The Scarlet License

Kathy Jackson of Cornered Cat fame, in the comments, floated an idea that I think merits some discussion:

Try this: they want to keep criminals and prohibited people from having guns.

We want to be sure that good people can always get guns without bureaucratic delays or mistaken denials.

The only way to meet both these demands is to refuse universal background checks while keeping a closer eye on prohibited people.

I suggest adding a prohibited stamp to the driver’s license of anyone who cannot legally buy or own a firearm. The seller should always check the buyer’s ID when they sell a gun. If the prohibited stamp isn’t there, they’re good to go. Jot down the date and the DL number, and you have your proof of a background check — without bureaucratic nonsense and with no possibility of registration.

No registration required. No bureaucratic bottlenecks.

The big problem you’re going to have with something like this is implementation. The federal government doesn’t control drivers’ licenses, the states do. What’s more, as the Supreme Court has stated in Printz v. United States and more recently in NFIB v. Sebelius, the federal government can neither commandeer state officials, nor can it coerce states. The only policy option that federal government has is enticement. So in order for this to work, it would require the cooperation of all 50 states. You likely can’t threaten highway or other funds if the states do not cooperate, given the ruling in NFIB. The only federal policy option would be federal licensing, but let us agree to not even go there.

Currently you have to produce some kind of state-issued identification to purchase a firearm at retail, and most private sellers will ask as well (to insure you live in the state). So if such a system were be put in place, and all paperwork and NICS checks eliminated, it would be a better option than the status quo. However, I do not believe the gun control advocates will go for this, because background checks are how the issue is sold. Background checks sound like a great thing to a lot of Americans, and it polls well. The primary purpose of banning private transfers is to implement a universal registration scheme through the 4473. Registration has never polled as well.

44 thoughts on “The Scarlet License”

  1. America has a federal picture ID – the passport. No 50-state buy-in required.

    1. If, as I understand this proposal, the idea is to present a form of ID as a replacement for background checks, what your suggesting would be that you can’t buy a firearm retail unless you hold a passport. I think having a passport is a good idea. I don’t think it should be a requirement for gun ownership.

  2. ATF can simply issue 30 day purchase permits off the web and by phone to buyers for free or maybe $5 if you have to have it mailed. Seller keeps a copy that he compared to DL/ID.


  3. I first heard this back in the nineties and thought it was a good idea then. I’ll let the legal experts around here figure out how to have it fly with the courts and be required for all states. By essentially requiring every adult with a driver’s license to undergo a background check it certainly will be fun to find out who among our anti-gun celebrities and politicians turns out to be a prohibited person. And if they refuse to show their license we can just assume they are prohibited. It will also be fun in those states where ID is required to vote. Since our side is expected to offer something, this just might be the thing to offer.

  4. How is “prohibited person” compatible with “shall not be infringed”?

    You can’t have both. Choose one or the other. All permits, checks, and permission slips are infringements.

    1. Felony convicts lose their rights. They can’t vote, either.

      I have no issue with people who have been committed to a mental facility through judicial process being denied the purchase of a firearm.

      1. There are way too many non-violent felonies which require no criminal intent.

        It can be a felony to possess the wrong kind of orchids, or to possess a lobster that is too small or improperly packed, or to bring back the wrong kind of souveneir from an overseas vacation. In NY it is a felony to possess a standard capacity magazine, and we know that NY ignores the FOPA. Driving within 1000′ of a school with an out of state CCW permit and a firearm is a felony, even if you’re on the highway with no intent to even enter the school premises. This is well before we get into misdemeanors which carry a possible jail term greater than two years, which include a huge variety of non-violent crimes which require no criminal intent.

        I am opposed to enforcing the laws on the books at this point, including prohibited person laws. I am opposed to anything that makes enforcement of such laws easier. The laws are rapidly multiplying, becoming impossible for an honest person to understand or comply with, and are increasingly unjust.

    2. The Constitution does not say you cannot lose your rights……only that you cannot do so without due process. You can even die, but only after due process which is spelled out in the Constitution.

    3. It is really comical how ready we are to surrender our own rights, in fear that some unworthy person may be able to share in them.

  5. I don’t see a problem – so long as a dealer can still refuse a sale to an individual who is not thus disqualified. We get 4-6 people per week coming into the shop in which I work, who are not legally disqualified, but to whom we would NEVER allow a gun to be sold.

  6. You forget the simple solution. Don’t let prohibited people out of jail. No background check needed. No registration required.

    1. They’d have to let all those who commited victimless crimes out in order to have the room. Sound like a win/win!

  7. “By essentially requiring every adult with a driver’s license to undergo a background check. . .”

    It seems to me that is a violation of the Fourth Amendment; a search without reasonable suspicion or warrant.

    If we present ourselves seeking a drivers license or firearms permit, is that reason for suspicion we may have been guilty of a crime in the past?

    1. A drivers license is not a right. And you have a background check to get a license already.

      1. “A drivers license is not a right.”

        So says The State.

        I say that functioning in the conventional manner within ones culture is a right. As is the right not to accept The State’s claim on being able to declare it a privilege.

        1. Well, actually you do have a right to drive without a license. What you don’t have, is a right to do it on state owned property.
          And don’t tell me how it’s public owned. So is the White House. Try sleeping in the Lincoln bedroom without permission and let’s see how well that works out. :-)

  8. I like Gene Hoffman’s idea of an ATF-issued Permit to Purchase. This would not be tied to any particular sale of any particular firearm, so no registration, yet the background check has been accomplished. Might need to have provisions for faxing the P2P, so if you just happened to drop into the gun store and just happened to see something you like, you can get the rigamarole accomplished Right Now.

    1. This is a terrible idea. Seriously. The ATF will keep records of all purchasers. They will make the permit process inconvenient, expensive, and time consuming. The ATF is incompetent at best and malicious at worst. We all know it will do nothing to stop criminals and will eventually be ratcheted down even tighter.


  9. This all sounds good except you are forgetting that criminals dont buy guns legally they steel them and also background checks do not show mental illness especially if that person has never been treated for anything. All these mass shootings were not done by convicted felons or your typical criminal, they were done by mentally unstable cooks that everyone outside of the family said they would never have guessed…how do you stop that?

    1. You don’t.

      What this type of background check does is preempt the legal maneuvering of the antis. Incrementalism works. In fact, I don’t see why this could not be done state by state. You can’t buy with ID from out of state. And nothing is preventing the states from still using NICS. Just allow those with the “clear” ID to purchase sans NICS. What we need to be working towards is getting rid of the paperwork altogether.

      Also, in regards to the felons…if they are too dangerous to be around guns…why are they out of jail? Work toward integrating those that have paid their dues back into life. Because if a felon DOES want to get a gun…he’s going to get one. If this is one less need for gov’t infringement..I think its worth it.

      1. So should we agree to 15 round mag limits to preempt the antis?

        No, if we all know the law will be ineffective, if it has never been demonstrated in any place, and if it is contrary to the spirit and intent of the Bill of Rights in general, we should NOT propose or support it.

        The antis think you are a criminal, and most will not mind seeing you jailed or killed. They will not be “pre-empted” until you are fired from your job, a SWAT team kills your dog, terrorizes your children, and throws you in prison for life, if they don’t just kill your outright in the raid. Many of them are emotionally driven with no ability to reason or deal with facts. You cannot compromise or pre-empt such individuals. If you don’t believe me, go argue with Joan Peterson for awhile.

        You cannot play on their turf by trying to negotiate about 10 rounds vs. 15 rounds, or what form the oppressive useless background checks take. It is like the parable (likely apocryphal but still relevant):

        Churchill: “Madam, would you sleep with me for five million pounds?” Socialite: “My goodness, Mr. Churchill… Well, I suppose… we would have to discuss terms, of course… ”
        Churchill: “Would you sleep with me for five pounds?”
        Socialite: “Mr. Churchill, what kind of woman do you think I am?!” Churchill: “Madam, we’ve already established that. Now we are haggling about the price”

        The only answer is No.

  10. “Gene Hoffman’s idea of an ATF-issued Permit to Purchase. . .”

    What was it Malcolm X said about setting the wolf to watch the fox?

  11. Just had a thought…..

    If, technically, the 2nd forbids ANY fed’l regulation (I know, but I can dream.) then how is the fed allowed to force an need for a FFL?

    1. How the hell does the state get away with forcing us to have a permission slip to carry within city limits of Philly? How is that not questioning our right?

      If a clear, strongly worded prohibition against even questioning our right to bear arms is ignored, and we do nothing, of course the statists continue to chip away our our rights. If against state law, the state police keep a registry, which our courts have twisted to be not a registry, and we do nothing, we don’t deserve to maintain our rights.

      Chip,chip, chip, chip, chip. The hunters don’t care because their deer rifle and shotguns are safe. Many of our fellow citizens don’t care because they are blissfully unaware and kept under control by and endless flood of mind numbing media. When you care more about who wins American Idol than you do about maintaining your liberty…

      Our basic liberties have eroded to the point that I’m unsure of what action we, those that value liberty, can take to make a difference. Our government doesn’t fear us in the least and that is the problem. Perhaps a few hundred thousand protesters with an AR slings across their back marching on the Capitol… Sure, black rifles are verboten within our Capitol, let them enforce it and attempt to lock up a hundred thousand protesters.

  12. “. . .how is the fed allowed to force an need for a FFL?”

    Simple. The people tolerate it. Same reason as every other abrogation of human rights.

    1. It is pretty apparent that the average gun owner, as represented by those in this discussion, has a faulty understanding of just what a right actually is. As long as gun owners worship the state rights are irrelevant.

  13. Perhaps I didn’t make my point clearly. I don’t think the Democrats or the anti’s (but aren’t they the same thing right now) would go for the Scarlet license, but at least pro-gunners will have offered something which to ordinary people seems reasonable. Democrats would never go for this largely because too many of their constituents would be exposed as convicted felons who are not only prohibited from possessing firearms but also from voting.

    Of course what I really desire is that nothing be done because universal background checks are really a registration in disguise.

  14. There should be a no tolerance policy for any gun crime. If you have a gun and commit a crime it is mandatory jail. No exceptions..The police know many of the gang members and who has guns. They leave them alone out of fear and corruption. The answer is more honest police and total crackdown on the gangs. No gun sales to any person with a mental disorder of any kind. Stop violent movies and video games. Teach tolerance and manners in the schools. It has taken us years of brainwashing with the violent movies, TV programming and video games and it will take years to correct. This is my opinion and no need to deny me that.

    1. You’re welcome to your opinion, but forbidding guns from anyone who has a mental disorder of any kind is highly problematic: it will result in many people who have mild disorders from seeking treatment. Even the majority of schizophrenics never get so violent, that they go and kill people.

      As for stopping violent games and movies, who defines violence? Do you ban “Shindler’s List” and “the Killing Fields”? I, for one, haven’t seen these movies (because I somewhat try to avoid violence) but sometimes even Disney cartoons can be surprisingly violent.

  15. As long as we’re wishing for things that will never possibly happen…

    The current voter registration model is a shambles. I could, without a great deal of difficulty, register to vote in PA, MD, DE and NJ, and without even getting a particularly early start could have cast 4 votes for president before lunch.

    How about if you want to vote in a national election (for president, US senator or US representative) you have to register to vote on the federal level. If the feds have a reason that you should be prohibited from owning a firearm, they can indicate as much on your federal voter registration card. If you want to buy a gun, hand the guy at the gun shop your voter registration card.

    Of course the gun grabbers would never go for it, because the gun grabbers tend to be the same people who think voter fraud should be ignored.

  16. Could just require such a stamp on licenses in order to be allowed to drive on federal interstate highway.

    1. Those highways aren’t federal property, they are controlled by the state. The federal government just pays for them. Under NFIB, it would seem likely that threatening the withdraw of those funds for something that has nothing to do with highways would be an unconstitutional coercion.

  17. This may be crazy talk, but how about the states get an option, either they put something on the license or allow private companies ( foreign and domestic ) to run the background checks and issue credentials for a fee ( an let the market set the price ), and allow the CHL to act as a background check. My reasoning ( which may be faulty ) is that it would be difficult to get the datebase from an off shore company. There are plenty of companies that run background checks for employers, this would just give then another line of business. It would be similar to the FOID, but you would only need one to transfer a firearm and not use an FFL. FFL transactions would still use NICS ( so maybe the price competition would bring down what FFLs charge for doing a transfer ). The main benefit of this the pro gun side gets to say ” this addresses the issue without violating anyone’s rights “. There would have to be some kind of exception for economic hardship ( so low income citizens would not be priced out of their 2nd amendment rights ).

  18. I want to point out that the heart of this idea would not be to run checks on gun owners or would-be gun owners. It would simply stamp the licenses of people who lost their rights in court.

    Like everyone else here, I strongly disapprove of the notion that we must beg the State for permission to exercise such a fundamental human right as the right to self defense. The goal here is to prevent a bureaucratic bottleneck through which our rights must squeeze. If it moves us closer toward the goal of punishing only the people who have earned punishment while leaving the rest alone, that’s a good thing.

    My end game would be dismantling NICS (unneeded, under this schema) and prohibiting any additional bureaucratic botheration to exercise the right.

  19. A reasonable compromise would be to put the prohibited/allowed status on voter ID cards. Voter ID cards are already accepted as government-issued ID by FFLs. If fraud is a problem, address it by improving voter ID (e.g. photos, not mailing them, lamination).

    I heard Obama tell a heart-wrenching story about a 90-year old woman who couldn’t buy a gun because she didn’t have photo ID, and how the heartless GOP wanted to deny her civil rights (it was either buy a gun or vote, can’t remember).

    1. No, that’s the exact opposite of what I’m saying. The LTCF tracks the good guys, gets issued to the good guys, creates a bottleneck through which the rights of the good guys must pass. The default setting is, “You can’t, unless you have this thing.”

      The scarlet license (love that phrase, Sebastian!) does the opposite. It tracks the bad guys, gets issued to bad guys, creates a bottleneck through which the bad guys cannot legally pass. The default setting is, “You can, unless this thing shows you have committed a crime for which losing gun rights is part of the punishment.”

  20. Almost perfect, gang, except for a flaw so massive that it’s amazing to me that none of you commented on it.

    DLs are typically every four years, I’m guessing. Passports are good for 10 years.

    Questions for the class – are there any criminals who don’t have a felony conviction at 17, or 21, that have one or more by the time they’re 21, or 25? How about passports? Any Americans without felonies at 19, who have them at 29?

    You kids… Really. If you want to seat at the table, you need to consider getting past the notion that we’re having a conversation about LOOSENING gun restrictions. :)

    1. Well, according to Kathy, you get issued a scarlet license as soon as you’re convicted of something that makes you a prohibited person. So presumably that person would be issued the license upon conviction, indictment, or adjudication.

      1. Right.

        Here in WA (and presumably in other states too), if you do something that gets your driver’s license yanked, they don’t take the card away from you. They just punch it so anyone who looks at it knows it’s invalid for driving. It remains a valid form of ID.

        I’m saying we should do something similar with firearms rights. If a criminal’s gun rights get taken away in court, the criminal immediately hands over the DL so the court can punch it. The DL remains valid for driving, but marks the criminal as denied for gun purchases.

        Punish the criminals, and only the criminals, without tracking purchases or impeding the human rights of people who haven’t violated the law.

  21. Lets get rid of background checks period. I don’t know why we are agreeing to a greater restriction. It is important to have no paper purchase option for guns so the government can not who has a gun .

  22. Since part of our rap (that is true) is that “criminals will get guns anyway,” why is everyone so hung up on, that they not get them “legally?” Is it so we can feel good about our upstanding-citizen selves? Will God be smiling on our Legal guns, while jamming and corroding their unclean guns?

    It all seems a rather metaphysical debate to me.

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