For more years than I can recall, gun rights advocates have implored those seeking to make it more difficult to acquire a firearm in America to use the laws on the books for keeping guns out of the hands of those who should not have them before further constraining 2nd Amendment rights.
Indeed, in a recent video released by the NRA, Executive Vice President Wayne LaPierre reminded us, yet again, that we could better address our gun violence problem by simply doing a better job with the laws we already have.
"Under the existing federal gun laws, [Obama] could take every felon with a gun, drug dealer with a gun and criminal gangbanger with a gun off the streets tomorrow and lock them up for five years or more. But he won't do it, his Justice Department won't do it, and the media never asks why."
LaPierre continued by noting, “No organization has been louder, clearer or more consistent on the urgent need to enforce the federal gun laws than the NRA."
He is right about that. The NRA is constantly arguing that we do not need new gun laws—we simply need to better enforce the ones we already have.
Apparently, President Obama has been listening.
As we take a look at the first part of the President’s new gun proposals —the ones that have gun supporters and GOP presidential candidates crying 2nd Amendment foul—it appears, with one potentially glaring exception to be discussed later in this piece, President Obama has done little more than decide to go along with the NRA and the millions of Americans who fear further restrictions on purchasing weapons.
And yet, so quick are gun rights advocates and pandering politicians to revolt when it comes to anything this President has to say on the topic of guns, they have completely failed to notice that Mr. Obama has, in large measure, capitulated to their own way of thinking.
The federal laws—and the laws of most states—already require that those in the business of selling firearms be licensed to do so. As a condition of that license, a firearms dealer is typically obliged to submit any prospective purchaser of a gun to a background check.
Yesterday, the President proposed better enforcement of these laws by focusing in on who, in actuality, is a firearms dealer and better enforcing the requirement that actual gun dealers fulfill the requirement to be licensed and submit their customers to a background check before selling that prospective customer a gun.
As Obama noted in his speech, he is not looking to require someone who would like to sell one or more firearms to raise some extra money to pay this month’s rent to register as a dealer. He was quite clear in noting that he is talking about those who are actually in the business of selling guns to earn a profit—including those who sell such products at flea-markets, gun shows, etc.
Even the most avid gun rights enthusiast, who has the slightest interest in being reasonable, must recognize that when it comes to achieving the objectives of background checks, the location of the sale should make no difference. And yet, dealers have been avoiding the obligations of the law via the gun show loophole for years.
Certainly, someone who opens a gun store in a strip mall in order to earn a living as a gun retailer is no different than someone who travels the state using gun show events as their real estate of choice for selling their wares in their own effort to produce a profit.
Of course, there are always those who immediately point out that the requirement is too “vague”. How many guns must one sell before they meet the test of being a gun dealer and how are they to know if they are in compliance with the law?
While the answer should be obvious, a quick review of my Twitter feed reveals that people are either less clear on this than one might think reasonable or are simply pretending to be less than clear as an expression of their anger at anything involving the words “guns” and “Obama” in the same sentence.
Somehow, there is no shortage of people who understand that when they sell their family car because they want the cash or are simply preparing to buy a new one, they are not car dealers because they aren’t in the business—yet, they can’t seem to work through how the same principle would apply when it comes to selling guns.
If you carry a business card identifying yourself as a person in the business of selling guns; if you travel from gun show to gun show making your guns available for sale to the public; if you order new inventory as you deplete your current stock through sales; or if you do other things people typically do when they are in a business, you are likely to be deemed in the business of selling guns and required to follow the rules applying to gun dealers. This would be the case even if you only sell five guns in a year’s time.
Just because you have a bad year in business doesn’t mean you aren’t in the business.
On the other hand, if your grandfather passes away and leaves you his fifty weapon gun collection in his will, the fact that you choose to sell them off because you don’t want them does not make you a gun dealer. You are simply liquidating property you received that you don’t want—you aren’t in the business of selling guns for profit. Of course, if you use the fifty guns to get you started in the business and start to conduct yourself in the manner of someone in that business, that would all change.
It really isn’t that hard to work out.
What the President proposed yesterday was that we take a more buttoned down approach to defining who is—and who is not—a gun dealer and that we don’t base that determination on what sort of real estate a seller chooses as her place of doing business.
How is that not simply doing a better job of enforcing the laws that are already on the books?
The President also proposed that we clarify the existing laws to make it clear that a purchaser who is otherwise obligated to submit to a background check when seeking to purchase a firearm not be able to sidestep the requirement by using a straw man (a trust, a corporation, etc.) to get around the requirement.
Is anyone really comfortable with a felon convicted of a violent crime being able to purchase guns by setting up a corporation or trust to undergo the background check to avoid doing so himself?
Again, this is a step that simply sharpens enforcement of the existing law—just as the NRA has long demanded be done.
There is a third part to what the President proposed when it comes to better enforcement that does merit much closer scrutiny as it very well may present a violation of constitutional rights.
That would be Mr. Obama’s proposal that mental health records, that would be otherwise protected, be made available during the background check process.
There is reason to be concerned that putting someone in a position of having to forfeit their 4th Amendment right to keep their medical records private in order to pursue their 2nd Amendment right to own a gun might, indeed, violate one’s Constitutional rights.
However, before you get too crazy about this, I strongly recommend you take a hard look at the current state of the both the federal and state laws when it comes to gun ownership on the part of those who have been adjudicated mentally ill. You will discover that, in almost all states and all instances, these people are already prohibited from owning a firearm. What’s more, many state laws, including states typically identified as “red”, allow firearms to be taken away from you merely because a police officer believes you might use the weapon to harm yourself or others.
While it is true that under the new rules a doctor would be permitted to disclose your personal mental health information to the FBI during the course of a gun purchase background check, it is already the case that a doctor is obligated to breach the doctor-patient confidentiality requirement and inform law enforcement officials if they believe their patient is going to commit a crime.
Is it really that much of a leap to require a psychiatrist to warn law enforcement if they have reason to believe that a gun should not be placed in the hand of a patient who might do terrible things given his or her mental state?
That said, it cannot be ignored that a federal court of appeals decision, issued just three weeks ago, declared a federal law that bans gun ownership on the part of anyone who has previously been adjudicated a “mental deficient” or has been previously committed to a mental institution, to be unconstitutional for being overly broad.
In Tyler v. Hillsdale County Sheriffs Department, 13-1876, U.S. Court of Appeals for the Sixth Circuit (Cincinnati), a Michigan man, who had been committed to a mental institution 20 years prior to applying for a license to carry a gun, was denied that license as a result of the federal law banning ownership by someone who had previously been committed.
A three judge US Court of Appeals panel held that, “Not all previously institutionalized persons are mentally ill at a later time, so the law is at least somewhat overbroad.”
Given this case, it seems unlikely that the President’s proposal to allow for disclosure of previous commitment to a mental treatment facility during a background check would survive judicial scrutiny.
If the potential for a violation of your constitutional rights via the disclosure of your mental health records during a background check is upsetting to you, my suggestion would be you make the case based on the approach taken by the Court of Appeals. There is a balancing act to be walked here, as there always is in restricting certain rights to protect the public, and it is perfectly understandable if you share the court’s opinion that the language of the Obama proposal regarding divulging mental health records might overstep what is constitutionally permissible.
But sensible people don’t throw out the baby with the bath water.
Maybe the mental health records provision fails. But that doesn’t mean that the other parts of the President’s efforts to better enforce existing law fails with it. And if you are one who has been screaming that the government stop proposing new gun restriction laws and do a better job enforcing the ones we already have, you might consider applauding the President for doing exactly what you have asked rather than condemning him for doing so.
As for President Obama’s additional requests for additional AFT agents to better enforce the background check laws or his idea that we do more to research and institute better safety features for firearms, while you may or may not approve, we should all be able to agree that this does not cross into potential violations of the 2nd Amendment rights. Thus, we will leave the discussion on these topics to another day. I will, however, note that it makes no sense for gun rights advocates to object to the President's request for more funding to research mental illness given their constant refrain that we need to address the problem as a mental health issue and not as a gun ownership issue.
The bottom line here is that, while I can appreciate some distress over the President’s suggestion that prior mental illness, and the opening of private medical records to disclose the same, presents some legal and constitutional problems and should be addressed with this in mind, the remainder of Obama’s proposals are very much in line with what the NRA has been seeking for years.
Yet, ironically, not so much as one of the GOP presidential candidates has so much as mentioned the potential problem with opening up mental health records for review as they are too busy thumping the President on the whole “he’s coming to take your guns” meme.
I suppose asking these men and women seeking to lead the nation to take a grown-up, intelligent approach would be asking more than they are capable of providing—at least based on what they have revealed to us in the campaign to date.
Measuring and balancing constitutional rights—when it comes to trying to deal with societal dangers abuse of certain freedoms can produce—is fair game and an exercise we should never stop pursuing.
We value our 1st Amendment rights just as we value our 2nd Amendment rights— but that doesn’t mean we haven’t long been clear on the need to place restrictions on 1st Amendment free speech rights when those rights are inappropriately used to do damage to others. The law does not permit you to exercise your freedom of speech to say whatever damaging thing you want about someone else without paying the price in a libel or slander action. As the President pointed out, you are not free to scream “fire” in a crowded theater when there is none, thus subjecting others to physical harm.
Similarly, 2nd Amendment rights are subject to limitation to protect the general public—so long as those limitations do not unduly or improperly infringe on your legitimate constitutional protections.
Concern over making personal mental health records available to the government is legitimate to be sure but crying foul over other attempts to better enforce existing laws on the books that have already passed judicial scrutiny is simply ridiculous.
If you want to be taken seriously when it comes to your gun rights, you might want to begin by acting seriously and recognizing that reasonable proposals by the president that do precisely what you have been asking for him to do deserve your support—even when such proposals are voiced by a president named Obama.
Contact Rick at thepolicypage@gmail.com and follow me on Twitter and Facebook. Rick can be seen daily on on Newsmax TV and heard on Saturdays at 11am on his radio program, Steele&Ungar, with Michael Steele, on Sirius XM POTUS Channel 124.
