BACKGROUND CHECKS?

Many of those clamoring for “government to just do something” have added their voices to the chorus of those demanding expanded “background checks” for sales of arms and ammo.  They obviously must struggle each election time with the choice of voting for the incumbent(s) (as most seem to do) vs. punishing them for NOT instituting “background checks.”  

The few advocates thereof with whom I have spoken do not, however, have any SPECIFIC suggestions, though some have argued that the federal “no-fly” list should just be incorporated for the sales of arms and ammo.  A very serious problem with the federal “no-fly” list is that one does not learn of being on the list until prohibited at the gate from boarding a plane, LONG AFTER having purchased the ticket!  And, there is absolutely no “due process” honored that allows one to challenge such a listing for arguably wrongful inclusion! 

The “gun control liberals,” nevertheless, don’t care much for such “due process”  concerns.  Their airy dismissals are basically an invocation of the “tough shit” rule.  Most seem quite aggressive in invoking “due process” for disadvantaged ethnic minorities, but if “due process” interferes with their own “bright ideas,” they are vehemently against it.  There is also very little concern expressed for those who might be unfairly inconvenienced by such rules.  Their fearsome belief is that the “saving of just one life” more than offsets any such “minor” misapplications of law.

There have been many innocent people—including too many children, and cops—slaughtered in the past 20 years by deranged malcontents wielding high-capacity firearms.  The call for more “gun control” is really a call for more control of those deranged malcontents who somehow manage to get their hands on those firearms and plenty of ammo.  There seems to be a belief among many that the cosmetic resemblance of certain firearms to military weapons (so-called “assault weapons”) promotes the deranged behaviors that end in tragedy, though there is no empirical evidence to that effect.  

Gun-rights advocates frequently invoke their “Second Amendment rights” whenever further regulation of gun commerce (buying or selling guns) is aired.  However, my interpretation of the Second Amendment is that it only protects the possession (“keeping”) and carrying (“bearing”) of arms already owned.   Historically, to join a “well regulated militia,” one had to already own a firearm since militias did not furnish them.  Congress does have the specific and unlimited constitutional power to regulate all interstate commerce under Article I, Section 8, which I think includes commerce in arms, and there is no exception suggested in the Second Amendment!  That provision says nothing about a “right” to buy or sell arms free of government control.  I think both sides in the debate have ignored that distinction and wind up talking past each other.  I believe that Congress may lawfully regulate or even ban any and all arms sales.  Whether or not a specific proposal makes sense is another matter, but I doubt that can be resolved by constitutional examination.

Most privately-owned guns are “semi-automatic,” which require a separate trigger pull for each round of ammo shot.  Federal law (18 USC §922(b)(4)) already bans the sale and possession of fully automatic “machine guns” without special permits.  However, it was recently reported that a former police chief was apprehended selling machine guns INTENDED only for police use in black-market sales to individuals.

Under federal law, it is already illegal for ANY person to sell OR DISPOSE OF firearms to any felon, to anyone under indictment, to any fugitive, to anyone adjudicated a “mental defective” or having been committed to a mental institution, to anyone addicted to a controlled substance, or even a user,  to any “unlawful” aliens, to anyone subjected to a dishonorable discharge, to anyone who has renounced a US citizenship, to anyone under a court order to refrain from bothering any child or “intimate partner,” to anyone convicted of “domestic abuse,” and it’s unlawful for any of the foregoing to RECEIVE such arms.  It is unlawful to  possess, transmit or receive any arms that are (re)configured to elude security detection.  Federally licensed dealers must also ascertain the bona fides of gun purchasers, too.  In other words, there is ALREADY a lot of “gun control” provided by federal law that has failed to prevent the horrible murders that have occurred.  What can more federal law do?

In addition, there are state and local “red-flag” laws that allow police to intervene and confiscate weapons whenever someone is behaving in such a way as to raise serious safety questions.  Recently, however, the fellow who shot up a FedEx warehouse where he used to work was not thus interdicted, despite family pleas, so he was able to acquire the weapons used in that murderous horror. 

President Biden recently proposed some measures that may accomplish something: (1) he wants to restrict or ban the modification of pistols with rifle stocks; (2) he wants to prevent the trade in so-called “ghost” weapons that are assembled from kits and have no serial numbers; and (3) he is promoting the expansion (under state law) of petitions by family members and law enforcement to remove weapons from the reach of those who are shown liable to hurt themselves or others, the so-called “red flag” laws referenced above.  “Assault weapons” are, however, another matter.

How, exactly, can “assault weapons” be defined with statutory precision?  That would be necessary if one was to be criminally prosecuted for a violation, but many “gun control” types don’t seem to care.  Many want them specifically banned as such because no reasonable person could possibly “need” such a firearm, and “everybody already knows” what they look like.  I agree that what I think of as an “assault weapon” does look “bad,” but what is an “assault weapon” LEGALLY?  Most seem to look like military guns, but relying on what “everybody already knows” is not going to suffice for criminal prosecution.  Personally, I don’t think “assault weapon” can be precisely described for statutory purposes, because its description relies on subjective cosmetics.

I think, instead, the advocates of “gun control” should approach the problems analytically and not emotionally.  I think the issues should be addressed incrementally instead of trying to write some sort of “comprehensive” law that will surely attract opponents from many different angles.  I would start with a federal requirement that limits gun purchases to one gun per month.  I think that is politically possible and certainly reasonable.

Next, I would consider outlawing the sale or purchase of any large-capacity ammo magazine or clip.  HOWEVER, that would surely drive a lot of commerce to a most profitable “black market” which is, by its very definition, UNREGULATED.  So, in order to offset the likelihood of black-market commerce in large-capacity magazines and clips I would, AT THE SAME TIME, activate a VERY generous nationwide “bounty” or buy-back on such large-capacity magazines and clips in order to purchase and destroy same and get them out of circulation.  To be sure, such a bounty would not succeed in removing all such magazines and clips from private hands, but it would likely get many of them IF the money is big enough.  But the prohibition would not work without the bounty, nor vice-versa.  It might even work better if a SMALL-capacity magazine were also offered in trade with the bounty!

In Virginia, one may be declared a “Habitual Offender” for violating three of the major highway offenses, like drunk driving, reckless driving, hit-and-run, or ten lesser offenses in ten years, and such a driver’s license is then revoked for at least five years (or more).  If that person is caught driving during such revocation, that is considered a FELONY under Virginia law.  Many people have been convicted of possession of marijuana or other drugs or distribution of small amounts thereof as FELONIES.  WHY should any of them be prohibited from purchasing any weapon, but one who has been convicted of misdemeanor animal abuse is not so prohibited?  

Why should someone sent to a mental hospital for nonviolent but persistent alcohol intoxication be banned from possessing firearms?  As the former Special Justice for Orange County, I sent a lot of habitual drunks to Western State Hospital because that was the only place to send them!  Yet, almost none of them would have been considered a “community threat.”  They were just a threat to their own well-being.  What about banning single men 25 or older who have never had sex?  (Try getting THAT law passed!)  The laws being vehemently proposed or already on the books seem to have little or nothing to do with addressing the root causes of the deplorable murders of innocent people!  It seems they are aimed at just making the proponents “feel better.”

In my view, “feeling better” doesn’t cut it.  Real “gun control” needs to make sense.  There needs to be an understanding of the difference between “causation” and “coincidence.”  Advocates of gun control need to show a clear causal nexus between the horrors that have happened and what is being proposed.  Whenever I hear about such incidents on NPR, no one ever seems to ask or learn what type of weapon(s) is/are involved, which I think is highly relevant.  I understand that most of the “perps” of those horrible incidents of gun violence had no prior criminal record, so nothing may show up in a “background check.”  They were not using fully automatic weapons, so what they were using was readily available.  Many did use large-capacity magazines and had bought several weapons in close sequence.  All of the weapons used in those horrible incidents were apparently acquired legally.

Yet the meaningless proposals and violence will continue.