Saturday, July 11, 2015

Charleston Checks

There are a number of stories that have been circulated about how the Charleston shooter acquired his weapon. They include:

- The boy's father gave it to him as a twenty first birthday present.
- He purchased it legally himself and passed a background check.
- He purchased it legally himself and incorrectly passed a background check due to a mistake in entering data.

Pro-gun people are using all three of these versions of the story to "prove" that background checks don't prevent gun violence. Anti-gun people are using the same stories to "prove" that we need more background checks.

As usual, the truth is more complicated than either narrative.

One of the pro-gun arguments is that even if he had been prevented from buying a gun, he could have used another weapon. I think this is a valid argument in this case. The boy wanted to start a "war" between the races by killing people. Had he not been able to purchase a gun legally he could have purchased one illegally, or he could easily have used a knife, or a homemade bomb, or a molotov cocktail. It is impossible to stop someone who is determined to kill innocent people from attempting to do so. In this case, a background check is entirely useless and irrelevant.

Another pro-gun argument is that if any of the victims had been armed the situation would have been drastically different. In fact, it is likely the shooting never would have happened at all, since the killer (like every other mass shooter) chose a gun-free zone specifically to maximize his ability to kill with impunity. Again, this is a valid argument. Had the church members been armed, they likely would have deterred the boy form opening fire, or at the very least, stopped him. Some have said that because they were Christians in a church they chose to allow themselves to be killed (turning the other cheek, as it were). But the same witness to Christ could have been performed had they been armed, by simply not drawing their weapons. In fact, that situation would have been an even stronger witness. After all, Christ had the power to stop the Crucifixion (John 10:17-18):
"For this reason the Father loves me, because I lay down my life in order to take it up again. No one takes it from me, but I lay it down of my own accord. I have power to lay it down, and I have power to take it up again. I have received this command from my Father.”

On the anti-gun side, one argument is that we need background checks to cover every transfer of a gun, even a father giving one to his son. This is ridiculous. First off, a similar law was passed in Oregon. It is unenforceable. The image at the top of this article is from a hunter education course,  demonstrating the safe way to cross a fence or other barrier. One person holds both firearms while the other crosses. This is now a crime in Oregon. Likewise dozens of other perfectly legitimate scenarios. Yes, you can add all sorts of exemptions, but you will never cover all the legitimate cases, and all that law does is criminalize innocent behavior of citizens while doing nothing to prevent criminal gun use (do you really think someone intent on murder is going to worry about whether he obtained his weapon legally?).

And such a law is superfluous, as it is already illegal to transfer a firearm to a person who is prohibited from possessing a firearm. So even without expanded background check in place the father would already have been committing a crime in the first scenario (the father gave the son a gun). Adding a law to forbid something illegal doesn't make it any more or less illegal.

In the third scenario the anti-gun people make the argument that although the system failed this time, it did so by accident, and it would have worked had mistakes not been made. That's true, the background check system, if it had been working, would have prevented the boy from purchasing a hand gun legally. But as noted, it would likely have had no effect on the outcome.

That said, I think background checks do have their place. If we have a law that felons can't possess firearms, then we need to identify who is a felon. However, the system we have in place today is both ineffective and unconstitutional. Here's why we need to reform background checks.

First off, the existing background check system can only be performed by a federally licensed firearm dealer. That means if I want to sell a gun to a stranger (or even a friend) I can't be sure they are not a felon. You might say "ban all private sales" but that is not enforceable, and not reasonable. It would be adding a huge burden to the 99+% of legitimate sales, and make guns out of reach to a large segment of the population, who will no longer be able to afford to hunt for food or defend themselves (by my estimation it would add at least $200 to every transfer).

Secondly, the existing system is unconstitutional. All that needs to be done in a background check is to identify whether or not the purchaser is a prohibited person. All that should be required is identifying the person.

Instead, the existing system requires filling out four pages of information, including statements whose only purpose is to violate the fifth amendment, and others which record things like race, ethnicity and political affiliation. The form also records the seller, make, model and serial number of the firearm being purchased, which has no bearing on whether or not the purchaser has committed a crime, but constitutes a de facto firearm registration system, in violation of the law.

Why not have a system which allows anyone to submit identification information and return a simple "yes/no" as to whether the person is prohibited from possessing firearms under the law? This is a constitutional disclosure of public information (certainly less invasive than the sex offender registry), and would allow private sellers to do background checks. Since it is already a crime to knowingly transfer a gun to someone who is a prohibited person, this would take care of all the possible scenarios, without burdening anyone (other than requiring the seller to make a phone call or browse a web page).

Oh, and one other thing. Since these criminals are also barred from voting, it would be a good way to prevent them from voting illegally. If you consider the right to vote as important as the right o bear arms, then it should have the same protections. If we are going to require background checks for firearm purchases we should apply the same background check process to voting.

Would my proposed background check system have prevented the Charleston tragedy? Probably not, but it would at least be constitutional.


Post a Comment