We have become all too accustomed to the gun prohibitionists and their disregard for the truth, history and even the common meaning of words in the English language. Regarding the latter, their utterly perverted understanding of the word “people” in the text of the Second Amendment is a fine example. To them, it has a meaning in that section of the Bill of Rights that it does not have in any other historical document or dictionary known to mankind.
An even more commonly abused term in today’s policy debate is “loophole.” To them, everything that might offer a good American the ability to exercise his or her right to arms, especially in a timely manner, is considered a loophole in the law.
Reasonable, thinking English speakers understand that the word is intended to describe something that is unintentional. Merriam-Webster defines it as “an error in the way a law, rule, or contract is written that makes it possible for some people to legally avoid obeying it.” Importantly, it defines “error” as “something produced by mistake.”[A loophole] certainly does not mean a provision of the law that was intentionally incorporated in order to make the law good, reasonable or palatable to those voting on whether to enact it.
So a true loophole in the law might be some provision of the tax code that accidentally allows certain people to escape paying taxes that policymakers intended to make them pay when enacting the law. It certainly does not mean a provision of the law that was intentionally incorporated in order to make the law good, reasonable or palatable to those voting on whether to enact it.
Despite this obvious truth, the gun-banners use “loophole” to describe two key provisions of their own Brady Law that established the background check system for those seeking to acquire firearms. Their “gun show loophole” refers to the fact that the scope of the government check system was limited to firearm transfers involving federally licensed dealers.
The scope of the law did not include transfers between friends, family, neighbors and fellow citizens who were not licensed. Had it done so, the Brady Law would not have been passed by Congress because the overreaching regulation of private citizen conduct would have caused too much opposition. This provision was not an error, and therefore is not a loophole.
The other is a provision of the law that could be described as a three-day limit for the FBI to conduct its “instant” background check. There are times when a name entered into the system raises some indication that the person might be a prohibited possessor of firearms, but more investigation is needed. The Brady Law allows government officials to research the situation for up to three business days. If the investigation has not been definitively concluded in the three days, the dealer may proceed with the transfer. This is often referred to as a “conditional proceed.”
This component of the law was not an error. Congress did not want Janet Reno’s Justice Department to be able to indefinitely deny Americans the ability to exercise their fundamental right to arms by simply never concluding a background check. Some might not remember those days, but this was not a far-fetched possibility by any stretch of the imagination. “Renegade” is a good way to describe Reno’s operation.
The time limit was also an incentive for local, state and federal officials to ensure that the information that was supposed to be entered into the National Instant Criminal Background Check System (NICS) was actually entered so the check would be instant, as the name advertised. This information was also essential for the check system to actually keep prohibited possessors from acquiring the firearms that would be illegal for them to possess.
The gun controllers are successfully selling the mainstream media on the story that this three-day limit is another “loophole” that needs to be closed. They want to give the FBI the power to indefinitely deny someone the ability to acquire a firearm. They don’t care that this would violate rights affirmed in the U.S. Constitution and the vast majority of state constitutions that recognize an individual right to arms.
It might be instructive here to see just a few examples of the most pertinent portions of these provisions:
U.S. Constitution—“… the right of the people, to keep and bear arms, shall not be infringed.”
Arizona Constitution—“The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired …”
Oklahoma Constitution—“The right of a citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited.”
Again, words—such as “infringed,” “impaired” and “prohibited”—are supposed to have definite meanings. The ability of government authorities to indefinitely delay or unilaterally reject a good citizen’s ability to buy a firearm by eliminating the three-day limit to the Brady background check would entirely contradict the very clear language employed in the federal and many state constitutions.
The “instant” portion of the National Instant Check System was not a mistake. It has meaning too. If more than a few moments of delay is not an infringement, impairment or prohibition of a constitutional right, what is? Would a month be too long? A year? A lifetime? Where is the line?Those complaining about the “conditional proceed” provision of NICS don’t care about a person’s ability to act in self-defense. They like for people to be totally dependent on the government for their protection.
Incidentally, the three-day limit that the gun controllers are griping about could actually be an entire week: The provision only contemplates business days that begin to register the day after the firearm transfer was requested. This excludes holidays and weekends from the count. So, if I try to buy a gun from a dealer the Wednesday before Thanksgiving, the government could prohibit the transfer until the following Wednesday.
The FBI’s own NICS fact sheet states that the system is “all about saving lives and protecting people from harm—by not letting guns and explosives fall into the wrong hands. It also ensures the timely transfer of firearms to eligible gun buyers” (emphasis mine). Timely to a woman being stalked by someone intent on violence means “immediate.” It means “instant.” It doesn’t mean an hour, a day, three days, a week or forever. She needs to save her own life and protect herself from harm, thank you very much.
Of course, those complaining about the “conditional proceed” provision of NICS don’t care about a person’s ability to act in self-defense. They like for people to be totally dependent on the government for their protection. However evil it sounds, it’s true.
When we hear the anti-gun establishment talk about a “loophole,” just know that it is really not. It’s an intentionally incorporated provision of the law that they don’t like because it allows free people to do what free people do. They know that all of their friends in the media will help sell their lie to the public. Don’t buy it. Talking heads for ABC, CBS and NBC will argue that words have meaning—until it suits their personal political agenda to ensure they don’t.