Guns, Congress, and the will of the people

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Like most people who grew up in suburban Boston, I am not a gun person. I’ve never owned one. I’ve never even held at handgun. I’ve never been a member of the NRA. Yet here I am, sitting down to write a column preemptively defending Congress for its coming “failure” to respond to President Obama’s most recent call to “do something” in response to the Umpqua Community College shooting in Oregon and the other tragic mass shootings that have become sickeningly common over the past few years.

Here is the reality: Congress, imperfectly at times, generally reflects the will of the people. You, fellow denizens of the Acela corridor whose familiarity with guns is limited to TV and movies, are not representative of the rest of the country. The country doesn’t want to take the most commonly suggested actions proposed to prevent mass shootings, and with good reason.

Courtesy of Wikipedia

Courtesy of Wikipedia

For example:

“Ban guns”: Sounds easy. No guns, no gun crime. Or dramatically fewer guns, dramatically less gun crime. Even were this true (Professor John Lott of Yale has done compelling research suggesting that less crime is actually correlated with more guns), you would need to repeal the Second Amendment, which the Supreme Court has found confers an individual right to bear arms. You may not like it, but there it is – the “law of the land.” (Funny how President Obama hasn’t taken the same “the Supreme Court has spoken, drop the issue and move on,” approach to the Heller decision that he did on same-sex marriage and Obamacare).

Oh, and there’s the little problem of the 300 million existing guns that are already out there in America – how do you plan on getting them back other than by inventing a time machine? Do you think the criminals would comply with a “turn your guns in” request if nicely phrased? Donald Trump’s insane plan to deport 11 million undocumented immigrants in two years sounds downright realistic and respectful of civil liberties compared to an attempt to have government agents with guns roam the country to take away 300 million guns from the population. “Stop and Frisk” policies demonized by the left (which actually were effective at taking many illegally possessed handguns guns off the street) are mild compared to wholesale civil liberties violations that a gun confiscation program would involve.

And confiscation would need to happen for the United States to become like the United Kingdom or Australia, the two countries mentioned by the President as models in terms of gun policies. So don’t say “no one is talking about taking away your guns.” The President certainly is when he references the UK and Australia, and most Americans simply disagree with him.

“Keep guns out of the hands of the mentally ill”: Who can argue with that goal? Now think about the means necessary to achieve it. Do you want the government keeping a list of the mentally ill to add to a background check database? Who decides who goes on it? Who gets access to it (does the name Lois Lerner ring a bell?) Should we put every person ever prescribed antipsychotic medication on the list? Or Prozac? People with anxiety disorders? People who have sought treatment for drug or alcohol abuse? Anyone who has ever seen a therapist?

The same wealthy suburban demographic pushing the hardest to “do something” about mass shootings would explode with indignation if little Johnny from Dover ended up in some government database because he sees a therapist for anger issues, is diagnosed with ADHD, or is prescribed the wrong drug as part of his treatment.

And the privacy sacrifice of having your family’s mental health issues catalogued by the government is only worth the trade-off if you believe the next mentally-ill mass shooter will, notwithstanding his desire to commit multiple homicides prior to killing himself (murder already being illegal and carrying significant penalties), be scrupulously law-abiding with respect to his firearms acquisitions.

“Better Background Checks”: Here is where the debate always ends up. Background checks could be “better” in two ways: (1) add more information to the database and prevent more people from purchasing a gun legally (not going to happen — see above); or (2) force more sales (including private transfers) through the background check system – i.e., closing the “gun show loophole.”

But guess what?

There is no “gun show loophole.” It doesn’t exist. Guns sales are generally regulated by who sells them, not where they are sold. All federally licensed gun dealers must perform checks on everyone they sell to under existing law (even at a gun show).

Private citizens, unless the transfer is interstate, may sell or give away a gun the way private citizens sell or give away a used refrigerator, a television they don’t need, or anything else. If it makes you feel better to put a law on the books that requires a background check (and a trip to a dealer who has access to the system and presumably the payment of a tax) for each gun transfer from father to son, neighbor to neighbor, or enthusiast to enthusiast, knock yourself out.

But assuming such a law wouldn’t get struck down immediately as unconstitutional (on what basis would the federal government regulate a purely intrastate transfer of a gun?) how could the federal government possibly enforce such a law? After all, there is no record of who currently owns the 300 million existing guns. Would anyone other than law-abiding gun owners comply with such a law (envision an MS-13 gang initiation including a trip to the local federally licensed firearms dealer to document the transfer of weapons to the newly initiated)?

The effectiveness of “universal background checks” or similar measures would be marginal, at best. Is it, therefore, surprising that members of Congress from rural states are unwilling to take a political risk to pass a law that would have so little impact (other than increasing costs and hassle on their law-abiding gun owning constituents)?

It is easy to grandstand and pretend that there is an obvious legislative response to mass shootings; that there exists a legislative blueprint to prevent them, if only the forces of evil in Congress would get out of the way (picture them now, lighting cigars provided by the NRA with flames from burning $100 bills provided by the Koch brothers).

But over time, and in particular on issues subject to much public discussion, Congress generally does reflect the will of the people. And with respect gun control, notwithstanding our desire to “do something” in the face of tragedy, the people appear to have gotten it basically right.

Robert N. Driscoll is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds.

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