A lot has been written and said about this particular piece of legislation. After spending a little bit of time in the actual language I found not a “background check bill” or even a “gun control/safety bill”. No, this legislation really is a “control bill for people we don’t like”. So let’s go through the language and see what I mean.
Purpose of the Bill
SEC. 2. PURPOSE.
The purpose of this Act is to utilize the current background checks process in the United States to ensure individuals prohibited from gun possession are not able to obtain firearms.
The stated purpose of this bill is to use the current background check system to “ensure” those prohibited from possessing guns from obtaining them. (We will abbreviate “those prohibited from possessing guns” to “prohibited persons”.)
ENSURE: to make sure, certain, or safe : GUARANTEE
There is nothing I have found in the language of this bill that makes certain or guarantees that those who are prohibited from possessing a firearm will not be able to get them. There is plenty of research that shows most prohibited persons do not attempt to purchase a firearm legally and even more that shows how easy it is for them to bypass any background check system. I will leave you to your favorite search engine to track some of them down, (although I do recommend https://crimeresearch.org/ as a good place to start). Simple logic will tell you that someone who is going to commit a crime with a firearm is probably not that worried about committing a crime to get one.
We will see as we go through the language that the actual purpose of the bill is two-fold, neither of which actually ensures prohibited persons cannot possess firearms.
Constitutionally Speaking
From a constitutional stand point, there is absolutely no authority for Congress to regulate the purchase, transfer, or possession of arms of any type. And, since the 2nd Amendment says that the right of the people to keep and bear arms shall not be infringed, Congress is prohibited from doing so except through due process, meaning someone must be charged and convicted of a crime through a process that both conforms to the Constitution and protects the accused’s rights.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Since this bill does not impose any new restrictions targeted at prohibited persons, but only at law abiding citizens, it fails its stated purpose right off the bat. And, should this law pass both houses and be signed into law, it would be, be definition, repugnant to the Constitution and therefore void.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
Interstate Commerce
It shall be unlawful for any person who is not a licensed importer, licensed manufacturer, or licensed dealer to transfer a firearm to any other person who is not so licensed, unless a licensed importer, licensed manufacturer, or licensed dealer has first taken possession of the firearm for the purpose of complying with subsection (s).
Congress has no authority to regulate commerce that occurs within a state. While an argument could be made that Congress could regulate the sale of firearms internationally or across state lines, the Commerce Clause does not give them the authority to regulate the transfer of legally owned merchandise within a state.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Article I, Section 8, Clause 3
COMMERCE: In a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick.
Neither does Congress have the authority to determine who is and is not qualified to deal in any product, except as a part of international or interstate commerce.
Since this legislation attempts to regulate intrastate commerce and non-commercial transfers of property, it is repugnant to the Constitution and would therefore be void.
Not About Guns!
While the stated purpose of this legislation is to ensure prohibited persons cannot possess guns, there is a significantly important loophole in the language.
(2) Paragraph (1) shall not apply to—
“(A) a law enforcement agency or any law enforcement officer, armed private security professional, or member of the armed forces, to the extent the officer, professional, or member is acting within the course and scope of employment and official duties;
Isn’t it interesting that government agents or those in a profession often used by them (private security professionals), are exempt from these restrictions? Do you think when someone puts on a badge, joins the military, or simply takes a job as a security guard, they are suddenly trustworthy and without question will follow the law? Could it be that they’ve already gone through a background check? Meanwhile, millions of those who possess firearm carry licenses and have already gone through background checks, are not exempt? Could it be that only those who work for the government can be trusted with transferring firearms? If so, then why exempt private security?
Is it possible we have found the first real purpose of this bill, which is to increase the imbalance of power between the government and the citizens they are supposed to work for? Is it supposed to make it harder and more painful for ordinary citizens to exercise their rights by further weakening or preventing them from protecting themselves? Or could the actual purpose be to make it harder for everyday Americans to stand up to an ever more tyrannical government by decreasing their access to arms?
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
It appears that there are many in Congress who are afraid to trust the people with arms, and more than willing to infringe on their rights to control them.
Families?
(2) Paragraph (1) shall not apply to—
“(B) a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren;
Congress also wants to decide what is a loan or gift of a firearm and to whom you can make such loan or gift. Where does Congress get the authority to define family members or how far removed one such member can be to accept a gift of a firearm? Unfortunately, it is the same place they get the authority to regulate such transfers in the first place: The apathy of the American people. But more on that later.
Self Defense, Maybe?
(2) Paragraph (1) shall not apply to—
“(D) a temporary transfer that is necessary to prevent imminent death or great bodily harm, if the possession by the transferee lasts only as long as immediately necessary to prevent the imminent death or great bodily harm;
You can borrow a gun, but only as long as there is an imminent threat of death or great bodily harm. Does that mean I can lend you a firearm in the middle of a gun fight, but not to protect yourself from a disgruntled person who has threatened you? What about someone who has a protective order against an ex-spouse or boyfriend who is considered a threat? Must they pay their fee and arrange to go to a gun store to borrow a firearm to defend themselves? Isn’t this more about restricting access to firearms for innocent people more than preventing prohibited persons?
Special People
(2) Paragraph (1) shall not apply to—
“(E) a transfer that is approved by the Attorney General under section 5812 of the Internal Revenue Code of 1986;
Of course, if you happen to have some pull within the government, you can always get the Attorney General to approve your transfer for you. Might this just be more cronyism rolled up in bad legislation, that those we hire to represent us are trying to shove down our throats?
Temporary Transfers
(2) Paragraph (1) shall not apply to—
“(F) a temporary transfer if the transferor has no reason to believe that the transferee will use or intends to use the firearm in a crime or is prohibited from possessing firearms under State or Federal law, and the transfer takes place and the transferee’s possession of the firearm is exclusively—
“(i) at a shooting range or in a shooting gallery or other area designated for the purpose of target shooting;
“(ii) while reasonably necessary for the purposes of hunting, trapping, or fishing, if the transferor—
“(I) has no reason to believe that the transferee intends to use the firearm in a place where it is illegal; and
“(II) has reason to believe that the transferee will comply with all licensing and permit requirements for such hunting, trapping, or fishing; or
“(iii) while in the presence of the transferor.
The government will give their permission to share a firearm as long as you are at a shooting range or hunting, but only as long as the gun remains in your presence. What does this have to do with ensuring guns are kept out of the hands of prohibited possessors? Absolutely nothing. Why does the government care about the place or reason you are sharing a firearm? Is the prohibited possessor somehow magically prevented from entering a shooting range? Are they no longer able to hunt or fish? This is simply the government assuming the power to determine when it will allow you to engage in a legal past-time with others. This is a power they are not legally authorized to wield and one we must punish them for trying to usurp.
Revenue
“(D) Regulations promulgated under this paragraph may not include any provision placing a cap on the fee licensees may charge to facilitate transfers in accordance with paragraph (1).
Why do you think Congress doesn’t want to put a cap on the fees that may be charged to perform these background checks? I mean, don’t these fees disproportionately hurt the poor, who may not be able to afford the fees Congress is indirectly imposing on them for sharing firearms? Must the single-mom who wishes to protect her children pay whatever fee the gun store wishes to charge to facilitate the transfer for the government?
Firearm Registry
SEC. 5. RULE OF CONSTRUCTION.
Nothing in this Act, or any amendment made by this Act, shall be construed to—
(1) authorize the establishment, directly or indirectly, of a national firearms registry;
How can the government know if you went through an approved transfer without a registry of what guns are owned by whom? How will they know if you are lying when you say you and Uncle Bob went to the gun store for the transfer? The government is supposed to destroy the personal information of those getting background checks to purchase a firearm anyway, so how will they know?
Simple, because now we have found the second real purpose for this bill. While this bill will not establish a national registry, its inherent ineffectiveness will be the excuse necessary for new legislation to start one. Otherwise, this would be a law with no enforcement mechanism. Just as the National Firearm Act led to more and more restrictions on what firearms ordinary people could possess, were this bill to become law it would logically lead to more and more control over who, where, and when law abiding Americans can purchase guns.
Where Congressional Power Comes From
The only reason those in Congress can not only propose such a bill, but get it passed, is because of the apathy of the American people. There is no power delegated to Congress to enact such legislation, yet Americans stand by and watch while their rights are being taken away. Yes, this bill is a violation of the Second Amendment, but it is so much more. It is a violation of separation of powers between the states and the federal government, of the Commerce Clause, and of equal protection under the law (Amendment XIV, Section 1). Unless we hold our elected officials to their oath to support the Constitution, they will continue to subvert our rights. If we will not hold those who represent us to account for their actions, we shouldn’t be surprised when they repeat themselves.
So, if you’re thinking you don’t need to do anything because this law won’t impact you, remember this: If we allow Congress to violate one of our rights, we encourage them to violate any of our rights. Today it may be firearms, tomorrow it may be property. And before you think I’m exaggerating, take a look at federal Civil Asset Forfeiture laws.
