The Art Of The Preposterous

posted on January 26, 2017

The unintended consequences of some nonsensical gun control laws make us certain that only those who truly hate guns and gun owners could support them.

This feature appears in the February ‘17 issue of 
NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.  

Otto von Bismarck famously proposed that “politics is the art of the possible.” Gun politics, by contrast, seems more often to be the art of the preposterous. As of this year, there were more than 20,000 gun regulations within American law. Some of those regulations are straightforward and sensible. Some are debatable, at best. But a whole host—indeed, perhaps the majority—are absurd, serving solely to annoy the law-abiding and to confirm the ineradicability of hubris. Following are some of the silliest of them.

Under the terms of the 1986 Firearms Owners’ Protection Act, law-abiding Americans are “entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm.” Crucially, this rule applies regardless of the laws in the intervening states. Suppose, for example, that you had to drive through California on your way from Oregon to Arizona, and that you wanted to bring your guns with you. Thanks to FOPA, you cannot be prosecuted for illegal possession under California’s hyper-strict rules.

In almost every state, this law is respected. In New Jersey and New York, however, it has recently been perverted beyond all reason. In 2013, an activist 3rd Circuit judge held that it was inconceivable that the law’s reference to “vehicles” could be understood to apply to aircraft, and that as a result, the many busy airports within New Jersey and New York were within their rights to ban their passengers from checking their guns.

This makes no sense. Not only is the word “vehicle” not defined anywhere in the statute, but 48 of the 50 states apply its provisions to aircraft—and have done so since its passage. Moreover, passengers who are traveling by air are, by definition, less able to “access” their guns when in transit than those who are traveling by car. All in all, the ruling has done nothing to aid public safety and everything to prevent Americans from transporting their firearms in and out of one of the country’s most populous areas.There have been no documented cases of customers causing trouble inside postal facilities; and I have heard no good arguments as to why leaving one’s firearm in one’s locked car for a few minutes represents a threat to public safety.

But we won’t stop there. Since 1998, both the federal and state governments have enjoyed the ability to run criminal background checks in a matter of only a few seconds. Alas, this technological breakthrough has not yet prompted all 50 states into updating their anachronistic “waiting period” laws. As of the time of writing, a waiting period upon certain firearm transactions exists in nine states: California, Florida, Hawaii, Illinois, Iowa, Maryland, Minnesota, New Jersey and Rhode Island. A waiting period also applies in Washington, D.C. In December 2016, the 9th Circuit reversed a lower federal court and ruled that California’s waiting period was both constitutional and represented “a reasonable safety precaution.”

Invariably, measures such as California’s are defended with the claim that the introduction of a time delay provides a “cooling off period” for the impulsively criminal. But there is no evidence whatsoever in favor of this proposition. In fact, nobody has ever provided a single story or police report to back up the theory.

By contrast, there is a good deal of evidence in favor of the counterargument: That slowing down the purchase process hurts those who wish to protect themselves. Unlike criminals, who mostly obtain their weapons on the black market, Americans who wish only to defend themselves tend to follow the rules. In 2015, a New Jersey resident named Carol Bowne became the tragic subject of national headlines after she was found stabbed to death by an ex-boyfriend while waiting for a gun permit.

The one-gun-per-month law is another anachronism that has for some reason survived the advent of the instant background check. Currently, three states—California, Maryland and New Jersey—plus Washington, D.C., have laws prohibiting their residents from buying more than one handgun per month.

In 2012, Virginia repealed its one-gun-per-month law, citing the arrival of instant background checks, the existence of a federal rule that already requires mass buyers be reported to the ATF, and the corruption that inevitably attaches itself to arbitrary regulation. This lattermost point was crucial: By the time Virginia’s repeal was signed, the law had been so routinely riddled with exemptions that it applied to almost nobody in the state.

Moreover, there was no evidence that Virginia’s experiment had done anything positive. And why would there be? Criminals do not like to buy guns in public or on camera, nor to present driver’s licenses and fill in paperwork. That goes for criminals in California, Maryland, New Jersey and the District, too.

Which brings us to U.S. Postal Service parking lots. Although concealed-carry rights have been greatly expanded over the last three decades, the federal government continues to lag behind the trend. In 2015, the 10th Circuit Court of Appeals ruled that the postal service is within its legal rights to prohibit firearms both within its buildings and on its extended property, and, in so doing, it upheld one of the more ridiculous laws in the U.S. According to the majority opinion, the Postal Service’s rules apply not only to its primary facilities, but to its parking lots, too. In consequence, any American who routinely carries a gun is obliged to avoid the area entirely.

Clearly, this puts a considerable dent in the capacity of law-abiding carriers to go about their daily business. And for what gain? There is nothing special about the post office that separates it from, say, a Wal-Mart. There have been no documented cases of customers causing trouble inside postal facilities; and I have heard no good arguments as to why leaving one’s firearm in one’s locked car for a few minutes represents a threat to public safety. Moreover, it should be obvious enough by now that anyone who seeks to do harm to others is already deaf to the law. A similar criticism can be applied to prohibitions on school grounds.

Equally dumb is New Jersey’s ban on hollow-point bullets. Breaking with the practice of every other state, New Jersey bars concealed-carry permit holders from putting hollow-point bullets into their magazines.

Why? Nobody is quite sure. After all, hollow-point rounds are not only more effective for self-defense than standard ammunition, but, because they are designed to stop in the body rather than to “over-penetrate,” they are also much safer for bystanders. That, of course, is exactly why the police use them—even in New Jersey.

To add insult to injury, this law has been routinely used against gun owners from other states who have entered New Jersey without knowing about its draconian laws. Among those who have been prosecuted or charged are Brian Aitken and Shaneen Allen, both of whom had selected hollow-point rounds for their carry guns because they had been recommended by experts.

If you think that makes no sense, consider the law barring you from buying a handgun in another state. The 1968 Gun Control Act imposes a set of irrational restrictions upon the firearm purchasing process, and none among them is so silly as the prohibition on buying handguns out of one’s home state. Under current American law, prospective purchasers are able to buy a long gun outside of their state of residency without shipping it through a federal dealer, but they are barred from buying a pistol or a revolver in the same manner. Furthermore, this statute applies even in such cases where the purchaser has a carry permit that is honored in both his home state and the state he’s visiting.

The obvious question: Why? The rule can’t be chalked up to simplicity. It can’t be a question of concealed carry, as that is determined by permits already. And it can’t be a matter of regulation, as the same paperwork and background-check rules apply irrespective of the sort of gun involved. When one buys a long gun, the rules of one’s home state must be observed—or, put another way, a resident of Connecticut can only buy in New Hampshire a gun he may own back home. Why don’t the same laws apply to handguns?

Bans on cosmetic features are similarly nonsensical. Firearms are potentially dangerous because they expel hard objects at great speed with extraordinary accuracy and range. They are not potentially dangerous because they look a certain way, or because they are comfortable to use. Yet, in a host of American states, ignorant lawmakers have banned accessories that have no effect whatsoever on the lethality of the guns they fit. In Washington, D.C.; California; Maryland; New York; and Connecticut (and often in Massachusetts and New Jersey), for example, citizens are unable to buy rifle stocks that can be adjusted to fit their bodies; are unable to add a pistol grip to their guns in order to allow a greater degree of control; and are unable to own a “flash suppressor.”Complaining that the court was refusing to take the right seriously, Thomas reminded his colleagues that “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document.” The Second Amendment, Thomas concluded, is not a “second-class right.”

As with the lattermost example, such prohibitions often serve to make the available weapons more, not less, dangerous. Among others, California U.S. Sen. Dianne Feinstein has spent a career attempting to prohibit firearms that feature “barrel shrouds,” in spite of the fact that the only plausible reason one would want such a device is to prevent oneself from being burned. One wonders what they will go after next: safety levers?

The suppression of suppressors is yet another example of the government making it difficult for gun owners to stay safe. Under federal law—and a host of related state laws—it is extremely difficult for most Americans to obtain a suppressor to protect their hearing while shooting.

In eight states, suppressors are banned outright. In the rest, getting hold of one is an arduous process. As a result of the 1934 Firearms Act, any gun owner who wishes to add a so-called “silencer” to his gun is obliged to pay a $200 tax and to submit to a federal background check that takes between four and 10 months. “Gun safety”? Hardly.

Allowing open carry without a license while requiring a permit for concealed carry is similarly confusing. Simply put, the majority of states within the Union have no permitting process for those who carry guns—until they put on coats.

Even in states generally known for being pro-Second Amendment, such as Montana, New Hampshire and Virginia, American citizens may carry a gun openly without the need for a background check or a permit, but are required to go through a long and bureaucratic process if they wish to conceal it. Why? Firearms do not magically become less dangerous if worn where they are visible, nor do carriers transform into criminals the moment they conceal their pistol.

In a rapidly increasing number of states, legislators have eliminated the permit requirement for both open and concealed carry, thereby putting them on the same logical footing. That this hasn’t been done everywhere boggles the mind.

Last, but not least, are arbitrary import restrictions. Under the terms of the 1968 Gun Control Act, the ATF is empowered to restrict firearm imports. Specifically, the GCA holds that only guns that have a “sporting purpose” may be brought in from abroad. What does “sporting purpose” mean in practice? Nobody knows. Indeed, it appears to mean whatever the incumbent president wants it to mean.

Especially in a post-Heller environment, such a provision is both irrational and, arguably, unconstitutional. As the U.S. Supreme Court correctly confirmed, the “right of the people to keep and bear arms” is not contingent upon any sporting intention, and the core purpose of the Second Amendment is the protection of self-defense. Why, then, would the government limit those items that can be brought into the United States to those with “sporting purposes”? As it stands, the only clear consequence of the rule is to increase the price of certain popular firearms. Perhaps that’s the aim?

Before he died, Justice Antonin Scalia joined with Justice Clarence Thomas in writing a couple of blistering Supreme Court dissents. Complaining that the court was refusing to take the right seriously, Thomas reminded his colleagues that “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document.” The Second Amendment, Thomas concluded, is not a “second-class right.”

And yet, all too often, it seems it is treated precisely in that way.


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