STUCK IN SECOND

Proposed gun laws were shot down in the Senate lastnight. The most significant and the one thought to have the best chance of passing was the one that would have mandated background checks for the sales of firearms by private sellers (i.e. individuals, not stores). Laws regulating firearms are immediately controversial in the United States where we have the Second Amendment to our Constitution. The question is always whether a measure violates rights secured by that amendment. Based on our current law, a background check requirement for all firearm sales would likely be Constitutional because it would not erode the established rights to possess firearms. This post only deals with the legality of federal background checks; not the other proposed measures in Congress or those passed by individual states.

Stores are already required under their federal licenses to perform instant criminal background checks on customers attempting to purchase handguns. 18 U.S.C. 922(t). Some people are by law prohibited from possessing firearms–most notably felons–and the background checks are designed to stop sales to them. That requirement is only for licensed firearms dealers. Individuals are allowed to buy and sell firearms in much the same manner as other used items provided they are not doing so as a business. Since they are not licensed dealers, they do not have the license-required background check obligation. The private sale background check proposal, which appeared in a few different drafts, was intended to prevent people who are prohibited from possessing firearms and unable to buy them in a store from being able to get them at gun shows and/or from private sellers.

The licensed gun dealer background check requirement has been upheld as Constitutional. A similar requirement on private sales would most likely also be upheld as Constitutional because it does not impact individuals’ rights to own and carry firearms. The requirement would only prevent possession that is already Constitutionally barred.

Felons are already prohibited form possessing firearms by federal and state laws. See 18 U.S.C. 922(g); Conn. Gen. Stat. Sec. 53a-217. These laws, known as FIP (felon in possession) laws, have been held to not violate the Second Amendment. The Supreme Court, in a majority opinion written by Scalia, asserted in District of Columbia v. Heller, 128 S.Ct. 2783, 2817 (2008)

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.

That was not a holding but does imply that such laws are Constitutional. Federal circuits and state supreme courts have explicitly held FIP laws to be constitutional. The usual reasoning is that such possession is not protected by the Second Amendment or state constitutional provisions. See e.g. United States v. Pruess, 703 F.3d 242 (4th Cir. 2012).

Background check requirements do not create new prohibitions on firearm possession. They serve to enforce existing, accepted prohibitions. While they may cause slight inconvenience in the buying or selling of firearms, inconvenience is not the same as the infringement of a right, especially since most sales are already subject to background check requirements.

I support background checks for all sales because I think it would be an effective and minimally restrictive measure. We know that the high majority of gun owners do not use their weapons for illegal activity. Laws should thus focus on preventing guns from falling into the wrong hands. Unlike drugs, guns are not made in secret labs but in factories. To get from a factory to a criminal activity, a gun must pass through some hands, some of whom are legal sellers or owners. Background checks for all sales would make it more difficult for criminals to obtain guns without banning things.

How would the Supreme Court really rule on a universal background check law? We will probably never know. How would such a law impact firearm-related crime? We will likely never know that either.