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Photo by Alexander Borisovich. Used under paid license from 123RF.com.

The U.S. House of Representatives just passed H.R. 8, the Bipartisan Background Checks Act of 2019. It has gone to the Senate where its chances of passage are slim. It faces 49 NRA-endorsed Republicans in the Senate and three more that would likely block passage, as well.

In fact, Mitch McConnell may need just one more opposing vote; a tiebreaker goes to Mike Pence who would almost certainly vote H.R. 8 down.

In January, Ladd Everitt wrote an article about H.R. 8, describing it as a “clean” bill.

While I am not going to debate the pros and cons of background checks, I do question the cleanliness of H.R. 8.

Since it’s unlikely to become law, it’s also unlikely to face judicial review. That’s almost a shame because it could not only be shot down but it could also end decades of Congressional overreach.

There is a legitimate question of the federal government’s power to regulate commerce in this fashion.

Under Article 1, Section 8 of the U.S. Constitution, the federal government has the authority to regulate commerce between the states and foreign nations. Over the years, various Supreme Court decisions have expanded the definition of interstate commerce to the detriment of the states’ sovereign rights to regulate intrastate commerce.

Webster’s defines commerce as “…the exchange or buying and selling of commodities on a large scale involving transportation from place to place.”

The background checks that were required beginning in 1994 are legal because Congress has the power to regulate interstate commerce and the only ones that can ship firearms in interstate commerce are federally licensed manufacturers, importers, distributors and dealers. It’s been that way since 1938 and is pretty much settled law. Since the licenses are granted by the federal government, it has the authority to govern certain aspects of the trade in firearms.

At first glance, it would seem that a sale between two individuals residing in the same state would be outside the scope of the federal government’s authority. This would include the ability of Congress to impose conditions on those sales.

However, thanks to some the expansions noted above, and some clever legal sleight-of-hand, the Justice Department under Janet Reno claimed federal authority because the firearms or components had moved in interstate commerce at some time. The Supreme Court agreed in 1996 and the question hasn’t been raised since, even though it would seem to be a prime target for judicial review by another Supreme Court, especially in the wake of the Heller and McDonald decisions.

But H.R. 8 goes beyond commerce. By restricting and even criminalizing transfers that are temporary, H.R. 8 is probably pushing the boundaries of interstate commerce beyond the breaking point. If a person loans a friend a rifle for a hunting trip, that person is expecting the rifle to be returned after the trip ends. It’s not a sale; it’s not a rental; no money changes hands and no goods are expected as compensation, so it is impossible for this to be considered commerce.

Therefore, mandatory, nationwide, universal background checks covering all possible types of transfer are not within the federal government’s powers to impose. Those powers reside with the states, which are free to enact universal background checks because they to have the authority to regulate commerce. Even there, states may not have the authority to regulate non-commercial temporary transfers of firearms between two individuals.

Like virtually all of the background check laws that have been enacted, H.R. 8 is impossible to enforce. As Representative Doug Collins noted during committee hearings on H.R. 8, the bill guts itself.

As a sop to those concerned about gun registration, the House Office of Legislative Counsel, which prepares the drafts of legislation, included Section 5: Rule of Construction, which says “Nothing in this Act, or any amendment made by this Act, shall be construed to (1) authorize the establishment, directly or indirectly, of a national firearms registry; or (2) interfere with the authority of a State, under section 927 of title 18, United States Code, to enact a law on the same subject matter as this Act.”

What’s a bit strange about this assurance is that the federal government, state governments and governments of political subdivisions are already forbidden to establish registries and have been since May 19, 1986.

18 U.S. Code § 926 (3) states, “No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.

The Firearm Owners Protection Act grandfathered registries established before May 1986 but prohibited new ones. Various states have gotten around this by requiring state-issued permits to purchase and/or possess and using records of permits issued as a de facto gun owner registry.

Without universal gun registration, background check laws are impossible to enforce. If the state does not know who owns a particular firearm, it has no way to trace informal changes in ownership.

In other articles, I have cited a study performed by Dr. Garen Wintemute on the effect of new background check laws enacted in Colorado, Delaware and Washington state. Wintemute found that only the Delaware law produced a spike in NICS inquiries; there was no noticeable increase in Colorado or Washington state. Wintemute concluded that citizens ignored the laws and that some law enforcement agencies didn’t even try to enforce them.

For whatever reason, the laws didn’t seem to produce the desired effect. According to the CDC, the rate of gun homicides in Colorado rose nearly 42% in the years following the new laws; Delaware’s rate of gun murders rose more than 28% and Washington’s rate increased nearly 31%.

So H.R. 8 not only is of questionable constitutionality and questionable efficacy, it prohibits something that has been forbidden for 32 years. I am not sure that there is a comparative or superlative form of “prohibited.”

Far from being a “clean” bill, as claimed by Mr. Everitt, H.R. 8 is downright slovenly. One can only assume that H.R. 8 was intended more as a public relations effort to satisfy gun control advocates than a bill intended to become law and survive a constitutional challenge in a conservative Supreme Court. One has to wonder if the House members that supported H.R. 8 aren’t privately happy knowing that it will likely be referred to a Senate committee and never heard of again.

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