Preemptive Surrender is Never a Good Strategy

I really wish Alan Gottlieb would stop engaging in preemptive surrender on the background check issue:

From Gottlieb’s perspective, the Manchin-Toomey Amendment — which contained several pro-gun measures, including an outright ban on a national gun registry and background check exemptions for friends, neighbors, family members — was certainly the lesser of two evils, i.e. a compromised bill sponsored by Sens. Joe Manchin (D-WV) and Pat Toomey (R-PA), both A-rated NRA members, versus one written solely by the Schumer, Feinstein and other staunch pro-gun control supporters.

No it was not. The problem with Manchin-Toomey was several fold. First, it wasn’t very clear when you would or would not be subject to the background check requirements. Second, none of the measures, including the ban on the national registry, were worth spit. Who’s going to enforce it? Is Eric Holder going to prosecute himself for violating the prohibition? Some of the things offered up to us, like the FOPA travel enhancement would have actually stripped the FOPA travel provision entirely. Manchin-Toomey was a farce of a deal, which is why it needed to be killed.

Every time I think it’s time to forgive SAF, because I really do believe they are doing good work for the issue in the Courts, Alan Gottlieb opens his mouth again about Manchin-Toomey and I get pissed off all over again. This kind of thing doesn’t help, and it’s going to give the other side cover to shove something down our throats. Why do we want to bring this issue up again anyway? We won, they lost. If the momentum suddenly shifts, then we can assess the situation at the time. After all, there looked to me like there was a “break glass” provision in all this mess that no one paid attention to. So I think some people, at least, were thinking ahead. By offering to preemptively concede ground, the next time we’re in a tight spot, they are going to want ground we’re not willing to concede. It only puts us in a worse negotiation position.

30 thoughts on “Preemptive Surrender is Never a Good Strategy”

  1. Alan makes me nervous as well. I was considering re-supporting them via monthly check, based Joe Hoffman’s recommendation, but now Alan reopens the wound….

    Thanks for the update, Sebastian.

  2. Reminds me of a dear friend that would try to explain our side of the argument in discussions with the boss.

    I had to finally tell him, “Please don’t help.”

  3. Why do they keep pushing this?

    Okay, even *if* it were the “lesser of two evils” we ended up with nothing passed at all.

    Is Gottlieb really arguing that TM would have been *better* than the status quo?

    Because it’s really starting to sound that way…

  4. Manchin-Toomey is crap. But I think a case could be made to concede UBCs if it could be done in the least odious way possible (web portal or whatever it might be). Not that I’m pushing that POV, but I just think a decent argument could be made.

    If you take away the anti talking points about “the gun show loophole” and “40% of guns…” etc, they have nothing. That’s their only even somewhat attainable goal. Anything else is a pipe dream. It would also preempt any possible future BGC legislation that would be even more offensive.

    Of course I also understand the philosophy that we shouldn’t concede a damn thing. This is a perpetual battle, and every inch we give up is one we’ll never get back. And its one step closer to their ultimate goal.

      1. That’s exactly right – when the wolf is at your door. The thing is, Alan Gottlieb is right that we should write the bill. We should not push it, or even introduce it though. We should have it ready for a time when a worse bill looks certain to pass. Manchin-Toomey couldn’t clear the Senate, and stood no chance in the House. Should the tides turn at some point in the future, we should have a good alternative ready.

        The problem with Manchin-Toomey wasn’t that it was a bad idea for a compromise. In exchange for some tiny concession, we were asking for a lot in return. The problem is that the bill was poorly crafted, positively vague, and could have unintentionally made things really bad. If we had a really well-written bill in our back pocket that did what Gottlieb was trying to do, that would be a good safety net. But right now, nobody in congress interested in gun control… why should we push for it? Of course, if we had a GOOD bill at the time, it may have actually gained traction and passed – then we’d have universal background checks.

        This is another one of those good thought exercises: What would you ask for in exchange for universal background checks? Also, part of that question must be: What is your definition of a universal background check?

        For me, the only way I’d accept universal background checks as a part of an otherwise pro-gun package is if there are extremely strong safeguards against a registration – including teeth. I.e. anyone caught compiling or conspiring to compile even a partial registration commits a felony, and also assumes civil liability, so that those affected by the registry could bring suit individually or as a class. The problem is that there must be a way to enforce those safeguards against a corrupt justice department. Only congress can do that, which doesn’t give me much optimism it could be done.

        As for the definition of universal background check, it would necessarily have to be something that did not encumber the exercise of second amendment rights – i.e. transfers must be simple, free, immediately approved, and able to be done from anywhere. In addition, there must not be any legal liability that the seller must take on in the process of the sale.

        1. “This is another one of those good thought exercises: What would you ask for in exchange for universal background checks?”

          *Complete elimination of the 1934 NFA, along with all import provisions in the 1968 GCA, and the Hughes amendment to the 1986 FOPA.

          *Complete destruction of all registration information from above.

          *Complete elimination of all executive import bans on firearms/ammunition.

          *Complete elimination of every reference to “sporting purpose” from all statutes and regulations.

          *Strengthen the FOPA transport regulations.

          *Mandate that all copies (paper and digital) of form 4473 be destroyed 20 years after the date of sale, regarless of their location (thus including all forms stored by the government in this mandate).

          “Also, part of that question must be: What is your definition of a universal background check?”

          Everyone must undergo a background check when they get a State ID or DL, and the status of that background check must be noted on the license. This must be done without additional cost to the applicant. Also, given that the check is performed for the ID, that also means that the ID should be good for the purchase of a firearm from a FFL without additional background check (just as a LTCF generally is).

          1. I like the ide aof using teh DL — but there should be a toll-free and/or website (publicly accessable) that a seller could punch in the ID info to verify that the person’s status hasn’t changed since teh license was issued.

            If a person was ordered to turn in their driver’s license for re-issue without the “good guy” icon on it when becoming a prohibited person, and he simply says, “I lost my wallet yesterday”, what are the cops going to do? What’s to stop him from taking his (void, but visually valid) DL to a dealer and buying a gun? Or would this idea require making loss or theft of a driver’s license a crime?

            thus, even a scheme as proposed needs a point of sale confirmation that the ID presented is actually valid. (Note, there is already a similar system in place to verify the current validity of an FFL. For the same reason.)

            Also, you’ve just required anyone who has a state issued ID to carry a visible marker on their ID as to whether or not they are cleared. There are many reasons why a person may be a “prohibited person” yet not necessarily be a “bad guy” — such as being involuntarily committed fourty years ago for a month. (We can argue over the idea that anyone too dangerous to be trusted with a gun is too dnagerous to be allowed to walk around free, thus making any background check system moot. But, the reality is we do have people walking around freely who are legally prohibited to possess guns.)

            But if the ID has a unique ID #, you don’t even need the “Good Guy” icon, if there is a simple and free way for any member of the public to check (which you already, for the reasons I stated, need to do to confirm validity). This also means that changing a person’s status to “prohibited” in such a manner that works with reality and doesn’t compromise the system can be instantaneous and doesn’t rely on confiscating IDs from people. It also means that temporary prohibitions, such as being under indictment, can be easily handled — just update the database as needed.

            The trick is to make the validity check against a black list of prohibited persons, not a white list of cleared folks. The result should say nothing more than “OK”, “Prohibited”, or “System down – try again later”. The ONLY data the system should retain for a check attempt is the identity of the checked person if the system indicates “Prohibited”. (So the cops can follow up and ask Joe Methmouth why a background check was run on him, apparantly to buy a gun, while he is on parole.)

            Also, from a pro-liberty standpoint, there needs to be a blanket authorization to allow sale regardless of getting a check back after a set period of time – 24, 48, or 72 hours. The logging of down times must be legally mandated, with penalties. (This prevents the backdoor gun ban technique of “letting the system fail”, thus slowing or stopping gun purchases.)

            If there is a reasonable fear that people will claim that the system was down when they checked, you can simply write an affirmative defence into the prohibition against selling without a check, if the person can document the ID #’s arttempted and exact times and methods they used to make a reasonable attempt to check (say, 3 attempts, no closer than 12 hours apart, over a 48 or 72 hour period – the exact times involved will have some relationship to the minimum time they would have to wait before selling without a successful check) — if the system was actually down at those times (+/-, say, 5 minutes – not everyone’s clock is accurate) or if the person was qualified, they cannot be prosecuted for selling to a prohibited person or selling without a check.

            Since “prohibited persons” closely match to “people we don’t trust”, such a system would also serve as a handy (albeit shallow) background check for other things — like hiring babysitters or store tellers.

      2. At that point it would probably be too late. Like how Coburn’s proposal was ignored in favor of Manchin-Toomey. A decent bill isn’t going to get anywhere in a situation where the antis have leverage.

  5. I use to send money to the SAF, and in fact they do good work; we would not have Heller had it not been for them.

    I stopped giving them $$$ after the Manchin-Toomey crap.

    At first I thought he was inserting poison pills into these bills to insure they would never pass, but I no longer believe that.

    I also was considering resuming my contributions, however as long as Gottlieb continues his antics they don’t get another dime.

    1. Heller was funded by Robert Levy (Cato), at its outset.

      Not knocking SAF, but the history on these things need to be more carefully considered.

  6. As soon as I became a SAF life member, I noticed that I was getting spammed with right-wing junk mail; really kooky fringe stuff. They also started calling me about once a month asking for donations. I definitely regret the decision and wish I’d given the money to the NRA instead (already a life NRA member).

  7. Very dated,but still valid in my opinion.

    Gottlieb has exploited too many issues to be sincere about any of them, in my opinion.

    Remember when he was stumping for “safe storage” laws in the mainstream media, while capitalizing on his status as an RKBA spokesman?

  8. I see the logic behind strategizing for a future with UBCs, because it’s an idea that consistently commands strong public support, and absent any sign of that changing, there’s a chance that it will one day become law whether we like it or not.

    Still, if bringing in UBCs without a registry is going to be their long term game plan, they need to actually deliver the goods. They need to address all the serious problems that this blog, Dave Kopel and others identified with the Manchin-Toomey bill and come up with a better plan. Doubling down on a seriously flawed bill is not helping anyone.

    1. “Still, if bringing in UBCs without a registry is going to be their long term game plan”

      Their long term game plan *is* a registry. You can’t have universal background checks without a registry. You’d need a verifiable way of showing that THIS person bought THIS gun after passing a background check. How do you do that, but to record that a background check was performed for THIS person buying THIS gun? The only way to do it is by storing that info in a database (ie, a registry).

      If Joe Public produces a piece of paper or whatever saying he passed the background check when he bought the gun, then that paper or whatever needs to be able to be verified to show that it goes with Joe Public and that particular gun. Otherwise, what’s to stop everyone from just photoshopping their details into a valid background check slip? Or using one form to cover 1000 guns that were bought via private sale? If they would have allowed such a weak system to pass, then it would have been only so they could “fix” it later by creating a full blown registry, now that people are OK with a universal background check and all. Why not just fix it to make it work, right?

      Their goal is to have a universal gun registry. That Alan Gottlieb keeps pushing for it is a disgrace. I think he just wanted to feel like he was a part of the action because he got to sit at the big boys table, and now he’s too proud or whatever to admit what a colossal mistake it was. Any good he’s done for gun rights, he seems determined to undo. Any goodwill he’s created for himself, he seems determined to undo as well. Thanks for helping, but he needs to stop and go away now.

      1. You can’t have universal background checks without a registry. You’d need a verifiable way of showing that THIS person bought THIS gun after passing a background check.

        That’s a registry, yes, linking particular firearms to particular people.

        If we’re really about checking backgrounds, all that’s really needed is a way of verifying that a particular person was deemed eligible to own a firearm on a particular date. The background check system doesn’t need to know what firearm(s) are under transfer.

        1. “The background check system doesn’t need to know what firearm(s) are under transfer.”

          You’re talking about a licensing/permitting scheme in order to buy a gun. Note that this isn’t a universal background check. FWIW, such things already exist in a variety of commie states. Even commie state gun owners aren’t exactly thrilled with them.

          The other problem with what you describe is this:

          Bob is a law-abiding gun owner who has 10 guns. A stranger offers to sell him 10 more guns out of the trunk of a car one night. Bob buys those guns, cash only, no questions asked, no “universal background check”.

          How would .gov determine whether or not a background check was performed for those guns? Remember, gun sales now require a background check. Unless there’s a registry linking those specific guns to Bob, .gov has to rely on the Honor System. That is, until some helpful politician comes along and wants to “fix” the “broken” universal background check system and make it a proper registry. First comes registration, then comes confiscation.

          “If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them . . . Mr. and Mrs. America, turn ’em all in, I would have done it. I could not do that. The votes weren’t here.”
          – Senator Dianne Feinstein (D)

      2. Mike, there IS a way to have universal background checks without a registry, while preserving teh ability to prosecute those who either knowingly sell to prohibited persons or who intentionally do not run checks.

        See my comment above on May 6, 2014 at 6:23 pm.

        The trick is:

        A. Publicly accessible system to enter the unique ID# of a government issued ID to receive a result of “OK”, “Prohibited”, or “System Down”. The system checks against a “black list” of prohibted persons, not a “white list” of people who have been cleared.

        B. Government logs only “Prohibited” check results and the times the system is actually down. With criminal penalties for government officials knowingly or willfully violating the logging requirements (including logging “OK” check results at all, other than aggregate numbers for stats purposes). (If you are “Prohibited”, there is a reasonable government interest in the cops following up an attempt to run your background check as if you were buying a gun.)

        C. If the seller gets a “System Down” response, he writes down the time, and has to try back a certain number of times over a specified period in an attempt to get a response. If he has tried the requisite number of times over the required wait period, and the system is still down, his record of times attempted is an affirmative but absolute defence against trying to skip the background check (if the system was actually unavailable at those times), and an affirmative defence to knowingly or willfully selling to a prohibited person (absent some other proof he knew better and just waited until a massive power outage to “run the checks” knowing the system or the phone lines would be down).

        No need to record anything by either the seller or the government if the check comes back “OK”.

        No need to record what gun, or even what kind of gun – other than “under 21” (easily confirmed by looking at the birthdate on the ID presented. . . and yes, I realize that under federal law, it is only FFL sales of guns other than Title 1 rifles and shotguns that are illegal under 21), if you’re prohibited for one type of gun, you’re prohibited for ALL guns.

        No need to worry that the government will simply have the system “break” from 7am to midnight every single day.

        No need to provide a government receipt that you actually checked when the system was down (a scrap of paper with the times you tried to call is sufficient).

        Prosecution of someone for breaking the background check law is simple:

        1. Was a “Prohibited” check result returned? If yes, hook ’em up for knowingly and willfully selling to a prohibited person.

        2. If not, was the system (including the commo links to and from) up at any of the times they claimed they tried to run a check? If yes, then hook ’em up for knowingly and willfully selling without a background check.

        3. If the system was down when they said they checked, did they check enough times, at the proper intervals, before transferring the gun? If no, then hook ’em up for knowingly and willfully selling without a background check.

  9. IIRC, it only takes House and Senate to pass a constitutional amendment, then 2/3 or 3/4 of the states. The President has no veto.

    I wonder what the chances are of passing a Second Amendment Clarification Amendment which would invalidate the worst of the gun control laws throughout the country. I personally doubt any such proposal would go as far as I want, but I’m certain there’d be enough states signing up to get rid of the worst (ie mag and AW bans, may issue).

    And in some ways such an amendment would be worse than nothing, because it would probably lock in the NFA restrictions and make it impossible to get anything better out of the Supreme Court.

    But it would be an interesting nuclear option if the Supremes ever did allow may issue and the various bans.

  10. I used to give money to SAF. Now it goes to ILA.

    Every time SAF sends me a “survey” asking for money I send it back with a note to STOP TALKING ABOUT UBCs, and no money.

    Apparently they don’t get the message.

  11. I think background checks are useless. As if the bad guy will not steal, fence, or get his/her significant other to buy a weapon.

    That said, why not the Coburn Background Check?
    I want to buy a gun, I submit my name and data. I get a Background check certificate good for 30 or 90 days. I can buy or not buy as many guns as I wish, from whomever I wish. I give them the money and a copy of the certificate and fill out a 4473 for the FFL or Bill of Sale for a private buyer. Done, no muss, no fuss, no government records.

    1. How about this one,

      I want to buy a gun, I hand the guy behind the counter my money and he hands me the gun.

      Done no muss, no fuss, no government records

    2. What would be even better is that by getting said certificate, you eliminate the need to do a 4473 at all. You already have government approval, the dealer knows you’re qualified since you have the certificate (which as a precursor to obtain it mentions the law against straw purchases), end of story.

      Then, just a standard bill of sale can be utilized so the owner and dealer have it for their records in case you need to prove ownership, no different than a receipt, but it doesn’t need to be sent in to the ATF. That way it’s nearly impossible for a registry to be built.

      Of course it’s all wishful thinking.

  12. The worst problem with M-T and similar background check proposals is that it covers “transfers” not sales. The way the antis wrote it it would make illegal all kinds of normal activity in the firearms community. Talking about it as regulating sales, as fraught as that is, doesn’t begin to capture the evil of the proposal.

  13. The trouble with dealing with senate democrats, is that they have all been there forever, and they and their staffs know how to sound reasonable and sincere, while planning to roll you. They will promise a border fence, but they don’t tell you that it will only be three feet tall. They will promise you no registration, but they will never throw out any data that they process, creating a searchable archive of all transactions. They will fool you and shaft you, because that is what they do.

    Look at every major piece of legislation that has “bi-partisan” sponsorship, and you will see how McCain got fooled by Feingold, and how the sincere, enthusiastic R’s get rolled every time. The ones that are less sincere, and more cynical, go along with it because they think it will help them run for President, but it never does.

    We can’t win, we can’t break even, so the best strategy is not to play. Kind of makes me think of “War Games.”

  14. Maybe Gottlieb has a brain tumor which is causing this out of character behavior?

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