The Public Safety and Second Amendment Rights Protection Act of 2013, as proposed by Republican senators Pat Toomey and Mark Kirk and Democrats Joe Manchin and Charles Schumer, deals partly in symbolism. It “reaffirms,” for instance, an existing ban on government firearms registries, and establishes Washington’s umpteenth blue-ribbon panel — the National Commission on Mass Violence — to “study the availability and nature of firearms, including the means of acquiring firearms, issues relating to mental health, and all positive and negative impacts of the availability and nature of firearms on incidents of mass violence.”
It also does some substantive tinkering around the edges of the existing federal gun-control regime. In various ways it pokes and prods the states to provide more criminal records to the National Instant Criminal Background Check System, or NICS, and to better capture serious mental illness in those records.
But the most significant expansion of federal gun-control powers in the bill is also the least likely to work. We remain fans of Toomey, but on the issue of expanded background checks he is in the wrong.
Currently, background checks are required only when guns are purchased from federally licensed dealers. But many gun sales occur outside this context. The Toomey/Manchin bill would require background checks to be conducted before a sale at a “gun show” or “pursuant to an advertisement, posting, display or other listing on the Internet or in a publication.” Critically, the bill does not require background checks for exchanges between family members, friends, and neighbors, or, it appears, for any sale through the grapevine (although the language is indeterminate on the question of sales advertised on the proverbial church bulletin board).
The provision would create new hurdles for law-abiding gun owners, requiring two private parties to seek out — and pay — a federally licensed intermediary before they could carry out a simple transaction. Worse, the vagueness of the legislative language would make it difficult for private sellers to determine if a given sale requires a check. The new regime would make even the most innocently intentioned of firearms transfers significantly more risky for the average American.
In addition to being difficult to comply with, the provision is likely to prove difficult to enforce. Because it would exclude a broad class of transfers, unscrupulous sellers would quickly establish methods of advertising their wares that hid in the lacunae of the legislative language, and adequate enforcement of the law would require police and prosecutors to devote considerable resources to the parsing of close cases and the ferreting out of intent. This mess would likely lead to the reappraisal of today’s legitimate and noncontroversial exclusions as tomorrow’s unacceptable loopholes. Indeed, the very same “gun-show loophole” Toomey/Manchin attempts to close was once a perfectly respectable member of the class of private sales the bill makes a show of protecting.
As a condition of its (by all accounts still limited) Republican support, Toomey/Manchin attempts a few conciliatory gestures for gun owners. It exempts individuals who already have valid concealed-carry permits from background checks. It allows the interstate sale of handguns under certain parameters. And, as previously mentioned, it reaffirms the illegality of a federal firearms registry, creating stiff penalties — 15 years in prison — for any government official who attempts to create one.
The exemptions for concealed carriers and the end of the prohibition on interstate handgun sales are good, commonsense reforms and deserve independent consideration. The firearm-registry piece might provide some psychic comfort or political cover, but the fact remains that if Toomey/Manchin becomes law there will be a considerably more extensive federal paper trail on gun ownership than existed before. And in any event, none of these conciliations ameliorate the flaws in the background-checks provision that make it unworthy of support.
Preventing criminals and those with dangerous mental illness from obtaining guns is a worthy goal of law. But such a law should stand a credible chance of success, and demonstrate that it will not unduly burden lawful citizens in the exercise of their constitutional rights. The Toomey/Manchin bill does neither.