House Judiciary Commission Chair Jerrold Nadler, D-N.Y., and Speaker Nancy Pelosi, D-Calif.: “Universal background checks” may not work, but they’re a “good first step.”
Unable to contain his excitement at the prospect, U.S. Rep. Eric Swalwell, D-Calif., boasted in February that the federal legislature would be taking a different approach toward the Bill of Rights under new House Speaker Nancy Pelosi. “A new Congress,” Swalwell promised, “is putting your right to be safe over any other rights.” How far we have come since the days of Patrick Henry! “Give me liberty or give me ... comfort?”
The proximate cause of Swalwell’s enthusiasm was the House of Representatives scheduling a hearing to discuss gun control, which, as Swalwell subsequently made clear, would be swiftly followed by the Democrat party in the House gearing up to pass precisely the same set of measures that the Democrat party in the House always tries to pass. Yes, you’ve guessed it: “Universal” background checks are back on the docket, although this time their introduction has been marked by a subtle shift in the supporting language.
To their boilerplate rhetoric, advocates have begun adding a host of novel caveats: “Universal” background checks, congressional Democrats have explained, represent “a start”; they are, they insist, just “one part of a broader package” of regulations that the new Congress will look at imposing. This, we are told, is the “first step.” Once a panacea against all ills and abuses, the measure has been quietly transmuted into an overture to something even more dramatic.
A 10-year study of California’s background check regime, conducted by the openly anti-gun Violence Prevention Research Program and Johns Hopkins Bloomberg School of Public Health, found “no net difference between firearm-related homicide rates before and during the 10 years after policy implementation.”
This shift is an alarming one, certainly. One suspects we may come to long for the era in which the gun control movement tried to hide its radicalism. And yet, it is perhaps not surprising, given that, if anything, the case for “universal” background checks has become weaker, not stronger, in recent years. As Lois Beckett noted in The Guardian in 2017, we now have the results from a number of states that experimented with “laws requiring criminal background checks on every single gun sale,” and those results have proven extremely disappointing to their advocates.
Research “conducted by some of America’s most well-respected gun violence researchers,” Beckett reported, “concluded that the new laws had little measurable effect”—a result that represented “a setback for a growing gun control movement that has centered its national strategy” on replicating the success it has had in a handful of state capitals. The states to which Beckett was referring were Colorado and Washington, but those two are by no means alone in their failure. A 10-year study of California’s background check regime, conducted by the openly anti-gun Violence Prevention Research Program and Johns Hopkins Bloomberg School of Public Health, found “no net difference between firearm-related homicide rates before and during the 10 years after policy implementation.” Per the University of California-Davis, the California investigation “compared observed annual firearm homicide and suicide rates in California over 10 years following enactment of comprehensive background check and misdemeanor violence prohibition policies in 1991 with expected rates based on data from 32 control states that did not have these policies and did not implement other major firearm policies during the same time.” The result? “No change in the rates of either cause of death from firearms through 2000.”
In and of itself, this should be a sufficient reason for Congress to reject the expansion of the experiment to the entire country. But, when combined with the other crucial considerations, those who persist in their desire for national laws regulating the private transfer of arms begin to look downright sinister. Free people do not consent to intrusive laws absent an extremely compelling set of reasons, and no such set of reasons exists here.
On the contrary, there exists a compelling set of reasons for Americans to strenuously resist this proposal. Among them are: (a) it is likely illegal; (b) it introduces a de facto gun registry, of the sort that is presently prohibited under federal law; (c) it would inevitably be enforced capriciously and without rhyme or reason, to the detriment of the weaker and less powerful among the citizenry; and (d) it would take resources away from those who are tasked with monitoring the places criminals actually get their guns.
Advocates of “universal” background checks tend to ignore the question of legality and skip straight to debating the efficacy or moral desirability of their coveted plans. But in a nation of laws such as the United States, this represents an unacceptable bypassing of the regnant system, for, even if there were a strong case for its passage, it is not at all clear that a federal “universal” background check law would be constitutional.
Leaving the quite obvious Second Amendment objections to one side, the Constitution deliberately grants Congress only a limited range of powers, and explicitly leaves the rest to the states and to the people. Specifically, the Constitution’s “Commerce Clause” permits the federal government “to regulate commerce with foreign nations, and among the several states,” but does not accord it unlimited license to regulate purely internal matters. Given that eligible individuals who transfer firearms across state lines are already required to undergo a background check, the unambiguous purpose of a federal “universal” background check law would be to regulate private property transfers between citizens who reside in the same state—many of whom, by definition, would in no meaningful way be engaged in “commerce.” This, clearly, is a problem, for if the individuals at whom the measure is aimed are not in fact engaged in “commerce among the several states,” then the federal government is obliged to leave the question to the states. Or, put another way, it is obliged to leave the law exactly as it currently stands.
I should note here that when I say “the law,” I am referring to more than just the rules governing background checks. I am also referring to the prohibition against a federal gun registry. Under the terms of the 1986 Firearms Owners’ Protection Act, it is illegal for “the United States or any state or any political subdivision thereof” to keep a registry of any firearm that is not included within the list of those regulated by the 1934 National Firearms Act. Were Congress to authorize “universal” background checks, this interdiction, which is already flaunted too readily, would be blown completely out of the water. Put simply, there is no way of making a “universal” background check system work without giving the government access to records that tie every single legally owned gun in the country to its owner.
At present, the rules governing commercial sales make it possible for the federal government to learn who initially bought a firearm that was sold by a licensed dealer. After that, though, the fate of the gun is untraceable in most states. In a country that values privacy—and, more importantly, in a country that comprehends the danger of giving the state too much power over individuals—this is appropriate, not least because it renders the authorities wholly incapable of executing a confiscation plan. It is no accident that California’s background check changes were accompanied by a registry, or that the vast majority of the politicians who hope to make California’s system the national system also want a registry of their own. Background checks on private sales and registries tying guns to owners go hand in hand. To avoid one, Americans should avoid the other.
Why on earth is Swalwell so excited? Is it that he does not know that the system is useless? Is it that he does not care?
It is at this point during the objections that the architects of “universal” background checks tend to seek refuge in what might best be described as an appeal to infrequency. “What are you so worried about?” they will ask. “This will barely be used. And, besides, we’re not coming after you.” On its own terms, it is bizarre to hear the advocates of a given reform openly endorsing it on the grounds that it will not be stringently enforced. Why, one must ask, if a measure will be largely ignored, is it so crucial that it be passed in the first place?
But buried in the reassurance is a far more serious problem: Rarely enforced laws are capriciously enforced laws, and capriciously enforced laws take a greater toll on the weaker among us than they do on the strong. Among the many reasons that the background check experiments in California, Colorado and Washington state failed is that it is nigh-on impossible for the authorities to know where they should be looking for wrongdoing. If the government suspects that a licensed dealer is selling firearms to ineligible customers, it can stake out his place of business, place cameras next to his checkout line, interview his patrons once they have left his place of business or mount a sting operation in which officers pose as criminals. If, by contrast, an individual in Denver sells his rifle to a friend in his kitchen, nobody in a position of power knows that the transaction is so much as occurring, let alone that its details may be of interest.
When one adds into the mix the fact that the majority of criminals obtain their weapons through the underground market, through theft or from someone else at the scene of their crime, the idea that the nation’s police departments can effectively intervene becomes rather silly. In practice, the only transfers that would even appear on the government’s radar would be those that were advertised in the local paper or on the internet. Once that was understood, such advertisements would swiftly disappear.
This, in effect, means that the sort of people who are most likely to be caught in the net are the sort of people who are always most likely to be caught in the net. By this, I mean those who live in dangerous areas—who are often the victims of crime themselves, and whose contact with the police is the product of their having been assaulted, robbed or otherwise inconvenienced—and those who have made mistakes that violated the letter of the law, but not its spirit. It is extremely unlikely that a person in a wealthy, safe, gated area will be incidentally discovered in possession of a firearm that was improperly transferred, purchased or loaned. It is far more likely that a less fortunate person will—especially when one takes into account that the bills the Democrats hope to pass this year would make it a crime, under a whole host of circumstances, to even hand a firearm to another person.
And for what? So that Congress can illegally establish an unenforceable system that, at the state level, has had no measurable effect? If the lesson that the House of Representatives draws from the last 30 years of criminal-justice legislation is that the United States needs more laws that can be deployed against those who are already down on their luck ... well, then we really are lost.
All this raises an important question: Why on earth is Swalwell so excited? Is it that he does not know that the system is useless? Is it that he does not care? Is it that he sees the downsides as opportunities—to nix the prohibition against gun registries; to empower the federal government to track the movement of every firearm in circulation; and to say, a few years down the line, “Well that didn’t work, so we need more, more, more”? Or is it all of the above, coupled with an unhealthy dose of contempt for gun owners and the areas in which they tend to live?
President Calvin Coolidge spoke for the ages when he observed, “It is much more important to kill bad bills than to pass good ones.” It is tough to think of a proposal to which this maxim more keenly applies.
Charles C.W. Cooke is the editor of National Review Online and a frequent America’s 1st Freedom contributor.