This is the first in what’s intended to be a series of posts on the futility of gun control in the United States. The reasons I’ll be exploring are largely technological, with a bit of social commentary thrown in. These posts should be weekly. Prepare to be amazed at the absurdity of what will be exposed.
Please remember that I Am Not A Lawyer. I’m writing as a layperson, albeit one who reads voraciously. As someone who enjoys shooting sports and does not own an “assault weapon” (*spits*), I still find much of the firearm law in our country to be ridiculous – probably because it’s written by people who, by and large, don’t know anything about guns.
The subject of gun control has been bothering me for quite awhile, in part because of the vast misrepresentation of basic facts by mass media.
This isn’t a surprise, really – I’ve long since concluded that the media isn’t capable of presenting unvarnished reality. (That goes for pretty much every media channel in existence.) Why? I’ve been involved in activities and events that were later reported on by newspapers, and found myself saying, “Huh? Is that what they got out of it?” Heck, even reading reporting on me publishing my own books made me wince at inaccuracies stemming from interview questions asked of me.
I don’t attribute this misreporting to malice. Rather, I think it’s a function of human nature. Anyone examining a situation brings his own biases and assumptions, which can radically affect how he views a situation. For media, it’s even worse, because they report on huge varieties of topics, and lack comprehensive understanding if most (if not all) of them. Ignorance + biases + assumptions = slant, even if they have no intention of doing so.
(Sometime this week, I’m hoping to write a post on the popular Internet meme of “Fox News sued in the Supreme Court for the right to lie to its viewers.” It’s so wildly incorrect it makes my head spin, but I understand how people can buy into it because that’s how it was reported at the time by the local papers.)
A big focus of this series is going to focus on the technological advancements that have made gun control ineffective, but I want to start with the infamous “gun show loophole.”
Key terminology to know here: FFL, or Federal Firearms License. It’s the certificate from the federal government indicating that you, as the holder, are permitted to commercially manufacture arms or ammunition, or engage commercially in the interstate or intrastate sale of firearms.
Currently, federal law prohibits the sale of weapons across state lines without an FFL.
For example, if you’re a private citizen, Jake Buck, living in Fargo, ND, you cannot sell your old 30-06 rifle to your best friend, John Doe, residing across the state line in Moorhead, MN, without using an FFL as a transfer. However, you could sell it to his sister, Jane Doe, who resides in Grand Forks, ND, without involving an FFL, because it didn’t cross state lines.
How does a transfer with an FFL work? In the case of a face-to-face transfer, the FFL records the pertinent information on the firearm and calls into NICS for a background check. (NICS is the National Instant Background Check System, and is not available for private use for gun sales – only FFLs.) Assuming it comes back immediately clean, he transfers the firearm and pockets a fee for himself charged (usually) to the buyer. Finally, he files the filled-out-form in his private records, which he has to retain forever – and should he go out of business, his records must be sent to BATF. Here in North Dakota, that fee seems to range from $20-$30.
If the check comes back with a denied, there is an appeals process. I have been witness to this secondhand (not involved in either end of the transfer) – in that case, after two weeks of appeals, his transfer was approved.
So, let’s back up a bit and talk about the “gun show loophole.”
It’s important to note that there is no “gun show loophole,” just as there is no “Internet sales loophole.” Both of these refer to private sales.
Under federal law, any person can transfer a firearm to another person without a background check or FFL involvement if the firearm does not cross state lines. Hence, in our example above, Jack Buck can sell his rifle to Jane Doe without a problem.
The “gun show loophole” and the “Internet sales loophole”, therefore, are about private sellers working with a buyer to sell a firearm.
However, an FFL must run background checks and file paperwork for all sales, regardless of interstate or intrastate transfers. A large majority of the sellers at gun shows are FFLs, as it’s a great way to get product in front of buyers without trying to lure them to a shop. All these FFL transfers at a gun show proceed through normal channels, including background checks and paperwork.
So, the “loophole” refers to people who aren’t in the business of buying and selling firearms for a living.
I can’t find my reference right now, but it’s also illegal to sell a firearm to someone you believe cannot legally acquire one. (E.g. if you’re selling a gun to a private individual, and he mentions he just got out of prison, you have a legal responsibility to end the transaction. I believe – as I said, I can’t find a reference at the moment.)
FFLs also cannot complete a transaction legally if they believe it’s a “straw purchase” – a buyer who is purchasing the gun specifically to sell to someone else. As far as the ATF is considered, that is perjury on the form 4473, since it specifically asks who the firearm is for.
Various states have attempted to close this “loophole” with more or less success, depending on the locale. If in doubt, check your state laws – there’s no uniformity.
In decades past, while gun-grabbers weren’t happy about private sales, they were easier to ignore; print media for classified ads limited the reach of transactions. Then the wild world of the Internet came along and made all sorts of connections possible that previously weren’t. Facebook is the most obvious example, with an unknown number of groups available for people to buy, sell, and trade guns. Dedicated sites like GunBroker.com and ArmsList.com popped up and prospered, specifically dedicated to brokering transactions. And suddenly the world got a lot smaller and a lot easier to find any particular gun.
So what are “universal background checks”? In short, it means that even private sales would need to involve an FFL. You want to sell your old Glock 9mm to your brother? Go visit a dealer, pay the fees, and get the background check.
Final food for thought:
Are universal background checks on private transfers constitutional? This is not a question I’ve ever seen posed (which is interesting, given the number of legal sites I read regularly), and I don’t know of any court cases on the subject, but it may be worth considering:
Let’s start with noting that our rights to keep and bear arms are guaranteed by the 2nd Amendment. Now remember that, under any background check scheme for private sellers, we would have to pay an FFL to run a background check and complete the appropriate paperwork for the federal government.
By contrast, compare the right to vote. The 14th Amendment first established a right to vote, the 15th established race could not be a factor, the 19th said the same for sex, the 24th nixed poll taxes, and the 26th lowered the voting age to 18. Note the big one? No poll taxes! You can’t have to pay to vote.
But Casey, you protest, the 24th Amendment specifically nixed poll taxes! It’s not comparable!
Ah yes, but the 24th Amendment only applies to federal elections – not state elections. In fact, the Supreme Court ruled poll taxes were unconstitutional under the 14th Amendment’s Equal Protection clause! (Which does raise the question of whether the 14th Amendment was actually necessary; the Supreme Court appears to do whatever the hell it wants anyway.)
Under this logic, laws against voter ID have been challenged repeatedly in federal court. In broad strokes, unless voter ID was available fairly easily and at no cost to an interested voter, such laws are struck down; if the state government bends over backward to make it available, it’s constitutional and not considered a poll tax.
That seems pretty weak, you might say. I mean, I see your point, but it seems a stretch.
That’s okay, because I’ve got a second example.
Under the 1st Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[…]”. Philosophically speaking, taxation has been recognized as the power to destroy; until the 1950s, churches were tax-exempt, but in the 50s their status was codified in IRS code. (This is based on a loose and fast reading of history; finding something unbiased on the subject is difficult at best.)
In general, the Supreme Court has used a three-part determination:
1.) Does the statute have a secular purpose?
2.) Does its principle effect inhibit or advance religion?
3.) Does it foster excessive government entanglement with religion?
In general, most lawmakers steer wide of taxing churches for reasons 2 and 3. (Plus, the bad PR.)
Would universal background checks to constitutional? Are background checks on any private transfers constitutional? After all, it involved the inconvenience of travel, plus paying private fees, all to exercise a constitutional right!
As I’ll note in all of these posts, ‘I Am Not A Lawyer.” (IANAL for future reference.) Take this with a grain of salt. If nothing else, it’s fun food for thought.