Yesterday I talked a bit about Richard Feldman’s LA Times editorial where he tries to bring he issue forward in terms we supposedly can all agree on. As I mentioned, we can all agree that we need to go after “the negligent misuse of guns”, but that the devil is in the details. Feldman’s essential thesis is correct, but not very useful in terms of moving the debate forward. While I don’t believe Richard Feldman is quite the turncoat on this issue as some of the other folks he’s associated with over the years, I still question how dedicated he is to the proposition of the Second Amendment protecting a fundamental right. Once you begin thinking in those terms, it’s difficult to believe there’s some magical middle ground out there that we can all work towards. Let’s take a look at even a relatively uncontroversial issue — that of background checks.
Both sides in this issue grudgingly accepted them back in the early 90s. The NRA grudgingly threw out the idea of instant background checks to avoid the HCI preferred method of a waiting period. Handgun Control Inc. obviously grudgingly accepted the instant background checks because they wanted a waiting period. We ended up with a compromise, but no side was really happy with the result. But if you’re really committed to the idea of the Second Amendment as a fundamental liberty, is our current background check system constitutional?
The Brady response would be an unequivocal yes. They will draw on the language in Heller that says, “nothing in our opinion should be taken to cast doubt on longstanding […] laws imposing conditions and qualifications on the commercial sale of arms.” Of course, the Brady will assert that this means any condition and qualification on the commercial sale of arms is constitutional, no matter how onerous. Brady would no doubt point out that it has a trivial effect on the right to bear arms, and is just a means for the government to ensure that they do not fall into the wrong hands, and that, even under strict scrutiny, is a compelling government interest. I think the Bradys will have quite a good argument on this, and I suspect the vast majority of Americans, most of whom will not understand the fine detail, will reflexively support the position, since background checks are instant, right?
Well, for most people, they are instant. But for some people, they go into a manual review process, where the Brady Act’s waiting period kicks in. There’s also the issue of the system being down, which has been known to happen, which also causes the Brady waiting period to kick in. After three days, dealers are permitted to transfer the gun with a default-proceed, but in practice most dealers won’t do this. For most of us, this is an inconvenience, but let me lay out a scenario for you.
A woman finally decides she’s had enough, and leaves her abusive boyfriend. The boyfriend, unable to let go, starts issuing threats against the the woman. He shows up at her house a few times, makes harassing calls, and generally doesn’t seem to get the message. Frustrated, she goes to the police and gets a restraining order. Knowing this doesn’t provide any real protection, she decides to go out and buy a gun, just in case the boyfriend shows up at her house again. She goes to the gun store, picks out a reasonable handgun, goes through the 4473 process, but the Instant Check system is down. The Brady waiting period kicks in. The dealer tells her to come back in a few hours, but it’s getting toward the end of the day, and the store closes in a few hours. The woman decides to come back the next day. But that night her boyfriend shows up at the house with a gun and murders her.
For all intents and purposes, that woman’s Second Amendment right never existed, because she was forced to wait on her purchase by a government regulation. Whether the government infringed on it through a waiting period or an outright ban, she was just as denied her right. Brady will no doubt argue that kind of thing often doesn’t happen, which I’m sure will be very comforting to this woman’s family. They will also no doubt argue that a gun wouldn’t have protected her anyway.
But for a real Second Amendment supporter, which Richard Feldman claims to be, one should realize this isn’t an easy answer. If there’s a middle ground somewhere in here that we can all live with, I’d certainly like him to point it out.