Against Universal Background Checks
Mitch McConnell has confirmed that when the Senate reconvenes in September to discuss new federal gun-control measures, “universal background checks” will “lead the discussion.” If that is the case, the Senate should listen carefully to the proposals on offer, and then politely decline to assent.
Absent further examination, “universal background checks” appear to represent the inoffensive extension of an already existing principle. At present, the federal government mandates that an instant background check be run prior to the completion of all commercial and interstate firearms transactions. This being so, the argument runs, there can be nothing wrong with Washington extending that rule to private transfers, to non-commercial transfers, and to purely intrastate transfers.
But there can, and there is. The idea is unconstitutional. It requires the establishment of a de facto federal gun registry — long a no-no in American politics. It would considerably inconvenience law-abiding gun owners while doing nothing to prevent the problem, mass shootings, to which it is being touted as a response. And, as even friendly studies from Washington and Colorado have shown, it doesn’t work.
Upholding the Constitution is a task that falls to all of government’s branches, not solely to the Supreme Court. One cannot uphold the Constitution and pass “universal background checks.” By explicit design, the federal government is prohibited from acting outside of the limited set of powers that the Constitution has granted to it. None of those powers permit it to superintend private firearms transactions that take place between two residents of a single state. Because it limits its remit to the regulation of federally licensed businesses and of commerce between the states, the existing background-check system does not fall afoul of the limits that have been placed on Washington. Because they explode that remit, universal background checks absolutely do. If the federal government is able to control what two citizens of a state do with their already-manufactured and already-purchased property, the federal government’s power has no boundaries. Every election season, Republicans tell us that if they are awarded a majority they will keep the Leviathan at bay. This is a chance for them to prove it.
Equally problematic is that universal background checks require the creation of a national gun registry that can be used to check compliance. Indeed, without such a registry, the system is rendered useless because there is no way for the government to prove whether a transaction has been made in compliance with the law or outside of it. Apologists for the idea like to dissemble on this question by insisting that the records would be kept by third parties or that they would be decentralized. But this, of course, is to miss the point. If the government has access to information about who owns which guns, and where, then it has access to a registry. As they have in the past, Americans should resist this development robustly, for the history of gun registries in America is the history of private citizens handing over great gobs of information to the government for no discernible reward. A government that knows where all the guns are is a government that can stage a confiscation drive — or, in the Orwellian parlance of modern gun-controllers, a “mandatory buyback” drive. Those who doubt this need look no further than to Venezuela.
And then there is the rather inconvenient fact that universal background checks do not actually work. After Washington, Colorado, and Delaware passed laws mandating that all intrastate transfers involve a background check, boosters of the idea hoped to see results that they could pitch nationally. But they got no such thing. Per research conducted by self-professed gun-control advocate Garen Wintemute (and others), the imposition of laws requiring more background checks be conducted resulted in no more background checks being conducted in two of the three states (Washington and Colorado), and in a small rise in Delaware. “These aren’t the results I hoped to see,” Wintemute conceded. “I hoped to see an effect. But it’s much more important to see what’s actually happened.” Indeed it is. Which, in turn, raises a question: Why would we extend the federal government beyond its established legal role, institute an invasive national gun registry, make it more difficult for peaceful Americans to remain in compliance with the law, and increase the number of people in prison for arcane malum prohibitum infractions in pursuit of a policy that doesn’t help?
