Dave Kopel on Testimony About the "The Fix Gun Checks Act"

youtube.com ^ | 16 November, 2011 | Dave Kopel

[marktwain]

Cam Edwards talks to Dave Kopel from the Independence Institute, who discusses his testimony before today's Senate Judiciary Committee Crime and Terrorism Subcommittee hearing on "The Fix Gun Checks Act: Better State and Federal Compliance, Smarter Enforcement."

[marktwain]

The video is well worth watching. Kopel is well informed.

[sweetiepiezer]

ping

[backwoods-engineer]

My memory is that “Fix Gun Checks” actually removes the right to sell private property (guns) to another individual without government approval. Correct? If so, the 2nd Amendment right is infringed by such an act, and therefore it is unconstitutional on its face.

[supercat]

Background checks might be reasonable if:

1. They could be performed with zero hassle or expense for buyer or seller, and without requiring any information to be exposed to the government in any form which could be persisted, and
2. One could be certain that the government would never attempt to use them to deny the rights of mentally-competent individuals who had never been convicted of any crime.

Given that the government has used information obtained from background checks in ways that were detrimental to firearms purchasers, and has deliberately endeavored to deny the rights of people who haven't even been accused--much less convicted--of any crime, I think it's fair to say that the criteria required for background checks to be "reasonable" have not yet been met.

Note that it might be reasonable to require a "background check" that would consist of an examination of the prospective buyer's ankle to ensure there's no parolee-tracking device there, but I doubt those pushing for "background checks" would be satisfied with just that.

[marktwain]

The concept that the government could or should only “allow” certain people to buy guns stands the very concept of American jurisprudence on its head. It presumes that the government knows all, controls all, and should be doing so. It is wrong and ineffective. It is the opposite of preventing criminals from possessing guns.

It is crazy to set up a huge expensive bureaucratic system, require everyone to jump though hoops and prove that they are *not* criminals in order to try, ineffectively, to prevent the few individuals who are not responsible, from having legal access to guns. This is a failed paradigm, and it should be abandoned. To accept the idea that the all gun sales should be monitored by the government, and only allowed to those it deems satisfactory is fundamentally wrong.

The entire idea of the enterprise has always been the death of a thousand cuts, where the restrictions on who can buy, and where, and how and what are continually increased until the number of gun owners is reduced to political insignificance.

[William Tell]

supercat said: "Background checks might be reasonable if: "

Background checks are a prior restraint on the transfer of firearms. One cannot exercise the right to keep and bear arms without being able to obtain arms. Background checks are an infringement and I have seen no proof that crime is affected in any way.

And it wouldn't matter if I had. Our Founders had plenty of time to consider whether some infringements made sense or not. The government was the enemy then and it is the enemy now.

I am on step five of what appears to be seven steps that I need to follow to get a handgun that I want. I already own several handguns and the state of Kalifornia KNOWS that I own them. All of the procedures I have to go through are to harass gun owners. Kalifornia's crime rate is unaffected by them.

[supercat]

Background checks are a prior restraint on the transfer of firearms.

Would you consider a requirement that a gun seller ensure that a person's ankle doesn't have a parolee-tracking device to be a "prior restraint"? It would seem that such a check could be conducted within seconds, at zero cost, and without giving the government any opportunity to observe the transaction. Further, a requirement that people be fitted with a parolee-tracking device on the mere suspicion that they might conceivably commit a crime in future would meet with sufficient opposition that it would seem unlikely that such a thing would get imposed in practice.

[William Tell]

supercat said: "Would you consider a requirement that a gun seller ..."

No.

This "logic" is what has led to the prohibition against private party transfers in Kalifornia. All gun transfers must go through an FFL which entails fees, delays, and gun registration.

I would sooner encourage the 24 hour monitoring of felons. With GPS technology it should be simple to arrest any felon who strays within 100 feet of an FFL.

Can you provide even anecdotal evidence of a crime being prevented because of the FFL system? I've paid hundreds of dollars in fees because of it. What do I get for the money? I already know that I am not a felon. It should be the state which pays for all this nonsense, even if the Constitution would allow it.

The federal FFL system is the enabler of practically all the other nonsense. It's the mechanism which makes it practical for Kalifornia to outlaw the sale of handguns which haven't been proved safe by the manufacturer paying thousands of dollars per model.

I stopped doing business with an FFL because he didn't have the time or energy to educate himself on all the ins and outs of the "assault weapons" laws. I now do business with an FFL who lives 67 miles from my place because he was willing to transfer a Romanian semi-automatic rifle to me. I ended up driving 268 miles in addition to all the other expenses to obtain it.

I don't believe that the law requires that any FFL do business with any person. If every FFL in Kalifornia refused to do business with me, just where am I expected to go in order to exercise my RIGHT to keep and bear arms?

[supercat]

I would sooner encourage the 24 hour monitoring of felons. With GPS technology it should be simple to arrest any felon who strays within 100 feet of an FFL.

If an escaped felon, wearing manacles, handcuffs, and a prison jumpsuit were to go into a store and attempt to buy a gun, should the store be allowed to sell him one without legal ramifications?

Restrictions which whose purpose or effect would be to cause people to arm themselves less effectively than they otherwise would are illegitimate; I would suggest that it would be possible to formulate some restrictions which are sufficiently non-restrictive of the rights of non-felons that they would be unlikely to materially affect anyone's legitimate exercise of the RKBA. That's not to say that I'd favor such restrictions, nor that gun grabbers would be even remotely satisfied with them, but rather that they could theoretically exist. Returning to my earlier example, to what extent would having a firearm seller look at a purchaser's ankle increase the cost of doing business or deter someone who could legally acquire a gun from doing so? For such a rule to have any useful effect, of course, one would have to require that parolees wear tracking devices; I doubt any liberals would be willing to inconvenience their constituency that much.

[William Tell]

supercat said: "Returning to my earlier example, to what extent would having a firearm seller look at a purchaser's ankle increase the cost of doing business or deter someone who could legally acquire a gun from doing so? "

The mere looking would not seem to entail much cost. The cost comes from the fact that an entire system of licensed gun sellers must be maintained in order to apply the prior restraint.

I think the federal form 4473 probably added a question regarding misdemeanor domestic violence in the not too distant past. Implementing just this portion of the law would have been virtually impossible if not for the already existing bureacracy. Now Shumer wants to add a prohibition for anybody involuntarily referred to counseling because they might be dangerous. It'll be a cinch to add it to the form because of the existing infringements.