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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.

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    • On the other hand, why bother with most laws then? Killers gonna kill, so clearly our homicide statutes are ineffective. So, why bother with them?

      If the goal is to discourage anti-social behavior, you could argue the UBC creates a path of greater resistance, as it gives straw purchasers throughout the gun chain a level of liability that wouldn’t have previously existed.

      • Katy, laws against things like murder are what we call mala in se laws. They apply to things that are wrong and harmful in themselves. They serve primarily to allow society to punish those wrongs after the fact. Deterrence is a secondary concern.

        Gun control laws are mala prohibita laws, they forbid things which are not wrong themselves, but are enacted in the hopes they will prevent some other wrong. If such laws fail that purpose of prevention, they serve no purpose at all.

        • With some things there may be agreement of wrongness – murder, etc. but where does that line stand?

          is skipping school inherently bad, or are we trying to prevent the general degradation a society experiences when there is a lack of education? If Johnny skipping school (be it public, private, or his parents neglecting their home schooling), what’s the harm? Why bother with truancy laws? We don’t excuse the occasional class skipper, why should we excuse the private gun seller? Uniformity avoids governance by exception.

          (I’d never noticed this, but the UBC folks are backing themselves into a zero tolerance policy corner. How can they live with that?)

        • “Uniformity avoids governance by exception.

          (I’d never noticed this, but the UBC folks are backing themselves into a zero tolerance policy corner. How can they live with that?)”


          They have a visceral hatred of guns so they will just blow off the inconstancy.

          Because guns are evil (in their intellectually-challenged brains).

          Someone once said (to the the effect of) ‘Progressives, above all else, are Progressives *first*’.

          I initially thought that was an extreme position

          There’s more than a bit of a grain of truth in that…

        • KATY,
          Since Johnny is a minor, a child, he does not have the same rights and privileges as an adult. He does not have the right to skip school, because society (and his parents) have a responsibility to ensure that he does what is best for him. Why? Because Johnny is not mature enough to make mature decisions about his life, and he must be protected from his immaturity until he is old enough to make mature decisions. Once Johnny becomes a mature adult (18 or 21), then he will be allowed to make his own decisions, and be have all the rights, privileges, and responsibilities that every other adult has.

          Ask yourself why you would not allow a 2-year-old to cross the street unattended. Those same reasons apply to everything Johnny may want to do (or not do) until he is old enough to make mature decisions without adult supervision.

          So your Johnny skipping school example was a bad example for your case.

          For adults, on the other hand, our Constitutional rights and our other freedoms (most of which apply only to adults) should never be violated, except for a very compelling reason. Mala Prohibida laws often have a less than compelling reason. There are several other mala prohibida laws (besides UBCs and all the other gun control laws), some of which probably should be repealed, although everyone of them can be debated feverishly on both sides. For example, the drug war, driving under the influence, anti-smoking taxes, auto insurance, and I could go on forever listing more of them. Personally, I don’t like any of them, because they make criminals out of many people who have done no harm to other people or society.

      • Katy,

        The core problem is that universal background checks impose a burden on EVERYONE in a futile attempt to prevent a crime before it happens.

        Riddle me this. Violent criminals have used just about everything to kill their victims. Such items include scarves and pillows (suffocation); hammers, crowbars, bats, and pipes (bludgeons); gasoline and matches (arson); and rat poison, among other numerous possibilities. Do you support universal background checks at Federal _____________ (fill in the blank) Licensees before anyone can purchase a pillow, scarf, hammer, crowbar, bat, pipe, gasoline, matches, and rat poison? Remember, these universal background checks cost upwards of $50 at a Federal (blank) Licensee and will require many people in rural areas to drive upwards of an hour (one way) to complete the background check.

        Here is a much more pertinent question. Suppose terrorists begin a ruthless, systematic, and (unfortunately) highly successful campaign of sneaking up behind unwitting victims and fatally bludgeoning them with frozen beef roasts. At what threshold do we require universal background checks before people can purchase beef roasts at grocery stores? What if terrorists killed more than 10,000 people per year with frozen beef roasts. Would that satisfy the threshold? What if terrorists killed 50,000 people per year with frozen beef roasts? Should we require universal background checks then?

        • Never been bludgeoned by a frozen beef roast. Than goodness. I have, however, been spanked with a frozen halibut. 🙂

      • @Katy: Please explain how a UBC provides a level of liability that did not exist before ? Straw purchases are already illegal, aren’t they ? I must have missed something. Which is very possible as I am not a lawyer and I don’t even play one on TV.

    • Right. In fact, RE what you said and “Criminals are not beholden to laws” from Chip’s post, criminals are actually pretty much exempt — and SCOTUS did apply this to certain firearms things such as registration requirements — from some of these laws because of the 5th Amendment right against self-incrimination. A prohibited person being forced to proactively or tacitly admit to the gov that they’re a prohibited person is a 5A violation…

      • Except that the law specifies that nothing in an NICS check ca be used for prosecution or introduced as evidence in a prosecution. That’s a blanket immunity, so self-incrimination doesn’t apply.

        I know I posted basically the same thing you did a few weeks ago, but I’ve had some ‘schooling’ in the actual laws on the books since then.

  1. Would it help the argument if we passed a law against stealing firearms? Surely that would cut into those numbers, right?

    I can support UBC when we can find a way to imprison for 20 years anyone who attempts to, or even proposes to, use them to create a registry. Since that is the ONLY goal of UBC, I’m not holding my breath.

  2. Nicely written response.

    When chip posts a query, he uses a lot of commas, using them to further restrict the circumstances of results. He does not leave it as a broad spectrum inquiry, possibly in fear that he might not receive the results he intends or that the readers might interpret the question incorrectly.

    Background checks merely further the criminal activity of a person attempting to obtain a gun through legal means to use for illegal objectives. It will not stop, but merely slow them from obtaining a gun. The naive might be stopped but will soon adapt; I’ve seen it first hand where the $39 replica air soft from wal mart is altered.

    • I’ve seen it where shoot on sight IF holding an RPG, turns into make homemade EFPs., body bombs, live donkeys with wires coming out of there a_ _. . .
      There not trying to get rid of ALL guns, people would come to America and kill them on live tv.
      They are just trying to disarm you for those people.

  3. Criminals are not beholden to laws.

    Sounds like it’s back to the drawing board politicians… time to ruminate a little more about how to stop criminals from being criminals without being a PITA to the law-abiding. Good luck!

    • Make it easier and easier for law-abiding people to protect themselves from criminals (with deadly consequences). Eventually, the smart criminals will find a safer line of work, and the stupid/crazy criminals will not live to repeat their crimes very many times. WOW! Look at how that crime rate went down!

      It has worked everywhere it has been tried. Detroit is a perfect example. When Police Chief Craig (I think that’s his name) told the people of Detroit that they should arm themselves and start protecting themselves, because the police force could not do it anymore with their reduced budget, the crime rate in Detroit plummeted. An armed citizenry is THE BEST deterrent against violent crime.

      Now THAT’s what I call common sense gun laws. Laws that actually do what they are supposed to do.

  4. Extremely well said. Unfortunately the obvious logic demonstrated will fall upon deaf ears among those who champion UBC’s. I will add, from my perspective, the “elephant in the room” that many do not wish to acknowledge or address for fear of being labeled a “kook.” That being that for a UBC to be “effective” it would require universal registration and universal registration would lead to forced confiscation given the proper backdrop (mass shootings of high profile targets, etc….)

    Just an observation from someone with way too much time working for the feds in one capacity or another.

  5. Here’s a question everyone should be asking: what other fundamental right do we make people undergo a background check before exercising it? (Cue Jeopardy music)….

    The answer is “what is none?” We don’t make anyone undergo a check to make sure their rights to free speech, religion, assembly, press, travel, to be safe in their homes, has not been taken away. Not only that, but only the most far out wackos would.even consider it.

  6. Chip is right on. Background checks do not work, they are a needless hassle and they will not stop criminals. They are put out there so left of center statist can tell their constituents they are doing something about guns. Even at best they are a tyranny of clerks. If statist believe that families are going to use background checks to gift a gun they are myopic dreamers.

  7. What I said stands, using nothing but the constitution to defend your position is a genetic fallacy. It’s the easy way out. It’s saying “because the founding fathers were so smart and knew so much, this is the way it is, and this is the way it must be”. Holds up well in court, but outside of legal proceedings, isn’t a valid way to win an argument.

    Maybe you could say that the reasoning behind the 2nd amendment still applies today and this would go against that reasoning. That’d be a much more well supported argument. As it is you are just waving the constitution in front of people’s faces and saying “SEE?!? DO YOU SEE WHAT IT SAYS?!?”. That’s not going to get anyone to change their opinions.

    Anyhoot, I appreciate your feedback, even the bits about me being dense (tho really I’m pretty chubby, so I’d probably be neutrally buoyant at best), but I’m going to attempt it anyways, because I have the freedom to express my opinions and propose legislation and solutions. Woohoo America! — Taylor W.

    Yay! Lets write software that filters some people out of their constitutional rights, because nothing is more important than safety – not even freedom.

    • “because the founding fathers were so smart and knew so much, this is the way it is, and this is the way it must be”. Holds up well in court, but outside of legal proceedings, isn’t a valid way to win an argument.

      So referencing a document, that is supposed to be the basis for laws of the land, and a statement of the “rules” isn’t “valid” because you say so? I would offer just the opposite – that many of the issues that we have had, and continue to have are exactly because we have allowed people like that look at the 1A, 2A, 4A, and get to somehow say “Yeah it does say, but….

      The author was appropriately excoriated. Did he learn anything? If he was able to twist logic to the point he started from, highly unlikely.

    • While I don’t entirely agree with Taylor’s argument, we must not remember that the 2A is only one SCOTUS Justice away from extinction (see the 5-4 votes in Heller and McDonald). Clearly, the existence of the Bill of Rights alone is not enough to protect our freedoms.

      Therefore, arguing that it’s a Constitutionally guaranteed right is not enough. THE PEOPLE need to understand why the RKBA is so important. THE PEOPLE need to understand the history behind it, and the history of what happens to nations that don’t have it.

      THE PEOPLE who elect our presidents and senators, who then appoint and confirm our justices, need to understand the critical importance of all of our rights in order for our Constitution to survive.

  8. Over 240 comments in that thread. Needless to say the ttag community had a few things to say with regards to one of their own attempting to further an Antigun agenda. Poor guy got completely incinerated in the comments.

    • Of all the code monkeys I have known, there’s only two mindsets – design the most simple and light algo you possibly can (which takes time and effort) or just keep laying in lines until you get it to eventually belch out an answer.

      The old approach was driven by necessity, only so much memory and processors were single MHz (or less!). The new approach is the OPs – who cares that half/most of it doesn’t work, I got an answer. Maybe not the best, but I got one.

      Critical thought is a mindset lost on the brainwashed kids being churned out of the increasingly conformist sausage mills. Privacy is dead, and your are to enjoy submitting to the government, no matter how illegal the program is.

  9. ‘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.’

    As with most gun control laws this is a feature not a bug. The purpose is to discourage the individual from securing his or her own means of self defense, leaving them at the mercy of criminals until the state comes to the rescue (sic). This is how government works. If they can’t abolish the Second Amendment they’ll do everything in their power to subvert it.

  10. “Do background checks further an important government interest? ”

    (Chip then disagrees)

    On this, I disagree with the Chip-Meister.

    The ‘important government interest’ is the creation of the machinery to ease the confiscation of firearms from the citizens.

    The very nerve of those ‘citizens’.

    Getting all uppity and thinking they are ‘free’…

    • On this, I disagree with the Chip-Meister.

      The ‘important government interest’ is the creation of the machinery to ease the confiscation of firearms from the citizens.

      Actually, we agree on that point. However, judicial review must only consider legitimate government interests. Mass confiscation and mass felonization are not legitimate government interests, even though they are the actual government interests furthered by background checks.

      • And Obamacare wasn’t a tax, until it was! Thank Chief Justice Roberts for that!

        Relying on SCOTUS to defend our essential liberties is a less than dependable thing.

        • I think Roberts’ reasoning there was that since so-called Obamacare was essentially lifted from the Heritage Foundation, it was the most GOP-ish medical care legislation possible to get, so he upheld it rather than risk Congress in the future passing something that would look like what Canada has.

          Political reasoning trumps legal honesty….

        • “Relying on SCOTUS to defend our essential liberties is a less than dependable thing.”

          Two things;

          The second amendment, along with the other ‘bills of rights’ amendments only partially enumerate our unalienable rights. Being unalienable, even repeal of the amendment does not remove the right.

          The right to keep and bear arms implies that it is us…the people, rather than SCOTUS…that must be relied on to defend our liberties.

      • Mass confiscation and mass felonization are not legitimate government interests,
        They are to the the government officials.

      • However, judicial review must only consider legitimate government interests.
        Patrick Henry would state that judicial review would be comprised of Judges who were in collusion with the Executive and Legislative branches of government. He probably was right watching SCOTUS in action.

        • Don’t forget the NSA knows all their secrets, and one must wonder how many of them are vulnerable to blackmail.

    • The ‘important government interest’ is the creation of the machinery to ease the confiscation of firearms from the citizens.
      Government power is an end unto itself.

  11. Many thanks Chip!!! I always feel a little smarter (or at least better informed) after reading your posts… Carry on Sir… God Bless…

  12. Sooo….are we now safer since The Gun Control Act of 1968 (GCA or GCA68) ?
    I find the whole ball of wax to be a steaming pile of pooh.

  13. A beautifully and logically articulated argument against UBCs.

    Unfortunately the perennial counterpoint is: “I have a ‘right’ to FEEL safe.”

    Oh! And, don’t forget…. “We have to do SOMEthing.”

  14. Chip if you ever run for office I will send money to support. We need more logic in governing.

    I think most of us know the 2nd amendment arguments to fight UBC with. I think there is another argument as well.

    In fighting UBC (and even a lot of current sales ) could we not argue that guns that are sold with state lines are not under federal jurisdiction since it would not be interstate commerce. Under this argument the Feds really only have juidiction over sales to gun stores and internet sales which the Feds already regulate (poorly) via FLL’s and the BATF.

    • The commerce clause. May it rest in peace alongside Mr. Filburn and his wheat fields. It ain’t coming back no matter how much some of us wish it would.

      • The commerce clause is alive and well. It is the continued broadening of its definition and systematic abuse that has caused we and poor Roscoe to suffer.

  15. Why not enact a law that revamps/enhances the existing FBI NICS system such that it doesn’t often stall/delay during checks.

    Also create a law such that the originating purchaser (i.e. the original person that purchased the firearm through an FFL with a NICS lookup) to be charged with a specific crime commensurate to what the person they transferred in private, committed? Personally I would never sell a firearm through a private sale without an FFL as I would like it recorded somewhere that the firearm no longer is in my ownership. This way the individual conducting the private transfer must trust the person that they are giving the gun to. If the person that receives the firearm commits a crime, the original owner who did the purchase through an FFL is now on the hook…

    • I’m with ya Heather…I would trade UBC if they’d get rid of the ridiculous NFA clusterf&@k and $200 bribe tax just to buy a suppressor

    • “Also create a law such that the originating purchaser (i.e. the original person that purchased the firearm through an FFL with a NICS lookup) to be charged with a specific crime commensurate to what the person they transferred in private, committed?”

      By that logic, a car I bought new and sold 5 years later to someone who drives it while drunk and kills someone means I’m the one charged with vehicular homicide.

      Sorry, Heather.

      Logic fail..

    • “Also create a law such that the originating purchaser (i.e. the original person that purchased the firearm through an FFL with a NICS lookup) to be charged with a specific crime commensurate to what the person they transferred in private, committed?”

      This is insanity. Where does it stop? If I buy a butcher knife at a garage sale and stab someone with it, is the knife’s original owner guilty of murder? If I buy a baseball bat at a sporting goods store and beat someone with it, is the store’s owner to be charged with assault? After all, he didn’t do a background check!

      Would this be a good place to point out that lots of murders have been committed with guns by people who purchased them legally and passed the NICS check? Background checks are feel-good theater at its finest. It’s likely that they cause more crime than they prevent, as they create a bigger market for stolen firearms.

  16. Firstly, Ain’t NOBODY gonna take my guns no way no how…just to establish my leanings. However, on UBC while I certainly understand the fears at the very mention of the term, I have been thinking about it from an alternate approach to the gut reaction of “They’re gonna try to take away my guns!”
    I thoroughly enjoy collecting and shooting firearms of all types and love buying, selling, trading for new unusual or just different models to test and try out. I’ve met lots of great folks that way and never had any issues. I do require positive identification and complete bill of sale (tho not required) but honestly it really wouldn’t bother me if a potential buyer/seller/trader and myself just had to meet at a centrally-located FFL & spend 5-10 mins to run the quick background (or not with a CHL). As a seller/trader at least I have some level of knowing the person I am providing a gun to can pass a background check. As a buyer, I wouldn’t mind the process either as I’m fairly confident somebody trying to sell a stolen gun likely isn’t going to want the attention of this process. BLASPHEMY I KNOW! 🙂
    Just throwing that bone out to gnaw on for gits and shiggles…I HATE gov’t 🙂

    • The thing is, there’s nothing stopping you from doing exactly that right now. If you feel like it gives you peace of mind, then go ahead and go to an FFL and do the transfer that way. Yet, you admit that you’re not going through that process now. Obviously, it’s not as painless as you make it out to be, or you’d already be doing it, wouldn’t you?

      If something is a good idea, and confers a worthwhile benefit, then it doesn’t have to be mandatory. Usually, if you have to make something mandatory, it’s because people recognize that it’s either pointless or against their own interests…

      • If something is a good idea, and confers a worthwhile benefit, then it doesn’t have to be mandatory. Usually, if you have to make something mandatory, it’s because people recognize that it’s either pointless or against their own interests…

        You sir or ma’am win the Intertubez for the month!

        This comment should be the basis for another post!

      • Hey Stinkeye (great name btw! LOL), appreciate your response. I was actually intending more to project a larger picture rather than just a small specific example.
        It’s not that I place the actual NICS database as the end all be all, any database is only as good as the data points put in it….shit in, shit out kinda deal. I actually run my own background checks just using a combination of several commercially available online programs. They’re good enough to at least sniff out obvious disqualifying criminal history and general patterns of questionable behavior. Then it’s my choice whether to provide the person with a gun or not. So yes, 10 mins at the gun shop or FFL holder IS much easier and cheaper.
        Bigger picture though, agree with you and most everyone here that UBC would be useless since criminals wouldn’t subject themselves to that to get a firearm. So why not throw anti-gunners that rubber bone and put that to rest. They all feel warm and fuzzy that they “did something” and get off our backs. Better yet, as part of “common sense” gun laws, give them a worthless UBC if they’ll get rid of NFA tax stamp & paperwork for suppressors and SBRs.
        The tired argument that UBC leads to “registration” and eventual gun confiscation is just utter nonsense. I sure don’t know anyone that would comply with any gov’t confiscation program for as long as they are alive.Besides, WHO exactly would be doing the confiscating? Sorry but this unfounded “fear” is akin to sailors worrying about sailing off the edge of a flat earth.
        You are right on both counts big picture-wise, UBC IS pointless (except in the fairytale word of liberals) and it’s definitely against the interests of those trying to buy a gun illegally.

        • “They all feel warm and fuzzy that they “did something” and get off our backs.”

          But that’s not how it works. They will NEVER “get off our backs”. Did they stop pushing for more gun control after we let them have the NFA? Did they stop after the GCA in 1968? Did they stop after the Brady bill? Did they stop after the Clinton AWB? Hell, the SAFE Act in New York is only a couple years old, and Cuomo is already calling for stricter gun laws. None of the thousands of gun control laws currently on the books has ever gotten the anti-rights crowd to leave us alone for even a second. Why would this one be different?

          Giving them a “rubber bone” only encourages them to push harder. There can be no reasonable compromise when the other side doesn’t negotiate in good faith.

        • One other thing to think about: it’s not a question of whether they can confiscate anyone’s guns. It’s a question of whether they think they can. If we embolden them enough to think they can get away with it, they may try. And down that road is, I fear, a civil war. They won’t succeed in confiscating the guns, but the price of the attempt may be higher than any of us want to pay.

  17. Great response, very well said. One item to add: laws which cannot be widely enforced with consistency are worse than useless. They degrade respect for the rule of law overall, which is fundamental to a functional society. It occurs to me that law enforcement would likely be seen in a better light if it was not tasked with enforcing so many flawed laws.

  18. Ditto said: “Here’s a question … what other fundamental right do we make people undergo a background check before exercising it? …. The answer is “what is none?” We don’t make anyone undergo a check to make sure their rights to free speech, religion, assembly, press, travel, to be safe in their homes, has not been taken away.”

    And yet, we (meaning “we in America”) do have legally accepted limitations on all of those other rights you mention. And while not ‘background checks’ per se, they have been in effect for decades if not over one hundred years.

    For example, in every Con Law class in America the ‘can’t yell “Fire” in a crowded theater when there is no fire’ example is taught as what is not covered by the 1st Amendment’s freedom of speech right. This idea was explicitly upheld by the Supreme Court as recently as 1969’s Brandenburg v. Ohio, which limited the scope of speech that could be banned by government to that which could be provably intended to incite actions which only had a purpose to put the public in danger.

    Freedom of religion has limits in this country as well. Ask any mormon who wants to have more than one wife. Ask any fundamentalist of any stripe wants to keep even one spouse locked in the house involuntarily, or marry their own children, or deny those children needed medical care. Ask any animist who wants to sacrifice a live animal in their back yard. These all may seem extreme examples, but courts have ruled on every one in this country, and found the need for restrictions on such religious activity. Not to mention, if you want to be free of taxation as a religious entity in the US, you have to register as one and thus make yourself known to the government.

    Freedom of assembly is another right that has limits. To protest pretty much anywhere outside of government/public property you have to have a permit (and usually even on government/public property), or permission from the property owner, in order to not be hassled by the police. If you tried to stage a protest in your local mall without such permission, legal precedent has held that the owners of the mall can have you arrested for trespassing, no matter what your constitutional rights to assembly and free speech are. And, permit or not, if you’re assembly is deemed to be ‘disruptive’ (insert your own definition as to what that means, as that’s what the government does, but the usual examples seen are people chaining themselves to things so they can’t be moved, or busting windows, or purposely impeding traffic), your assembly is over and protestors can be/are arrested.

    Restrictions on freedom of the press? That’s been eroded greatly since the 9/11 attacks. Both Bush and especially Obama have, through federal laws and all levels of federal courts, gone after reporters and their sources who violate government security classifications, with some success, even when the story in question clearly demonstrates an interest in the public’s right to know. And I should probably also mention press pools in war zones – a development of the 1st Gulf War that has endured to the present – where reporters are restricted to seeing what the military wants them to see, at risk of being frozen out from future interaction with the military or expulsion from the war zone by the military. Why? Because freedom of the press during the Vietnam police action reported things that made the military look bad, and ultimately shortened the duration of our military involvement there to ‘only’ about 10 years.

    Restrictions on freedom to travel? That’s clearly been in place ever since mandatory driver’s licensing in all 50 states has been in effect! If that’s not a background check by another name, than what is? Mandatory car inspections? A restriction, since I can’t drive anything I want on the roadways. Mandatory purchasing of insurance for vehicles? An economic restriction on my ability to travel, as are any taxes, fees, and tolls. That’s all just within the continental US – for decades going to Cuba, Vietnam (after the loss), the USSR, the PRC, any nation in the Warsaw Pact … all denied or heavily restricted to citizens of the United States. How about the full on body scanners of today? Or the requirement to have an ID of some sort just to get on a plane? All restrictions, of a sort that wouldn’t have been acceptable just 15 short years ago.

    The last freedom that Ditto mentions – to be safe in one’s home – I assume refers primarily to the 4th Amendment (freedom from search and seizures without a warrant, and to know your accuser), though Ditto may also be referring to defending against home invasion with deadly force if need be. Anyone who reads this blog knows that you can expect all sorts of exceptions to the Castle Doctrine to spring up after an event like the latter, if you have a prosecutor of a particular authoritarian mindset, so I’ll leave that aside. The one we should all be concerned about – liberals and conservatives alike – is the undermining of the 4th Amendment we’ve all endured, again, since 9/11. There is no such thing as tinfoil as an optional fashion accessory for headwear – we know the government is listening/watching/recording everything we do electronically, at home or not. Being secure in our person’s or effects is not respected. Knowing who wants to know is not being respected, as laws saying Habeus Corpus rights can be suspended are in effect. Secret courts? Check. Your or my ability to challenge said activity in a non-secret court being limited due to not knowing if we have ‘standing’? Check. Our 4th Amendment rights have been restricted as never before, and given how many liberals accept it because Obama says he’s a good guy and ‘Terrorism!’, and conservatives accept it because (insert name of their favorite guy/gal here) says the same and ‘Terrorism!’, the restrictions on those rights may NEVER be rolled back.

    My point? Government restricts rights ALL THE DAMN TIME. Sometimes for very good reasons, that further our health and welfare as a society. Sometimes for their own nefarious ends. Sometimes because we all just let them.

    How and where the line gets drawn is part of the political process that our Founding Fathers fought for and bequeathed to us. The Constitution and Declaration are the lights, the Organizing Principal, we should be moving toward. But lets not fool ourselves into thinking they are, or ever were intended to be, 100% complete instruction manuals. We were expected to do the hard work of reassessing things every once in a while, and then to sit down with others who may not see things as we do and figure out how to draw the line.

    As it all pertains to the 2nd Amendment, I think generally we pro-gun people have it right. Any additional restrictions on law abiding gun owners have to be shown to address a real problem, otherwise they are restrictions that serve some other agenda (fear of guns, control of the population, what have you). But that doesn’t mean we, as gun owners, have to be so doctrinaire as to ignore the logic behind ‘crazy people should not have guns’, ‘people taking care of crazy people should not expose them to guns’, ‘people who are documented crazy and/or dangerous criminals should be weeded out of the general purchasing population when it comes to buying a gun’. There is no reason in Heaven or on Earth that we can’t devise a system that deals with these issues in a way that protects, and even ENHANCES, our fundamental 2nd Amendment right.

    A law passed that does deal with the above issues, as well as reaffirming the right legal ownership of firearms by law abiding people, and making firm a legal definition of the mental incapacities that can and cannot be considered to deny those rights, is but a pen stroke. And, I think, an opportunity for us. It can show our willingness to be part of that bequeathed process I mentioned that we should not be afraid of, AND show our concern for our fellow man/woman (which I know we have, but the other side doubts), while at the same time saying in a loud unambiguous voice that WE are not the problem to be regulated against, and WE are through being demonized. Insisting that any proposed restrictive legislation also deals with protections of us as well, is to me the best way to draw that line, that might wind up being drawn without us anyway if we aren’t careful.

    And insisting, against all history and evidence, that every other right is somehow not subject to that same process that the right to keep and bear arms in the midst of, is the opposite of careful. It’s wishful, magical, ‘my perfect world’ kind of thinking. And we all should have grown out of that by now.

    • I’m not the sharpest knife in the drawer…nice dissertation, the exception being, and F the 3D printer…gun ownership is two sliding pipes, one with a JB welded nail in a pipe cap, shotgun thingy, less than ten bucks at Home Depot mind you…negates all the background checks, FFL, maganize limits, fees, Bloomberg and Shannon’s crew, SAFE ACT, ATF and any other anti gun legislation one can think of.

      Within 30 minute of making my home brew bangaroo, I can hunt a cop, kill him in seconds, take his hand gun, shotgun, M16 and all his ammo. Now I mozzy to a gun free zone Shootin gallery…a mall or a church or a school or a zoo or a processing plant or campground, or a pizza joint…the run on sentence list is endless.

      The systematic disarming of citizens via legislators or culture wars lead to only one outcome, dead innocent people and blabbering idiots calling for more F-Ing background checks which does nothing to stop it. The truth, you can’t stop it. Somewhere there’s a mind twisted jackass itchin for a one sided gunfight to which there is an army of hopeful happy do gooders repeating the mantra, enabled by a culture of democracy …let’s have a conversation, we can work it out and help you have a better day.

      As a people we’ve replace solid common sense with the veneer of dogma. I really don’t give a dam about the second admendment, in fact if left to me, I would abolish it and replace it with…every citizen has the right to lawful self defense by what ever means available. Be it a holstered brick, a sharpened screwdriver, or laughing gas. Whatever it takes to stop the threat.

      Whew, I lost it my apologies to the crew.

      • “As a people we’ve replace solid common sense with the veneer of dogma. I really don’t give a dam about the second admendment, in fact if left to me, I would abolish it and replace it with…every citizen has the right to lawful self defense by what ever means available. Be it a holstered brick, a sharpened screwdriver, or laughing gas. Whatever it takes to stop the threat.”

        I agree with what you say about dogma replacing common sense (or just basic logical thinking), but I think that’s true for both pro-gun and anti-gun people.

        For example, your very next statement goes beyond what we’re talking about here – a constitutional political process based on enumerated rights and responsibilities – to ‘I don’t give a damn about the 2A – abolish it and replace with every citizen has the right to lawful self defense by what ever means available’. That’s kind of dogmatic, in the sense that part of the definition of dogma is the tendency to lay down principles without consideration of the opinions of others. ‘Others’ in this case are the people in the country who are so terrified of guns and violence that even the 2A is ‘too much’.

        Unless we want to live in Hobbe’s State of Nature (btw – I have been to countries where this is the norm, and trust me, we don’t want it. Defending yourself with bricks is about all an individual is left with once the militias, gangs, & ‘liberation armies’ enter into the picture with whatever remnant of government is left), the 2nd Amendment is a pretty good deal. And with the Bill of Rights comes the responsibly to use your talents and drive and judgement to start negotiating and convincing and – yes – conceding.

        That’s the process. It’s the only way to achieve the “more perfect union”. The last time we had a substantial number of us turn their back on it, we had a Civil War. Process or bloodshed – take your pick. But be prepared to loose some loved ones, or be somebody’s ‘war bitch’, or some other horrible outcome if you choose the latter. Cause that’s what a State of Nature ultimately brings.

    • Commenter,

      Yes, speech intended to cause the injury/death of people can correctly land us in prison regardless of the First Amendment. So, does that mean government can require universal background checks before all forms of speech? Does that mean that government can require EVERYONE put on a muzzle before entering a crowded theater? After all, anyone who exercises their right to free speech could use it to harm someone. The obvious answer is “NO!”.

      The same applies to firearms. Our Second Amendment right to keep and bear arms is NOT a license to offensively harm people any more so than our First Amendment right to free speech is a license to offensively harm people. Just as government should prosecute anyone who offensively harms others with their speech, government should prosecute anyone who offensively harms other with their firearms. And just as government prosecutes free speech abusers after they commit a crime, government should prosecute keep-and-bear-arms abusers after they commit a crime. After, not before.

      • Understand that I wasn’t drawing one-to-one comparisons, just showing that government has various restrictions on all the rights enumerated in the Constitution, & the type of restriction depends on how practical it is to implement.

        So you are correct – government does not directly license speech or do background checks on citizens before they speak. However it does require permits as to where/when you speak in public, it does use the state’s police power to remove you if it doesn’t like ‘how’ you’re speaking, it does punish you after the fact if your speech crosses the ‘yelling fire in a crowded theater’ threshold. How the government implements these regulations, or even if they are allowed to, is part of our responsibility as citizens to work out via the political process. And that responsibility is as much a part of the Constitution as the enumerated Sections, Clauses, and Amendments are.

        In other words, while in an ideal world the Sections, Clauses, and Amendments would be inviolate and 100% fully understood and accepted by all, the Founding Fathers knew that would not likely be the case; that the citizens might want the government to do some things that might tread close to an enumerated right for some (mistaken or not) idea of public good, the government might overreach in those efforts, the people debating what should be done might be diametrically opposed in their views of what constitutes reasonable government action regarding said enumerated right, or disagree whether said right should even exist anymore at all … etc. And it was the overall political process for devising laws (including even the addition/subtraction of Amendments), and adjudicating them (via ultimately the Supreme Court) that was to determine how all the above played out. It’s NOT a cheat to have to debate these things, for any right – it’s simply part of the government they bequeathed to us.

        As to your second point, that “… just as government prosecutes free speech abusers after they commit a crime, government should prosecute keep-and-bear-arms abusers after they commit a crime. After, not before…” I would only say that may not be a practical approach politically. Society certainly SEEMS to have decided that a pure ‘after & not before’ approach is not what they want in this area. The polls continually show that people support the 2nd Amendment broadly speaking, but that they also support not allowing ‘questionable characters’ (of the type I listed in the first post, primarily) from obtaining firearms in the first place. Given what happened to Chris Kyle, just as an example, I don’t think that’s an unreasonable position, and one that even pro-gun people can at least understand, but it is also certainly one that has to be vigorously guarded against government overreach.

        • Commenter,

          Your comparisons between our right to keep and bear arms and speech are invalid.

          If someone is standing in the middle of the road with a large sign, police would remove that person because they are impeding traffic on the road. Note that police would intervene because the person who is exercising their right to free speech is interfering with other people’s rights such as their right to travel. Police will (or at least should) not interfere with a person who is wearing a shirt with a message or stands between the sidewalk and the road. Applying this to my right to keep and bear arms, I am not interfering with anyone’s rights if I happen to possess a firearm as I walk down the sidewalk, travel on the roads, or patronize a government building. Therefore, government has no legitimate authority to tell me that I cannot be armed in those situations.

          As for government requiring permits to exercise free speech, they have no legitimate authority to do that, either. Now, if someone wants government to temporarily shut down a public road for a demonstration, I can see requiring a permit for that simply because of the massive disruption to travelers who have just as much right to use the public roads as a group demonstrating for some cause. A permit in advance of such a demonstration would enable government to facilitate both the demonstration and travel. (e.g. government could post detour signs and notify the public to seek alternate routes in advance).

          And even in the case where someone wants a permit to demonstrate on a public road, do they have to pass a background check before government will issue a permit? Does every single demonstrator at the event have to pass a background check before they can attend? Does every single demonstrator have to fill out the equivalent of an ATF form 4473 before they can attend? After all, the demonstration could be a call for Islam as the national religion in the United States and cause rioting — including deaths from the rioting.

    • Commentor, I continually run into the problem that you can say all the actually beneficial and even agreed-on stuff you want, and the antis won’t even see it — all they see is what they’re programmed to see. I held forth on a forum giving a thorough explanation of a national mental health system that would reduce homelessness, reduce the incarceration of the mentally ill, save police innumerable manpower hours, and would have kept over half of the mass shooters in the last twenty years from obtaining guns so easily, and two posts later began the refrain of “You just want more guns! You have no constructive proposals!” — and quite a number actually quoted that post of mine!

      The bright spot was that two people, a fence-sitter and a Fudd, came over to my position. But the antis won’t even see any position they’re not programmed to.

      • You describe a phenomenon as old as humanity itself 😉 And one that I too have seen with anti-gun people. I have to point out though that I see the same type of ‘programming’ with pro-gun people too: ‘You just want to take away all the guns! You say you’re pro-gun, but you’re just a Fudd!’ The left has no monopoly on entrenched ideas and hard-headedness.

        Look, as a baseline psychological thing, we all are the heroes of our own personal movie. And The Hero isn’t often wrong, and certainly doesn’t do things for the ‘wrong’ reasons. So it’s no wonder that closely held ideas & beliefs aren’t easily changed by an individual. That can be beneficial, in that any major changes (at a personal level on up) SHOULD have high hurdles to clear. Otherwise, as people and as a society, we’d be slewing back and forth between productive and unproductive behavior constantly. As chaotic as we think the world is today, imagine how much more it would be without people – on both sides of the political isle – digging their heels in against change for the sake of change.

        On the other hand, when change really is needed, or it’s at hand and needs to be dealt with & guided in a productive way, it’s a tough row to hoe to get people to approach that in a way that they can separate from their own ego’s need to maintain their position as ‘hero of their movie’. The political process we’ve inherited can’t solve that problem – it can only try to mediate it. As you demonstrated though, small victories can be won (your two ‘converts’ are the proof), and that’s simply one version of the process we should all be involved in.

        • LOL

          You should read some of my stories: the “hero” generally doesn’t want to be one, rarely is sure he’s doing the right thing, often muddles through due to luck, not uncommonly has to be called to account by his friends for screwing up (or if he’s lucky, they head him off before he screws up)….

          As the “hero of my own personal movie”, I hardly ever believe I’m not often wrong; I make my best guess and best plans from there. Frak, with an anxiety disorder compounded by the issues I’m facing right now, I’m not certain I should even have guns in the house, but it’s my best guess that proper use is so engrained that I won’t misuse one, so there they stay in hopes that if a crisis situation occurs I won’t be paralyzed by anxiety or won’t just keep shooting until I run out of bullets.

          Except for those who like self-agonizing, a movie with me as hero would be dreadfully melancholy.

        • Commenter,

          I have to point out though that I see the same type of ‘programming’ with pro-gun people too: ‘You just want to take away all the guns! You say you’re pro-gun, but you’re just a Fudd!’ The left has no monopoly on entrenched ideas and hard-headedness.

          The frequent response “You just want to take away all the guns!” is actually based in fact, not “entrenched ideas” or “hard-headedness”.

          But don’t take my word for it. Go watch Senator Diane Feinstein’s “turn ’em all in Mr. and Mrs. America” interview. Go watch Hillary Clinton’s recent comment that she would entertain Australia’s model of government forcing everyone to sell their firearms to government. Look up the history of the Brady group whose public mission was to ban ALL handguns. Look at all the gun grabbers who want us to be just like the United Kingdom.

          You are seriously misinformed if you think gun-grabbers want any sort of middle ground. They have publicly tried to eliminate all handguns. They banned the sale of new military style semi-automatic rifles in the 1990s. They want to eliminate “high-powered” (they cannot even describe what that means) guns. Anyone with open eyes can see the progression. Please open your eyes.

  19. There are two things wrong with UBCs. First, they aren’t private. If I sold a firearm, I might want to run a check on the buyer (if I don’t really know him), but I can’t. As a non-FFL, I’m locked out of the NICS system, even though the system can handle private calls and, in fact, was originally designed with them in mind.

    Second, the 4473. This is the pathway to registration and confiscation.

  20. As I posted in the other article.
    As moral, ethical and responsible gun owners we have an obligation to be reasonably sure we do not sell guns to criminals.
    The only way to accomplish this is with a properly implemented background check system.

    If you insist on not being legally obligated (forced) to go through a background check, the alternative is this,…
    Remove the “requirement” for a background check and make the seller legally liable for any and all actions taken with the firearm if it was sold without a background check.

    • Not just “no.” Hell no.

      The government has a responsibility to keep criminals away from free society. I am not responsible, and refuse to assume liability, for the actions of someone over whom I have no control.

      May your chains rest lightly upon you.

    • Oh, really? Then why can’t I run a background check myself? Why do I need to federalize the sale to do so? I’m perfectly capable of picking up a telephone and calling NICS — but the feds won’t let me.

      BTW, in MA, I can perform a background check that’s every bit the equal of NICS. In fact, the state will issue a certificate to the buyer confirming that the seller is properly licensed, and that the license is in full force and effect. If MA can do that, why can’t the feds?

      You are being conned, boy. Gulled. Hornswoggled. Scammed. And you fell for it.

    • So if you sell a car to someone who drives it drunk and runs over a toddler, are you to be held responsible for the vehicular manslaughter charge? You didn’t do a background check before selling the car, did you?

  21. Background checks only makes sense if there is universal gun registration. Which is the first step towards confiscation.

    • If we observe what has been happening to law in WA & OR States, it becomes clear a UBC creates a registration scheme. Fact.

  22. Read Chip’s comments often, I can tell he’s a thinker/problem solver. I believe he speaks for us all. Again thank-you Chip.

  23. I usually ask the UBC fans if they think that changing my behavior will change the behavior of criminals.

    That cues a bunch of straw man or ad-hominem replies. Occasionally they think, but usually not.

  24. Chip-along with Dyspeptic and a few others would be great as regular contributors. Heck Chip uses his REAL name already(something I will never do)…anywho a concise,precise and eloquent discourse Chip…

  25. So is the answer, absolutely no background checks? That’s what comes from the arguments that are being posted. It doesn’t seem difficult at all to purchase weapons now with the current system, are the posters here suggesting removing it? I bet the numbers showing only criminals bypass background checks will change if there are none, only because there will be no fear of being caught doing so. Even the right to free speech has some limitations, so we need to ensure that the process of purchasing and obtaining gun ownership doesn’t become onerous.

    • Hi Jeff, yes you are correct that there are repercussions to speech, but these things only occur AFTER the fact. You cannot RESTRICT speech, but there is speech that is not protected.
      Another way to look at background checks is this. If you personally had a gun would you shoot someone for no reason? Of course not. So having a background check would possibly stop you from owning a gun, but criminals don’t get them. Background checks only hinder good people.

    • So is the answer, absolutely no background checks? That’s what comes from the arguments that are being posted. It doesn’t seem difficult at all to purchase weapons now with the current system, are the posters here suggesting removing it?

      Background checks have no impact on the firearm-acquisition behavior of criminals. Before Brady background checks, criminals purchased firearms through commercial FFLs 10-15% of the time. After Brady background checks, criminals purchase firearms through commercial FFLs 10-15% of the time.

      So, why keep them?

  26. Universal background checks, closing “gun show loopholes,” common sense regulation have one thing in common. They are all Trojan Horses for a national database. Tell the public that we merely want to keep firearms out of the hands of the insane (criminals, etc) but backdoor a new federal initiative to map exactly what is where.

    On occasion, prominent Democrats have admitted as much.

    The naiveté of the “scientist” working on the “new computer” was pretty funny. If in fact he was a scientist working on a new computer. He could have been a troll from Think Progress, Media Matters, or the closet where HRC used to keep her server.

  27. Most adults who can legally buy a firearm would have some sort of I.D a social security number, drivers licence, or passport. A server would host a black list of people who are legally banned from owning a firearm and include the social security, passport and driver licence numbers.

    Using something like TOR

    the client software connects to the server so its hard to pinpoint the exact checkers location.
    The numbers are checked aganst the banned list. If the numbers given do not match the banned list. It gets a green light for the sale. At the same time the client sends out 9 other (10 for not filled out categorize) randomley generated number / letter combinations. For each category (30 in total).

    The client receive a Yes (automatic if not found on the banned list) and a NO if it is found. Next to each number sent. But because its answering 30 queries the server never knows the exact number being checked from the fake ones, the seller would only care if the one he is interested in gets a NO.

    the onion router stops or rather makes it harder for the exact location to be found and the fake numbers help mask the real ones. and can be masked further by setting some bridges in the network it up to send requests were all 30 queries are fake quires

    The amount of data being sent masks the legitimate query, and even if the random numbers do match a social security number, drivers licence, or passport. And if the government secretly records them Even better, the amount of false positives would make the data worthless.

    thats about the only way i think a system could work. i am not debating the ethical reasons more the technical way it could work

  28. You can’t force a criminal to undergo a UBC for a firearms sale because of protections in the 5th Amendment. This has been held by SCOTUS.

    If a person who would fail a background check would attempt to sell a firearm, they’re a prohibited person in possession, which is a crime. Therefore, requiring said person to perform a UBC is requiring them to self incriminate, a clear violation of the 5A.

    • Interesting: as the law stands, doing a BGC for purchasing a gun can’t be used against you, but if you’re already in possession and trying to sell?

  29. The worst part is that you USUALLY have to identify the firearm being transferred, and you ALWAYS have to identify both parties … even if the dealer that you have to go through doesn’t identify the seller.

    Which means that at least one of the parties has been identified as a gun owner.

    And that’s nobody’s business, I don’t care if the law says that the feds can’t retain records.

    What are the STATE laws when they require a background check on a private sale?

  30. Anyone watch the show Adam Ruins Everything? More security theatre. Actions designed not to actually protect but merely to provide the illusion of security.

  31. The real problem with UBC is that it requires total gun registration, otherwise the government can not track private transfers. If UBC is passed, you will suddenly hear cries of “loophole”, because without gun registration, UBC will be operating on the honor system.

  32. I want a call in or online database that anyone can check to see if a person is prohibited from buying a firearm and also where we can check if a firearm is stolen before buying.
    I have bought a couple firearms from individuals and sold a couple and always wonder if either they are legit or if the firearm may or may not be stolen- the last thing I want is to buy a gun and end up either loosing it or being charged with having stolen property.


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