This Gun-Control Package Says What?

posted on August 25, 2022
J. Scott Applewhite/AP

In 1780, while writing the first Constitution of Massachusetts, John Adams demanded “a government of laws and not of men.” In part, this was a rejection of monarchy and an endorsement of separation of powers. It was also a call for clarity in law. As an experienced lawyer, Adams understood all too well that sloppy, vague and ambiguous statutes reduce liberty by making it impossible for the citizenry to understand the rules by which it is bound. Good laws empower free people; bad laws empower overbearing government. 

By Adams’ standard, Washington, D.C.’s, newest gun-control measure, The Bipartisan Safer Communities Act, is a bad law.

Given the way it was written, it was always going to be. 

The product is a haphazard, slapdash mess—the result not of assiduous deliberation, but the inevitable outcome of a small group of senators rushing to agree to something before the summer break. 

In and of itself, such behavior is problematic; irrespective of the quality of their work, lawmakers should not be chipping away at our constitutional rights in the interest of seeming busy. But, if they are determined to change the law, they ought to do so with circumspection and with prudence. The Bipartisan Safer Communities Act exhibits neither of these qualities.

There are three parts to the new law. The first part alters the eligibility requirements for purchasing firearms and establishes a new system of enhanced background checks for buyers between 18 and 21 years of age. The second part subtly alters existing federal law in ways that remain unclear to everyone—including, it seems, to the people who wrote the alterations. And the third part funnels billions of dollars to the states in the hope that they will set up “red-flag” provisions on which they otherwise would have likely demurred. All three of these parts are a jumble.

In hastily writing the Bipartisan Safer Communities Act, the U.S. Senate panicked. Gun owners will pay the price.  

Under the new law, Americans aged 18, 19 or 20 will be subjected to a broader background check than everyone else. Specifically, National Instant Criminal Background Check System (NICS) will be searched for “criminal history repository or juvenile justice information,” “mental health adjudication records” and anything possessed by the applicant’s “local law enforcement agency.” If these checks are inconclusive, the sale can be delayed for up to 10 days while they are completed by the FBI—a week longer than for everyone else. In theory, NICS should obtain this information automatically. But, of course, NICS isn’t connected to these sources, and, in the case of the 17,985 local law-enforcement agencies in the United States, it is not obvious how it ever could be. Which means that, contrary to the promises of the bill’s authors, the provision will either be useless or millions of American citizens will be subjected to a de facto 10-day waiting period while these checks are performed manually.

Equally confusing are the changed eligibility requirements. Under the new rules, any American who has a juvenile record is henceforth prohibited from purchasing a gun. But, inexplicably, this rule is not applied to possession. There is also no clear process in the law for dealing with Americans whose juvenile records have been expunged. Is the possession exemption deliberate, or is it a drafting error? Do expunged records wipe away the new rule, or does it exist independently? Nobody seems to know—or care. Nor do they seem to care that the changed definitions in the domestic-violence section are inscrutable—what, exactly, is a “dating relationship”?

The second part of the law is no better. It reiterates that straw purchasing is illegal—as if the problem were that Congress hadn’t repeatedly made this clear, rather than that the federal government simply does not bother to enforce it—and
it makes some peculiar, suspicion-inducing changes to the definition of “Federal Firearms License.” Alarmingly, the law amends the explanation of “engaged in the business” so that it reads “to predominantly earn a profit” instead of “with the principal objective of livelihood and profit.” Why? Again, no explanation of this has been forthcoming, but it seems mightily convenient that, for decades, Democrat presidents have complained that they cannot impose universal background checks by fiat because the definition of FFL is too tightly written, but now, all of a sudden, a “do something!” bill has altered that definition in ways that were never publicly debated. Are law-abiding citizens more or less likely to exercise their rights when the law is stressfully unclear? And, if they are less likely, who does that benefit?

As for the third part, which funnels money to the states in the hope they will do what Congress wants them to do, one must simply ask “why?” There is no state in the union that has declined to set up a “red-flag” system for lack of funds. Clearly, that is not the key objection. Once again, it appears that Washington, D.C., is attempting to get around the U.S. Constitution’s strict limits on federal power by attempting to bribe the states into doing what it cannot force them to do. This, suffice it to say, is not why Americans pay federal taxes.

Explanations of the Senate’s role in the American system often cast the institution as a “saucer” that can be used to “cool” the passions of the U.S. House of Representatives, just as a saucer may be used to cool hot tea. At its best, the Senate does, indeed, play this role. At its worst, it panics as readily as the rest of them. In hastily writing the Bipartisan Safer Communities Act, the Senate panicked. Gun owners will be paying the price for decades to come.


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