Disclaimer: the opinions in this blog post do not necessarily reflect the opinions of the Liberal Gun Club, or the LGOA, or of any friends or enemies of any members or other persons, nor does it reflect well or badly on anyone’s Swiss chard. So it is written—so it shall be known.
Like “Marriage Equality,” are Universal Background Checks “Inevitable?”
Guns is one topic that few people are all “Meh” about. Because: “So, then two year old kids should be given loaded and cocked, fully automatic weapons to play with unsupervised?” “No!” Ah.
National background checks seem inevitable for all legal gun purchases just as nationwide marriage equality seems inevitable. “Inevitable” is Justice Scalia’s logic about marriage equality. I am rolling it over to examine national background checks, and I’ll tell you why.
The Ninth and Tenth Amendments would suggest that some of the several states legally may refuse to marry same sex couples, but that these states must recognize legally-married same sex couples from other states as legally married in their own states. The evolving jurisprudence concerning marriage equality would suggest otherwise, at least if you live in a state encompassed by the Fourth, Seventh, Ninth, or Tenth Circuit Courts of Appeal – but not the Sixth Circuit. We await word from the Supreme Court as to whether they will decide the issue, and whether prior Supreme Court decisions finding a fundamental right to marriage will apply to same-sex couples, or will federalism rule the day.
How does this relate to guns and background checks?
The Second Amendment trumps state laws—that’s the way it’s supposed to work under the Supremacy Clause. And it does, but really slowly. Take, for example, California’s infamous Mulford Act, signed in 1967 by St. Ronnie, then California’s Republican governor, which outlaws open carry of loaded weapons.
Technically, a gun owner could apply for a CCW, but since California has been a “may issue” state for some time, many coastal counties issued few, or zero permits. “May issue” Sheriffs would decide themselves whether the person provided a “good cause” behind which to issue the permit.
Few causes along California’s coast were “good” enough.
The result was a large coastal population—tens of millions—who could not “bear arms” in any meaningful way: illegal to carry openly and no reason good enough to carry concealed legally.
Then came the Peruta case.
After many lawyers make more money than God, one of two things in California must happen: either the Mulford Act will be repealed, or California will become a “shall issue” state, where permits to carry concealed weapons shall be issued on demand—unless the person fails a background check.
Lawyers, money, then guns is how that will play out, I predict.
We now pause for Finnish M39 Mosin Nagants.
The Supreme Court tells us there is a fundamental right to marriage. And there is a right to equal protection under the law.
We ask, like Judge Walker in California did, “who is harmed by marriage equality?” The Judge’s answer is “no one”–unless we define “harm” as “not passing the bigoted law I want you to pass.” Many people don’t like marriage equality, which is their right. But they may not convert their “dislikes” into law. That’s the way it’s supposed to work. Judge Walker’s findings of fact in Perry v. Schwarzenegger destroy the idea that “what bigoted folks like should be law.”
In a legal culture where “money is speech,” many legislators, judges, and public servants become rich just by listening. These good listeners decide what means “harm.” That’s why it’s taken so long, because legislators have had to “listen” quite a bit. Apparently they’ve heard enough. Justice Scalia knows that marriage equality is inevitable, even between the Ninth and Tenth Amendments.
So, we ask, “Who is harmed by national background checks?” No one, unless we define “harm” as not allowing a prohibited person to get a firearm legally. This person could buy a gun from an illegal seller, just as a same sex couple may be married by a Cracker Jacks box-prize-paper minister. The law will recognize neither the gun purchase nor the marriage as legal, just as the law would not accept legal possession of a stolen firearm or a fraudulent marriage certificate.
So, why are national background checks are inevitable, with one important exception? As we know, RKBA is a national right protected by the Second Amendment. But we also know that Congress may regulate interstate commerce. Thus Congress can require background checks for weapons the sales of which cross state lines.
The first point exposes the second point: guns made in State X and sold exclusively to citizens of that State, theoretically bypass Article I, Section 8, “the commerce clause,” which allows Congress to regulate goods and services traversing state lines. Technically, guns made in and kept in State X are immune from regulation by Congress. Technically. But not practically.
Before it’s decided, lawyers have to make more money. Is it all tickety-boo? No.
I predict it will come to pass that no state may manufacture and sell firearms within its borders exempt from Federal regulation. This means local, newly-made smokeless powder firearms will be subject to the same regulations as firearms which cross state lines.
A legitimate but unrealistic concern exists in people who oppose national background checks: “The gubbermint will use background check information to find and confiscate guns.”
I call BS for the most part. Why?
Actual, nationwide confiscation like the one imposed upon New Orleans during hurricane Katrina would awaken the sleeping giant. So: it won’t happen.
We see how confiscation on a national scale is an unrealistic fear, yet it is a fear which keeps .orgs like the NRA in business. You’ll hear it over and over again, but without the analysis that national confiscation is a non starter because there would be a rifle behind every blade of grass: a semi automatic rifle capable of accepting a detachable magazine of unlimited capacity. That’s why we won’t see confiscation on a national scale.
However, we have seen in New York state where guns of deceased persons have been confiscated. Also, several states have developed laws addressing medications taken by gun owners, such as New York’s “SAFE Act.” Washington state voters approved Initiative 594 in November 2014, which mandated background checks on most gun sales.
This is generally like California’s law but more strict in some areas. As things stand now, California has neither fallen into the sea nor has chosen full blown confiscation. The jury is still out for Washington state.
When we look at the numbers, we find it true that some guns were confiscated—some from families of deceased gun owners and some from people prescribed certain medications. We also find it true that there exists a new category of prohibited persons as regards the right to possess guns.
This is a delicate time in the history of gun law. The nation is attempting to find the sweet spot as we discuss whether “background checks” are inevitable like marriage equality. And we will see after some time passes whether we suffer large scale violations of our RKBA. Is one violation too many? “Meh?” Not hardly.
I’m glad I got mine before the panic:
Discuss on the LGC forums here!