Bloomberg’s editors argue that the Senate should pass a law mandating “universal background checks.” “Americans overwhelmingly support universal background checks,” they insist. So what’s all the fuss about?
Quite a lot, actually. For a start, the idea that “Americans overwhelmingly support universal background checks” is derived from national polling on the question in abstract, not from our experience with trying to pass actual bills into law. Indeed, when Americans are actually asked to line up on either side of the question — that is, when details of what would actually be involved becomes clear — that “overwhelming” support tends to evaporate. In Nevada, in 2016, the idea squeaked through as a ballot proposition by 50.45 percent to 49.55 percent. In Maine, in the same year, it failed, 48.2 to 51.8. There’s a bit of I-support-Medicare-f0r-All-but-not-when-I-see-the-plans dynamic here.
And those plans matter. The Bloomberg editors insist that our present “two-tiered system” — by which they mean that we run background checks on commercial and interstate transfers, but not on private intrastate transfers — “is an insult to common sense and undermines public safety.” But that two-tiered system is exactly what one would expect to see given that the federal government is permitted to superintend interstate commerce, but is not permitted to superintend private transactions within the same state. Moreover, it is far, far easier to write a law that applies mandatory background checks to commercial sales than it is to write a law that applies them to private transfers, because, while there is no argument as to what constitutes a commercial sale (that’s any gun transferred to a person by an FFL, via form 4473), there is a raging argument as what constitutes a private transfer. Does loaning a gun to someone for a month count? Does giving your wife a gift count? Is there a difference between handing someone a gun at a range and handing someone a gun in your property? Should we limit the definition to transfers that take place at gun shows and via public notices, as Toomey-Manchin sought to do, or should we expand it beyond that? And who should be exempt? Your brother? Your cousin? Nobody? Only people with concealed-carry permits?
And how should the government ensure compliance? The traditional answer to this is, “by setting up a registry.” Or, at the very least, “by forcing the commercial entities that would be charged with running the checks to keep records that could be made available to the police.” (That’s apparently “not a registry.”) But if we do that, we’re not just talking about extending background checks; we’re talking about reversing a decades-long prohibition on gun registries, too. How does that play into the dynamic?
At the end of the piece, the editors take a swipe at the NRA’s opposition to their idea:
The NRA states that it opposes background checks because they “don’t necessarily stop criminals from getting firearms.” This appears to be the organization’s most compelling argument. One wonders whether the NRA would apply it to laws against murder, assault and the like — which also don’t “necessarily” stop those crimes. Few lawmakers in Washington can be swayed by such patently ridiculous reasoning. But the NRA’s money and electoral muscle talk, so Americans keep needlessly dying.
This is a bad argument. For a start, recent pro-gun-control studies have cast serious doubt on whether so-called universal background checks actually do anything at all. Of course that should be taken into account when deciding whether to upend the country’s laws. Furthermore, the editors are not comparing like with like here. The promise of “laws against murder, assault and the like” is not that they will prevent those things — “murder, assault, the like,” remember, are malum in se, not malum prohibitum — but that they provide the government with the chance to punish people after the fact. The promise of background checks — a promise that is repeated endlessly, including in this editorial — is that they will prevent people from dying in the first place. It would be, to borrow a phrase, “patently ridiculous” to suggest that we need universal background checks so that we have something to prosecute criminals with once they have committed a crime, given that those criminals are already prosecutable for both illegal possession of firearms, and for whatever it is that they’ve done having got hold of one. So if they don’t work in the first place . . .
The headline on the Bloomberg editorial is “Mass shootings show need for gun buyer background checks.” Nothing could be further from the truth. If the Bloomberg editors can find a single mass shooter from the last decade who obtained his firearm via a post-sale private transfer in a state that lacked “universal background checks,” I will be all ears. But they can’t, of course. Which is why there is no mention of such a person in their plea.