any higher priority on prosecuting transfers under UBC. Criminals and crazies will get guns from the black market no matter what legislation is passed.
Seventh, law enforcement puts a fairly low priority on prosecuting violent crime with guns. Until prosecutors stop plea-bargaining violent crime with guns we can’t expect to see any law enforcement impact from any attempt at gun control.
Re: “we need a message that can be expressed in 45 seconds that will provoke a voter to think”
My Solution:
If the totality of what you really want is universal background checks, the answer is simple and easy – give anyone free, anonymous, public access to the federal NICS background check database of persons prohibited from owning firearms and then tell private sellers if you sell or give a firearm to someone and don’t retain a piece of paper that documents you did a favorable NICS check on the buyer, you could be held liable if they commit a gun-related crime. There is no reason to get the government involved any further in the process unless you have other goals in mind like a federal registry of all firearms.
would free, unlimited access to the dB mean usage is assured?
Let’s just say we agreed to their “common sense” gun laws.
Would they shut up? No they would not.
The next time someone shot up school they’d be screaming “Confiscate now!”.
Laws restricting the purchase of a firearm should mirror restrictions to vote…simple common sense.
Stopped reading as soon as I saw “common sense”….propaganda red flag statement that has few equals.
You do realize that Nick Leghorn was NOT promoting universal background checks nor registration, correct? He was illustrating the problems with “common sense” approaches to background checks and registration.
Yeah, what part of my post made you think I was saying that Nick Leghorn was promoting universal background checks and/or registration?
The part where you said “I stopped reading when I saw common sense” or something to that effect.
I have the grand-daddy of all reasons to nix any form of background checks that collect any data whatsoever, much less outright registration: data security. Our government has illustrated time and again that they cannot keep data secure.
There would be huge incentives for several entities to obtain data that tells who has what firearms in the United States. The first category are State sponsored hackers. An invasion force would love to know who is armed and what they have upon successfully invading the United States. Then we also have terrorist States that would love to know who is armed. Yet another category is an opportunistic government employee, agent, or contractor who wishes to sell the database to people who want such information. Such an enterprising person needs nothing more than a tiny flash drive to walk out the door with such a database. Finally, an ideological fanatic who is a government employee, agent, or contractor would want the database to exact “retribution” on “evil gun owners”.
As for selling such a database, who would want to buy it? I imagine insurance company actuaries would love to get their hands on such a database so they can “adjust” their rates. How about anti-gun businesses who want to punish firearm owners and end their business relationship? Of course we have to consider small time as well as organized crime who would give their left arm to know which homes had which firearms.
No thank you.
Here’s one gun control policy that Democrats and Republicans can both get behind.
FU to everyone trying it. FU in the goat-a_ _. FU, F everything important to you, go F yourself your kids and your dog you lame POS.
If you can’t get behind that policy, then FU.
Lol, is that a Jenny McCarthy approved message?
The dog too?
Mother Jones- like I care what they write.
So when is Mother Jones going to publish “Three Reasonable Abortion Restrictions That Democrats Can Actually Support”?
We can — rightly — complain about background checks all we want. And produce reams of data that show they don’t reduce crime rates.
But when the typical American has to submit to a background check to rent a house, apply for a job, get a credit card, open a bank account, etc, then the population at large has already been desensitized to having to submit to background checks. And some of these background checks are more intrusive than NICS. So why should the average American give a crap if gun owners have to submit to background checks, too?
This is, unfortunately, a losing issue for us in the long term.
“. . . typical American has to submit to a background check to rent a house, apply for a job, get a credit card, open a bank account, etc, then the population at large has already been desensitized . . . ” That is an EXCELLENT insight.
I think we PotG are failing to take a strategic approach to the BC/NICS issue. We ought to think carefully about BC/NICS and realize that we can turn it to our advantage.
The law is that you can’t HAVE a gun if you are a “Prohibited-Person”. If the police find a P-P with a gun they will arrest him. The police will identify P-P when they find their names in the FBI’s NCIC database. THIS – and not NICS – is the system we have used since 1997 or so to distinguish the 2A-disabled from the People who retain their RKBA.
The NICS law plays a relatively minor and incidental supplementary role. It inhibits P-Ps from shopping in their LGS. Instead, P-Ps must send their 2A-(girl-)friends to shop or browse the black-market. Prohibition didn’t shut-down the black-market for alcohol; the war-on-drugs didn’t do any better for pot; there is no reason to imagine how the war-on-guns will close the black-market for guns.
The only thing that will stop a BG with a gun is a good-guy with a gun; often he will be waring a badge and have access to the FBI’s databases via NCIC. This much – NCIC – we PotG can support; in any case, NCIC isn’t going away.
Our objection – properly identified – ought to be on the 2A-disabling criteria that make one a P-P. And, it is here where your insight (rent a house, apply for a job, get a credit card, open a bank account) comes into play. So, Mr. Sixpack, so what’s interesting in your background? Ever smoke a joint? Did your wife ever press charges against you for misdemeanor domestic violence? Have any mental issues? Ever have a fiduciary handle your financial affairs? Well, then, shouldn’t any records of any of these events be reported to the FBI?
Certainly, you agree that each and every one of these criteria is a “reasonable” basis to deprive you of a gun (and, consequently, your ability to defend your life and your loved-ones). And, of course, you have ABSOLUTE confidence that Congress will NEVER allow the FBI to allow Law Enforcement access to these records for any other purposes. Nor, will any landlord, employer or bank ever get access to any of these records. You DO trust your Congress and the FBI implicitly; don’t you? You are a loyal American aren’t you?
As soon as Mr. Sixpack begins to recognize the bigger picture he will start to share our concern for just which sorts of records get compiled into FBI databases. Once a given kind-of-record gets into any centralized database there is just about no means of limiting access to that record to the very narrow purposes to which it’s supposedly authorized.
I will not enter into discussion over gun control.
My fundamental ‘Rightful Liberty’ is not open to limitation or discussion to limit. To those who would restrict, infringe or otherwise attempt to control or abrogate my Liberty….go pound copious amounts of extra coarse sand directly up your collectivist-arse.
A ponderism on Rightful Liberty:
“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.” — Thomas Jefferson
That is all.
I am going to steal this.
I believe the Nazis loaded the “mentally ill” on the cattle cars right along with the Jews, Gypsies and others. Slippery slope and all that.
Background checks, where folks who know each other, are pretty easy to get around. Just make up a bill of sale and pre-date the son of a bitch! A copy for seller and buyer.
Just make sure it’s a CASH deal, no paperwork, in case your friend, turns out not to be your friend someday.
I wouldn’t do this with a stranger though. If you want to sell your gun and none of your friends will buy it, take it to a dealer and sell it on consignment. Some dealers charge as low as 10% (my dealer), others considerably more. but its a way of doing it.
Where in the constitution do these carve-outs for people we don’t like exist? If one carve-out, why not more? If 2A is absolute, there are no carve-outs at all, anytime, anywhere. All citizens (residents if you believe the US constitution protects even illegal aliens) are protected by the constitution, 2A included. If there is a single instance where a resident/citizen is denied the RTBA, we are just admitting we agree to those exemptions/restrictions of firearm possession that we think are only “common sense”, like people in jail, or crazy people, or male/female/child abusers. The ruling “common sense” is dependent on the number of votes obtained to pass legislation. If 2A is absolute, there can be no, “yeah, but…” Period. Full Stop.
“If you believe the US constitution protects even illegal aliens) are protected by the constitution . . . ” You have hit on a very interesting aspect of the “absolute” 2A issue.
The RKBA runs to the class defined as “the People”. Now, then, what is the definition of “the People”? Are those younger than 6 / 16 / 18 / 21 members of this class? Clearly, there isn’t any doubt that generally US Citizens over 21 are presumed to be included in “the People”.
One of the prohibiting criteria is renunciation of US citizenship. If you happen to have ever been a US citizen (by birth or naturalization) and you renounce your citizenship, they indisputably, you fall outside of this class. This renunciation is made by a couple thousand US citizens per year.
This is a very interesting case. As a consequence of a voluntary – NON-violent – act that is perfectly legal a US citizen can exclude himself from the class of the People; thereupon, making himself a prohibited person. Does the 2A protect this ex-citizen? No! He has screwed himself out of the 2A guarantee of his natural RKBA.
Why does this prohibiting criteria exist? Apparently, the answer is simply that Congress has arbitrarily decided to express its wrath on this narrow sub-class of individuals.
To put the matter in sharp focus, Congress does NOT make legal aliens prohibited persons. If you are legally in the US you may KBA; you may even buy arms. If you have a green-card it’s trivial; if another visa type you have to jump through some hoops. A green card holder is free to give-up his permanent residency but does not thereupon become a prohibited person. His status reverts to the same status he had before he obtained his green card. Congress punishes you only if you were unfortunate to have been born a citizen or were foolish enough to have become a naturalized citizen.
This extremely narrow sub-class is interesting because it appears – to me – to be perfectly Constitutional and at the same time perfectly unjustified by any rationale of public safety. It’s purely arbitrary and capricious.
Once we puzzle through the ex-citizen then we take-up the illegal aliens. They are also declared to be prohibited persons. Nevertheless, there is a SCOTUS opinion that indicates that aliens who have demonstrated a commitment to remain in the US and have become members of the community, they too become members of the class “the People”. If – and to the extent that – the Federal government does not deport such individuals, are they members of the class “the People” who enjoy the 2A’s guarantee of the RKBA?
The sub-class of illegal aliens is by no means a trivially small or uninteresting class. Notwithstanding whatever animosity we may harbor for members of this class by virtue of their violating our laws, here they are and here they will remain for at least the immediate future. What would we PotG wish to do with them with respect to their 2A rights? In many cases these illegal aliens are the parents of minor children who are natural-born citizens. By tolerating Congress’ designating the parents as prohibited-persons we are tolerating the deprivation of the citizen-children of the means to an effective defense of their persons at the hand of their illegal parents.
Unless and until we have satisfactory answers to these difficult cases we haven’t thought enough about our stand on the “absoluteness” of the guarantee of the RKBA.
You broadened this idea into more than you may have intended.
The ex-communication of someone who renounces citizenship seems to clearly state that un-citizens are not granted the same constitutional (if any) protections as non-renounced citizens. Would an ex-communicated person still resident in the country qualify as an illegal alien? If so, then the circle is complete, where the now non-citizen is granted the same rights as a non-renounced citizen. Would any serious legal mind hallucinate a right for renounced citizens to remain in the country gathering all the same constitutional protections of the renounced country? Apparently so. The notion that illegal aliens have constitutional rights is self-evidently lacking in sufficient mental faculties to be allowed a position of authority in the country. Holding simultaneously that a renounced citizen has no rights under the constitution (as the founders seem to believe), but once same renounced citizen becomes an illegal alien all rights attach is to accept the existence of mutually exclusive propositions as “normal”, which is surly an “insane” thought process.
You need to make a distinction between those rights that attach to “the People” vs. those that attach to “persons”.
The 4A runs to “the People”; the 5A speaks of a “person”; the 6A speaks of “the accused”. If the text of the Constitution is held to mean something then we can’t ignore these terms. We really are quite stuck with them.
Presumably, “the People” is a narrower class than that contemplated by a “person”. E.g., during the Revolutionary war loyalists (royalists) were often disarmed. Do we think that the founding fathers intended to bestow upon royalists a guarantee of their RKBA? Perhaps it is so; but the argument would need to be constructed from the contemporary view of the rights of royalists.
I do not argue here that SCOTUS was correct in its conclusion that aliens who had established their intention to remain resident and developed ties to their community is correct reasoning. It might not be. Nevertheless, if this opinion is construed to be settled law (which I believe to be the case) then one has a problem with an illegal alien who may have lived here long enough to clearly be a member of the sub-class included in the term “the People”.
Another aspect of the illegal alien problem is the alien who has overstayed his visa. E.g., an alien comes to America on a 90-day tourist visa; he brings his gun to hunt. Due to some unfortunate turn of events, he overstays his visa for some few days. That is a misdemeanor and may jeopardize his eligibility to obtain a new visa. It is not, however, a felony to say nothing of not being a violent felony. Shall we hold that this tourist should be made vulnerable to prosecution as a prohibited-person for possessing his hunting arm? I cheerfully admit that he is guilty of a crime: overstaying his visa. He is not a member of “the People” having done nothing to establish any intention of staying permanently in the US. Will you hold that on the 91st day he lost any claim to the 2A protection of his natural right to KBA?
For that matter, if you hold that an alien present in the US illegally can’t possibly have a claim to membership in the class “the People” does that cast any doubt on the claim of a green-card holder? I’m perfectly willing to entertain an argument that “the People” is confined to a very narrow class; perhaps to just citizens. If one holds such a narrow view then he might have to concede that even a lawful green-card holder could – by act of Congress – be deemed a prohibited person.
Now, this creates a serious problem. An American citizen marries an alien and thereby secures for her (him) a green-card. The couple has children who may be in the exclusive care of the alien parent. Can Congress – constitutionally – bar from KBA the alien parent as a prohibited-person until she (he) becomes naturalized?
My conclusion of reading “the people” is the same as in “We, the people…”, in that “the people” did not include temporary visitors (visa holders, if such existed). Reading the Federalist Papers, I cannot conclude that the founders considered foreign-born part of “We, the people…”. However, only the Presidency has a natural citizen requirement, so maybe all residents were included (except royalists/loyalists), until after the country was established, then some accommodation was needed for those royalists/loyalists who remained. Unlike the 14th amendment, I find nothing declaring that all residents (and certainly not indigenous persons) were suddenly citizens of the new United States, but I have not access to the entirety of records of the country.
My last note was noodling over the fallacy of having non-citizens receiving full constitutional protections, when a renounced citizenship person would have some restrictions. ESPECIALLY as the renounced citizen would automatically become an illegal alien, and provided full constitutional benefit, including RTKBA…which had been removed upon renouncing citizenship. Given case law, it seems one can renounce citizenship, and subsequently declare the intention of remaining in the country, holding a job, serving in the military or whatever qualifying proof is necessary to reach SCOTUS status of having full constitutional protections.
I’m not sure where we are in this discussion.
Where the Constitution refers to a class of people with a right as “the People” we have a need to define who is included/excluded from that class. Do we agree on this point?
Certainly citizens are included. Are lawful aliens included? If so, which visa types? Green-card? Student visa? Business visa? Diplomatic visa?
If someone is an alien and is NOT lawfully in the US, then there seem to be two legitimate lines of inquiry:
1. – Assuming there is NO intention to reside indefinitely in the US, should the transition into illegal status automatically trigger prohibited-person status? E.g., suppose a hunter with a valid visa entered into the US but overstayed his visa by a few days. Or, suppose a hunter wandered across the Canadian/US boarder while fishing and camping. He has inadvertently – and illegally – entered the US with a gun for protection against bears. Should we consider him a prohibited-person? To do so seems arbitrary and capricious. In either case our alien visitor was/would-have-been welcome to enter the US. While here during a legal stay we would have permitted him to have guns. But for the inadvertent error of being here illegally, shall we punish him harshly on the pretext that Congress can deny him RKBA because he is not a member of “the People”.
2. – Assuming there IS a manifest intention to remain resident in the US, do we want to apply the pretext of being an illegal alien to deprive this person of the 2A guarantee of the RKBA? We have tragic cases of very young children who were born abroad and brought to the US as infants, young children or older teenagers. These kids have grown-up in the US, speak English, gone to US schools, become working adults. These cases break-down into two sub-classes.
2.a. – Those that we deport simply because they are illegal aliens unlucky enough to get caught. Whether or not they happened to possess guns, they are deported.
2.b. – Those that we do NOT deport. Because our Federal government can’t decide what to do about our illegal immigrant problem these individuals are allowed to continue to live in the US even with the conscious awareness of their illegal status. Shall we use the pretext of illegal status to bar them from inclusion in the class “the People” thereby triggering prohibited-person status? We tolerate their continuing presence in the US while denying them the means to defend themselves.
where we are seems to be having similar but different conversations. not necessarily a bad thing.
to my original point, there is a silly situation where a citizen renounces citizenship (becoming merely a ‘person’?), then states intention to reside here permanently, becoming an in-place illegal alien.
to your point, illegal immigration is not a complicated matter. illegal means just that. it is mind-bendingly stupid to create an environment where someone committing a crime (even if just a misdemeanor) should become a beneficiary of that violation. taking it to a more immediate, personal example….someone moves into your house while you are away. that trespass is a misdemeanor. should that person be evicted? should that person be allowed to remain because, after all, they are here? should that person be provided the sustenance of life from your kitchen? should that person be given an allowance? should that person be eligible for medical care under your policy (for which they paid nothing)? should that person be allowed to bring their immediate and extended family to live in your home (because it would be terrible to keep children away from their parent)?
the idea that it is unfair, unjust or cruel to punish lawbreakers because they have a sad story simply defies logic. emotions regarding law are nice in the news reports, but either the law is a law, or it isn’t. if it isn’t, that law should not be propagated, or should be rescinded. it is lunacy to have laws preventing home invasion if you (the public) do not have any intention to enforce it.
yes, round up all the illegals (including overstayed visa holders). cost is nothing compared to the enormous cost of allowing illegals to be here and/or continue to come here. there is an immigration system is place. it is unfair, unjust, cruel and mean-spirited to punish those who follow the law (immigration) and allow illegals all the benefits of citizenship without the hassle of actually becoming one.
and then there is the idea that immigrants should be allowed (legal or illegal) to come here with the express purpose of re-establishing the culture, environment and sociology of the rat hole they are escaping.
Re: “Let me give you some illustrative examples”
Another example that appears to be overlooked is that all of these laws that have passed in Colorado, Oregon and Washington have no exceptions for the transfer of a firearm between/among single individuals who are living together as roommates while some (but not all) do have exemptions for domestic partners. So the person who moved in after you met him/her at a bar last week may be exempt, but the friends you’ve known since childhood that you’re sharing an apartment with are not. The only exception is if the transferor was in the continuous presence of the transferee which means if a roommate that owns firearms ever leaves them unattended in his dwelling during normal day to day activities he runs the risk of violating the law unless he takes his firearms with him wherever he goes. Since these single individuals are a growing demographic that are assumed to be aligned with the progressive gun control crowd, the opponents of these laws should publicize during the next election that because of the people that voted for these bills, single people living together can’t own any firearms without risking being in violation of the law.
Re: “Background Checks for Gun Shows and Private Sales (79% R, 88% D)”
Currently, there are only 2 ways to legally sell a gun in the US to a private citizen. One is a private sale between individuals (typically like between family and friends) or by a gun dealer licensed with a Federal Firearms License (FFL) from the federal BATF. Only individuals with an FFL can run a background check through the government NICS database of prohibited persons. Private citizens cannot. Note that a person can purchase a firearm online, but the physical transfer of the firearm still must go through an FFL at the seller and an FFL local to the buyer. So if you want to improve the process, you should encourage the federal government to do 2 things:
1) Allow any small gun dealer to get an FFL without having a storefront. Currently, thanks to the Clinton administration’s effort to reduce the supply of guns, you can’t get an FFL if you want to sell guns only at gun shows (See question 18a on ATF form 5310 FFL application at http://www.atf.gov/files/forms/download/atf-f-5310-12.pdf). As a result someone that wants to sell guns but can’t afford the inventory costs, zoning challenges and overhead of a storefront has to sell illegally or discretely at the edge of the law as a “private individual” and hence can’t run a background check. Rather than throwing these “kitchen table” sellers out of the system like Clinton did hoping they would go away, they should allow them to get an FFL and subject them to BATF rules, audits and oversight like they were before the Clinton administration let political anti-gun ideology get in the way.
2) Give anyone free, public, anonymous online access to the NICS database. I don’t understand why a federal database of people prohibited from owning firearms can’t be available in the public domain like federal databases for sex offenders. Unlike the sex offender database, the NICS system is really a go/no go process and no useful information has to be displayed to facilitate phishing expeditions for identity theft other than what was already known by the user making the query. It’s certainly no more revealing than the FAA’s pilot and mechanic license query system, which provides more detailed information on presumably law-abiding citizens. Once this system is implemented, you then tell private sellers if you sell or give a firearm to someone and don’t retain documented proof that says you did a favorable NICS check on the buyer, you could be held liable if they commit a gun-related crime. This would effectively close the so-called private sale loophole and still preserve the anonymity of the parties involved the same way the current background check system does now. If a private sale firearm shows up at a crime scene, the BATF follows their current procedure of using the serial number of the firearm to contact the manufacturer and ultimately the last FFL that sold the firearm to a private citizen to obtain that citizen’s name and address from the ATF form 4473 the FFL is required to keep on file. That citizen is then contacted and produces the piece of paper from the NICS background check that identifies the second private citizen who is then contacted, and so forth.
The real benefit of this proposal is how it can help identify the illusive killer with questionable behavior patterns or mental health issues that is causing so many problems. As it stands now there is no easy, fast, non-bureaucratic method for someone to determine if a suspicious person (client, neighbor, employee, student, etc) is a potential threat to society. If someone thinks an individual could be a threat, a query to a public NICS database would at least tell him or her in a few seconds if the individual could obtain a firearm. Then, armed with that information the appropriate authorities could be notified and they could decide if it was erroneous information or whether to investigate further. As it stands now, if you tell authorities you know a suspicious person they will probably ignore you, but if you tell them you know such a person and by the way according to the NICS database he can buy a firearm, they will probably be more inclined to investigate rather than risk embarrassment later if the worst happens. The same would be true if you see a suspicious acquaintance with a firearm when the NICS query says he’s prohibited from having one. It would also help provide piece of mind and a method for victims of violent crimes to ensure their assailants either on parole or still at large have not been excluded from the database because of some bureaucratic foul-up.
Other specific public safety issues where it would be useful are:
allow potential victims to vet known stalkers or acquaintances under a restraining order
allow gun clubs to vet potential members
allow shooting ranges to vet suspicious customers
allow mental health workers to vet troubled individuals like the Aurora Colorado theater killer
allow resource officers and school officials to vet suspicious students like the Arapahoe High School killer in Colorado
allow the family of the mentally troubled Lafayette, LA killer to verify he couldn’t purchase a firearm
allow police officers to vet anyone they contact – (note the routine background checks performed by police often do not include information about firearms because they don’t directly access the NICS database)
First, Jim, I want to applaud your bravery in even thinking about NICS in a potentially useful way. No doubt, you will start receiving a lot of flack from people who hate NICS for FFLs and are (as I am) terrified at the prospect of UBC.
I think that – politically – gun owners face a great threat from UBC. We had better equip ourselves with as many constructive alternatives as possible to bring to the table whenever another UBC-type bill comes to Congress. If we have no alternatives – only objections – then there is a risk that Bloomberg will write the UBC bill.
One of your ideas – opening NICS to unlimited access – strikes me as intriguing from a very counter-intuitive perspective. Under the present NICS law, access to NICS is so tightly restricted (essentially to FFLs) that our complaints about “privacy” are substantially mitigated. You or I might – one day – have a prohibited-person record entered into NICS; however, knowledge of that fact can become known only to the one last FFL we unsuccessfully patronized. The FFL knows that he got a NICS response of “STOP”, but has no clue why. For the sake of pursuing this discussion, let’s suppose that we PotG ACCEPT that only our last FFL knows we are in NICS.
Now, open access to the whole world; our friends, neighbors, employers, landlords, anyone at all can find out that we are in NICS! Now, the “privacy” issue is blown wide-open. Whereas yesterday the community of people concerned about their NICS privacy was limited to the 100 million of American’s gun owners who might patronize FFLs, tomorrow the community of people concerned about NICS privacy includes all 320 million of us!
Felons have always had to suffer a loss of privacy in that friends, . . landlords have long been able to discover their rap sheets. Misdemeanants probably have some similar concern; but, now, domestic violence convicts will be easily identifiable to anybody – including prospective romantic interests. Illegal aliens who have been caught-and-released by Homeland Security will suddenly be identifiable. And, most important, people reported to NICS as mentally incompetent will suddenly be readily available in NICS.
Clearly, advocates for illegal-aliens, the mentally-ill, VA and SS disabled beneficiaries and even people convicted of DV will become keenly interested in NICS. Having interest in buying guns will not be a prerequisite to being concerned with NICS criteria for becoming a prohibited-person.
Any UBC proposal COULD be countered with a proposal to open access to NICS to subscribers who are NOT FFLs. Access might be limited – as you have suggested – to a narrow class of gun-interests, e.g., gun clubs and gun ranges. You and I both argue for much wider access – possibly open-access to anyone on no pretext whatsoever. Wide access – ultimately OPEN access – raises PRIVACY objections!
And, at this juncture, we PotG WELCOME the objections of (progressive) advocates for illegal aliens, the mentally-ill and individuals with DV convictions. All these noble (i.e., progressive) advocates will be vociferous in complaining that their constituents’ privacy will be invaded.
Thereupon, we PotG take the position that Congress must choose:
1. – abandon UBC;
2. – accept that making gun transferors/transferees drive to an FFL on each transfer occasion dooms UBC to being Universally IGNORED;
3. – open wider access to NICS far beyond FFLs AND then substantially reduce the prohibiting criteria to satisfy the privacy objections of noble advocates for illegal aliens, mentally-ill and DV misdemeanants.
The obstacle of #3 will drive Congress to consider the problem of #2. That’s a good place from which the PotG to argue: ‘Go ahead, Congress! Pass your UBC. We will NOT Comply!’ (Or, put more simply, ‘Screw you!’). This argument is apt to lead Congress to conclusion #1: I.e., UBC can’t be passed into law because it can’t be enforced.
i have seen offerings online for selling firearms “face-to-face”, “in person”, “cash only”, “not an ffl”. i presume these are sellers trying to avoid background checks. no idea how many of these transactions are actually completed.
it is these type transactions that are part of the “gun sales loopholes” the grabbers are trying to sell as rampant.
Why wont anyone discuss the biggest elephant in the room. The Federal government has no constitutional power to regulate in state trade. All the “firearm” laws are NOT firearm laws, they are commerce and taxation laws. Even the (yes I’m going to keep harping on it) Safe School Act is a commerce law.
harping here is fun, but has no effect on reality.
just so you know, we are all benefiting from the fact that the left has yet to obtain enough power to proclaim that all commerce is interstate commerce because materials for whatever purpose are moved on federal roads, or are transported by a company regulated by the federal government, or the lack of commerce (refusing to buy guns and ammo) violates the commerce clause. the entire integration of the southern states began with a toothpick.
The Brady Bunch specifically exempted private sales to get it passed. Now they want to apply it to even sharing a gun for recreational shooting with no transfer of ownership. When dealing with the antis today’s concession is tonmorrow’s “loophole”. Slippery slope anyone? .
Support of any of this requires me to believe that the people making these proposals are acting in good faith, that they truly want to keep guns out of the hands of criminals and the mentally ill.
They do not. They only care about stigmatizing and restricting any and all gun ownership. Except for their own bodyguards. This has been shown time and again.
Their motives are plain for anyone with a critical eye. So until they can concede that my Constitutionally protected natural rights are not a “problem,” they can sit on it and rotate, in that order.
Mental health is the avenue to gun control..
It was used to confiscate guns in Eastern Europe prior to WWII..
American Psychiatric Asso: Half of Americans are mentally ill..
After crafting by politicians and Media all will be crazy except for them..
300 million prescriptions for psychiatric drugs were written in 2009 alone..
Your children on medication for ADHD?
Single woman with children diagnosed with depression?
Be careful what you ask for…….
“Mental health is the avenue to gun control..”
And, for precisely this reason, we need to be thinking strategically about how to counter the Anti’s efforts.
The really crazy people who shouldn’t have guns ought to be locked-up in asylums for their own good. Were that done then we wouldn’t have a mental-illness criteria for making someone a prohibited person. But, this is just not going to happen in the foreseeable future. Far too many dangerous crazies are going to be left to sleep under bridges.
Therefore, it is politically infeasible to pursue any strategy to eliminate the mental-illness criteria for prohibiting a person 2A rights. Any such strategy is extremely foolish on our part.
What we ought to be doing is narrowing the mental-illness criteria to those diagnosis that manifest a material disproportionate risk of violence. That ought to be the primary consideration. The secondary issue is to ensure that a person is given due-process before being deprived of his 2A rights; and, then, allowed a feasible means of recovering his rights after evidence of the diagnosis has dissipated.
Our neglect of the vets with PTSD and those who have fiduciaries have wetted the Anti’s appetites. They will try and try again until we put-up a formidable opposition.
This was the situation with my friends’ Male was a dolt, but his sister was quick to pick up almost any