Politics & Policy

Hillary Clinton’s Gun-Control Plan Is a Missed Opportunity

(Scott Olson/Getty)
Her recommendations for curbing gun violence are extreme and divisive.

Buried amid the hyperbole and nonsense that stains Hillary Clinton’s newest gun-control plan are a couple of rather good ideas. The first: To expand the definition of “domestic abuse” so that guilty men do not fall through the cracks. “While federal law generally prohibits domestic abusers from purchasing or possessing guns,” Clinton notes correctly, “this protection does not apply to people in dating relationships or convicted stalkers.” The second: To “improve existing law prohibiting persons suffering from severe mental illness from purchasing or possessing a gun.” The United States, Clinton submits, should make it clear that people who are “involuntarily committed to outpatient treatment . . . are prohibited from buying guns.”

Provided that they were accompanied by sufficient due-process protections, I could get on board with both of these proposals. It is unlikely, though, that I will ever get the chance. And why not? Well, because Clinton’s portfolio seems to have been deliberately written to infuriate and to disjoin. In the present era, we hear a great deal of saccharine talk about unity and “coming together,” and not enough acknowledgement of why we are divided in the first place. Knowing full well that the harsher of her proposals will gain no traction at all, Clinton could have played a serious role in inspiring a piece of modest legislation that advanced some, but not all of, her goals. By electing instead to throw up a holistic proposal that is full of obvious half-truths, cynical deceptions, and good-old-fashioned extremism, she has all but guaranteed that her ideas will not be heard.

Herewith, a few examples of the silliness contained within:

Keep military-style weapons off our streets. Military-style assault weapons do not belong on our streets. They are a danger to law enforcement and to our communities. Clinton supports keeping assault weapons off our streets. 

That Clinton has included this item in earnest provides us with a strong indication of just how unseriously she is approaching this question. Between 1994 and 2004, the United States lived under a federal “assault” weapons ban. It did precisely nothing — except, perhaps, to cost her party control of Congress and to ruin her husband’s presidency. And how could it? As I am growing tired of noting

Like “hate speech,” the phrase [assault weapon] means whatever the government wants it to mean. Contrary to the deliberate willful insinuations of America’s would-be gun-banners, “assault weapons” are not fully automatic weapons; they are not especially “high powered” — indeed, they are usually considerably less powerful than your average hunting rifle; and they are no more efficient at “killing people quickly” than are common semi-automatic handguns. 

As for Clinton’s claim that such weapons are “a danger to law enforcement and to our communities”? That is simply not backed up by the facts. Not only are rifles of all types utilized in approximately half as many annual murders as are “hands, fists, and feet,” but those rifles that are arbitrarily deemed to be of the “assault” variety are used so infrequently in crimes that the FBI doesn’t even bother to keep statistics. 

Close the “Charleston Loophole.” Clinton will push Congress to close the “Charleston Loophole” that allows a gun sale to proceed without a completed background check if that check is not complete within three days . . . This same loophole allowed over 2,500 prohibited gun purchases in 2014. Clinton will support congressional efforts to close the “Charleston Loophole” and provide sufficient time and resources to complete a background check before a sale is approved.

Translation: Clinton’s commitment to the presumption of innocence is skin-deep and liable to be jettisoned at a moment’s notice.

Clinton’s portfolio seems to have been deliberately written to infuriate and to disjoin.

Under existing federal law, the FBI has three days in which to collect disqualifying evidence against a would-be gun purchaser, after which period it is required to let the sale proceed without further delay. This arrangement is not the product of a “mistake” or of a “loophole” — or, for that matter, of “extremism” on behalf of the “gun lobby” — but of a deliberate legislative attempt to ensure that law-abiding citizens are not denied their rights ad infinitum by bureaucratic failure or by executive misbehavior. Philosophically, the provision derives from an ancient principle: ei incumbit probatio qui dicit, non qui negat, or, “the burden of proof is on the one who declares, not on one who denies.” In her attempt to keep innocent Americans from the enjoyment of their constitutional rights, Hillary stands in diametric opposition this principle, and to the liberalism that she claims to personify.

Repeal the gun industry’s unique immunity protection. The NRA lobbied Congress to pass the so-called “Protection of Lawful Commerce in Arms Act,” a dangerous law which prevents victims of gun violence from holding negligent manufacturers and dealers accountable for violence perpetrated with their guns.

In truth, there is nothing “dangerous” about this law whatsoever. On the contrary: It is the epitome of “common sense.” As even Bernie Sanders has observed,

If somebody has a gun, and it falls into the hands of a murderer, and that murderer kills somebody with the gun, do you hold the gun manufacturer responsible? Not any more than you would hold a hammer company responsible if somebody beats somebody over the head with a hammer. That is not what a lawsuit should be about.

Sanders is correct. There is a material difference between a person’s suing a company because its product doesn’t work as promised and a person’s suing a company because its product works perfectly but has been deliberately misused by a third party. As the law stands, Americans are entirely free to sue gun manufacturers if the weapons that they provide malfunction; they are merely prevented from blaming those manufacturers for events that were beyond their control. There is one reason — and one reason only — that one would wish to change this state of affairs, and that is to permit anti-gun types to flood manufacturers with frivolous, unwinnable lawsuits. Clinton’s position is absurd on its face.

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Make straw purchasing a federal crime. When an individual with a clean record buys a gun with the intention of giving it to a violent felon — only so that felon can avoid a background check — it should be a crime. Currently, “straw purchasing” is a paperwork violation. This needs to change.

This is factually incorrect. Under existing law, straw purchasing is a federal crime — and a serious one at that. As the anti-gun Law Center to Prevent Gun Violence notes:

Federal law prohibits straw purchases by criminalizing the making of false statements to an FFL about a material fact on ATF Form 4473, or presenting false identification in connection with the firearm purchase. Two federal statutes — 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 924(a)(1)(A) — are the primary laws under which straw purchases are prosecuted.

Indeed, it’s not just a crime; it’s a felony:

In a successful straw purchase, the actual buyer is never specifically linked to the gun, but both the prohibited purchaser and the straw purchaser have committed a federal felony. The straw purchaser violates 18 U.S.C. § 922(a)(6) or 18 U.S.C. § 924(a)(1)(A) by falsely stating or falsely providing evidence that he or she is the actual gun buyer, while the prohibited purchaser — usually the actual buyer — is criminally liable for aiding and abetting the straw purchaser in such violations or in causing the making of the false statements.

Also to be taken with a pinch of salt is Clinton’s suggestion that this law is ignored or downplayed. In fact, as Justice Elena Kagan noted in a high-profile straw-purchase case in 2014, “[a]lmost half of all [ATF firearm] trafficking investigations involved straw purchasers.” Such investigations, Kagan noted pointedly, constitute “a large part of what the ATF does to combat gun trafficking by criminals.”

Tighten the gun show and Internet sales loophole if Congress won’t. If Congress refuses to act, Clinton will take administrative action to require that any person attempting to sell a significant number of guns be deemed “in the business” of selling firearms.

There is no such thing as either the “gun show” or “Internet sales loophole,” and that Hillary Clinton does not know this is alarming indeed.

At present, federal law distinguishes not between the places in which guns are sold, but between the people who sell them. By the terms laid out in 18 USC 921, Washington recognizes two types of gun seller:

1) FFLs: These are the people who are “engaged in the business” of selling weapons “with the principal objective of livelihood and profit,” and who are required by virtue of their profession to obtain a Federal Firearms License. FFLs are obliged to run a background check on everyone to whom they transfer a gun.

2) Private sellers: These are the people who sell guns not as part of a business or in order to make a profit but as one might sell an unwanted car or television. There is no federal requirement that private sellers fill in any paperwork or subject their transferees to a background check — unless, that is, they are selling to a person in another state.

Has she so much as thought about the implications of this policy?

Contrary to Hillary’s claim, the rules that apply to these two groups obtain consistently, and regardless of where their transfers are conducted. An FFL holder who is selling a gun from his inventory must run a background check and submit his paperwork whether he is doing business in his store, in a parking lot, in the kitchen of a friend, or — yes — at a gun show. A non-FFL holder may operate without active federal oversight regardless of where he is. By noting that private sellers are thus as able to sell the occasional firearm at a gun show or via Craigslist, advocates of tighter restrictions hope to mislead the public into the belief that “gun shows” and “online sales” have been accorded a special legislative exemption. They are wrong to do so. As David Kopel notes in an excellent explainer from 2000, “existing gun laws apply just as much to gun shows as they do to any other place where guns are sold.”

As for the overarching claim that there is a “gun-show crime problem” that is in need of fixing, the available evidence simply doesn’t point in that direction.

Advocate for comprehensive federal background check legislation. Laws prohibiting dangerous individuals from buying guns are only as effective as our background check system is comprehensive.

On paper, this proposal seems inoffensive, if rather pointless. In practice, though, Americans should be extremely wary of any “reform” that requires even private actors to track and record the movement of firearms. Ultimately, there is only one way that a system of “universal background checks” can work, and that is for either the dealers or the states to keep comprehensive documentation of who has transferred what to whom. The gun-control movement can play with language as much as it likes — and, I daresay, it will — but the inescapable truth is that if Hillary Clinton’s plans were to come to fruition in any useful way the government would necessarily be able to find out who has what, and where they got it. If it couldn’t, it would never be able to prosecute anybody for failure to comply. I’m simply not comfortable with that. And nor, I’d venture, should you be.

#related#As it happens, I do not believe that the federal government has the constitutional authority to intrude into this area in the first place. As it stands, Congress has passed laws that regulate all commercial and all interstate firearms transactions, but that leave the remainder of transactions alone. As a critic of both the Wickard and Raich decisions, I must confess to being a little uncomfortable with even this more limited arrangement. But at least I can detect a rationale behind the demarcation (FFLs are engaged in commerce; interstate transactions cross state lines by definition). What, exactly, is the justification for Hillary’s idea? As she herself concedes, the intention here is for the federal government to begin regulating noncommercial transactions that are conducted solely within one state — a constitutional stretch, even in our permissive age. Has she so much as thought about the implications of this policy? Frankly, I doubt it.

A missed opportunity. But par for the course.

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