Laws and Execution

One of my oldest and closest friends is a list maker. He keeps track of various things in his life (e.g. collections, states he’s visited, concerts he’s seen) by writing and maintaining various lists. I have a bit of that bug myself, and it’s been greatly facilitated by technology (we both worship at the spreadsheet altar and cheekily consider Excel to be one of the greatest achievements of modern humanity). If the time and effort that list makers devote to tracking such information seems alien to you, don’t try and figure it out. As my friend and I have told others more times than we can count, “if we have to explain it, you’ll never understand.”

My friend’s list-making proclivity is orders of magnitude beyond mine. He combines it with a desire for “completeness” and a fidelity to accuracy that I do understand but don’t have the wherewithal to emulate. While we both tally the number of states we’ve set foot in, he’s gone on hours-long solo drives in order to add to his tally. Once, when in San Diego for work, he drove to the Arizona border, picked up a beverage and took a bathroom break, and drove back. A five hour round trip, just to tally a state he figured he’d not have a better chance at any time soon.

We’ve had long discussions about what “counts” for list inclusion. Despite joking that “everything counts,” there must be, in fact, some rules. Flying over a state in an airplane does not count, but landing at an airport in that state does, even if you never get out of the plane.

His toughest list, in my opinion, is his list of movies watched. Yes, indeed, he has a list of every movie he’s ever seen. If you’re a list maker, your mind is likely already reeling with the implications. If you’re not, well, you’ll never understand.

Here’s the problem: Watching a movie is not a binary yes/no action. What happens if you’re flipping channels and find a movie you haven’t seen after it has started? What if you don’t like the movie? How much of it do you have to watch for it to “count?”

My friend has put together a set of rules that answer these and other questions. I believe he gives himself a 5 minute grace period at the beginning, and once he has watched more than a few minutes of a movie, he must, either then or later, finish watching it. In fact, he’s had situations where, at family gatherings back in the days of video stores, other family members decided they didn’t like something they had rented and switched to a different movie half-way through. He’d typically stay up late to finish watching that first movie after everyone else had gone to bed. That’s some next-level shit.

The takeaway from all this (other than snarky jokes about my friend’s mental state) is that laws require rules that govern their execution. Keep this in mind as I discuss the real topic of this essay: the implications of the latest proposed infringement of our Second Amendment rights.

Today someone who wishes to buy a firearm from a licensed (FFL) dealer must (at a minimum) complete some paperwork and pass an instant background check. The paperwork, Form 4473, includes certain attestations and is kept on file by the dealer. The record of the background check (assuming it came back clear) must by law be purged from government records within 24 hours. This is in keeping with the premise and promise that the government shall not maintain a national registry of gun ownership. “Universal registration” is, legitimately, one of the great fears of gun rights advocates, because throughout history it has been followed by confiscation, and politicians high, low, left and right have long insisted and continue to insist that they “don’t want to take away your guns.” In fact, the federal government is prohibited by law from keeping a registry.

If we have the law’s protection against registries, one might wonder, why are gun owners still wary?

Consider one of the current battle cries of the anti-gun crusaders: universal background checks. Under current law, one must go through a background check to buy a gun from a licensed dealer. However, no background check is mandated for private sales. If I want to sell my deer rifle to a hunting buddy because I just got a new one, I can do that. There are other laws in place that govern such transactions: You cannot sell your firearm to the resident of another state unless you go through a FFL. A convicted felon may not possess (or, therefore, buy) a firearm, and you are debarred from selling to him knowing that he was such. And so forth.

The “universal background check” (UBC) is being sold as a common-sense measure to keep guns out of the hands of people who aren’t legally allowed to possess them by putting private transfers under government scrutiny. It’s typically conflated with something anti-gun people call the “gun show loophole,” a term that, in my experience, most people grossly misunderstand. Contrary to what it sounds like, the “gun show loophole” is not an exception to background checks, i.e. it’s falsely presumed to mean that people can buy guns at gun shows without background checks. In fact, any licensed dealer (and every gun show I’ve ever been to only has licensed dealers selling) must do a background check for every sale, including at gun shows. Furthermore, every gun show I’ve been to specifically prohibits private sales (they don’t want the liability, for one thing). The “loophole” is the straw man argument that Jimmy and Joey can cross paths at a gun show, and Jimmy can sell his gun to Joey. No gun show is needed for such a transaction to happen, and as I noted, there are other laws that restrict such transactions.

But, isn’t adding such a requirement “reasonable?” After all, a background check only takes a few minutes.

Here’s the problem. How do you make it work? A licensed dealer has to account for every firearm that passes through his hands, but the laws prohibiting registration means that the government doesn’t know what firearms a private citizen owns. Lets say that the UBC does get enacted, and Jimmy does sell that hunting rifle to Joey. How would the government know? Does it simply trust that Jimmy ran a background check on Joey? After all, the government is prohibited from keeping a list of firearm owners and the record of the background check must be expunged within 24 hours.

The answer is, as I noted earlier, is that laws require rules that govern their execution. A UBC law would need to include language that authorizes the BATFE or the FBI or whatever agency is tasked with implementing it to create rules. For the UBC’s intent to be carried out, there would have to be some sort of verification system to manage private transactions, and that system would have to start with knowing where the guns are. In other words, a functioning UBC must start with a national firearms registry. In other words, they’d have to make a list.

Polls generally show that the populace strongly favors universal background checks but strongly opposes universal registration. The problem is, as Sinatra crooned, “you can’t have one without the other.” Anyone who supports the former but opposes the latter either hasn’t thought it through or is lying, and in the case of anti-gun politicians, I tend to think “liar.”

Lest anyone think that universal registration is not a precursor to confiscation, history tells us otherwise. The Weimar Republic imposed universal registration, as did the Soviet Union. In both cases, the lists were eventually used to round up all the guns in private hands, with disastrous results for the populace. And, in case you think I’ve merely gone Godwin to fear-monger a point, the UK and Australia engaged in universal registration followed by confiscation.

There currently exists a framework of laws and court rulings that protect our gun rights. Properly applied, this framework should protect us from a backdoor approach to universal registration which the cynic in me believes is behind the push for UBC. Despite their protestations to the contrary, many of the anti-gun advocates of our time see the ultimate goal to be the disarming of America. They want handguns banned, all semi-automatic firearms banned, and hunting and target-shooting rifles and shotguns kept in local police lockers for use only during hunting season. THAT is the agenda. And, while the courts might be expected to use the existing framework to defend our gun rights (e.g. a registry made under the UBC would violate the existing prohibition), if the courts are sufficiently loaded with anti-gun judges, they may find ways to ignore the body of law and precedent in favor of their biases.

If you are among those who wants America disarmed, this essay’s not for you. You’re either contemptible or naively foolish. I’ll give you what-for another time. This essay’s for the people who are leery of the government disarming everyone, or who don’t believe confiscation is the end-goal, but nevertheless support universal background checks. To you, I say, take a moment and think about how such legislation would work. Think about the rules that would have to be written to implement such legislation. Think about the fatal dissonance in supporting UBC but opposing universal registration. And, if you come to conclude that you can’t have one without the other, realize that this “reasonable” infringement on our rights will have catastrophic consequences on our liberty.