Why 'Sensible' Gun Control Will Not Happen

Common Ground?

It is a commonly repeated meme that 'most gun owners' support 'sensible gun control', usually interpreted as including such things as universal background checks. While this statement is probably true on its face for some definition of 'sensible', it ends up being irrelevant. Practically, politically, nothing resembling 'sensible' gun policy is or will be possible any time soon. This post discusses some of the reasons why that is the case in the context of recent events in Missouri and why even 'reasonable' gun owners and 'reasonable' gun-control advocates currently have no common ground. If we understand that problem, it may be possible to change it, but it won't be easy.

First off, I am a conservative gun owner, I work with law enforcement (in my capacity as the Commander of the Lawrence County Sheriff's Auxiliary, a unit of armed, non-peace officer volunteers in Southwest Missouri), and my experience with issues like school shootings is rather direct and personal. At least in the abstract, I am for 'reasonable' gun control as some people define it. I believe quite strongly both that

1. the Right To Keep and Bear Arms (RTKBA) is an individual capital-R Right as well as a communal Duty and
2. society has a responsibility to keep arms out of the hands of prohibited persons (violent felons, the adjudicated insane, those under certain temporary orders)

On the surface, this would seem to create some--- perhaps narrow--- common ground with moderate gun-control advocates. I have even discussed at times what some potential proposals might look like with folks of that persuasion, but the unfortunate fact is that they simply will not happen, not now, not soon, and will never happen without significant sociopolitical changes. The specter of governmental misuse of 'reasonable' gun control is not a theoretical slippery slope problem but an inevitable and currently insoluble issue borne out by direct, practical experience. Enough politically active gun owners are aware of this issue to render even apparently 'reasonable' policies stillborn.

Background Checks versus Registration

The issue can be demonstrated by examining another very common argument advanced by gun-control advocates, at least some of whom I believe are honest and well meaning:

Proposals for universal background checks are designed to make it impossible to create a registry and therefore there is no possibility of governmental misuse of the check system.

Specifically, this statement is applied to attempts to close the "gun-show loophole" and apply some kind of instant checks to all private firearm transactions. I am not even going to approach the discussion here of the "gun-show loophole" or the various fallacies involved. I am going to stipulate that some portion of firearm transactions happen outside of FFLs, are not subject to background checks, and that society might benefit from preventing some portion of those firearms from going to prohibited persons. I am going to charitably assume, for the sake of argument, that the main proponents of such a system have honest motives and that there is some technical implementation possible which would not drastically inconvenience common, completely private transfers of firearms including auctions, swap meets, in-family transfers, gifts, and trades between neighbors.

Even given those assumptions, there is a substantial logical inconsistency in the idea of universal checks without universal registration. We'll deal with that problem and then move on to the real show-stopper. The reason that instant background checks work with FFLs is simple: in order to be an FFL, you have to register with the federal government. Given that FFLs are registered and required to keep substantial paperwork on their transactions, it is possible for the federal government, via the BATFE, to audit an FFL to ensure compliance with background checks. Off-book sales, especially when matched to financial data from other sources (e.g. tax returns, manufacturer records), trigger scrutiny, potential forfeit of license, and possibly prosecution.

So how does that work with a private transaction? Under a universal check policy, if a firearm transfers from private person A to private person B to private person C, how do you verify that a check occurred at each stage? You can't. Since none of those people are required to keep paperwork or records for audit purposes and because the check system is not supposed to create a de facto registry or transaction history, there is in fact no way to figure out after-the-fact when checks should have occurred or even which checks did or did not occur. This is, in fact, the exact conclusion that the Justice Department came to:

The nine-page document says the success of universal background checks would depend in part on “requiring gun registration,” and says gun buybacks would not be effective “unless massive and coupled with a ban.”

Read more: http://www.washingtontimes.com/news/2013/feb/23/nra-uses-justice-memo-accuse-obama-admin-wanting-c/#ixzz32JsfYJTF
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This problem could be partially ameliorated by constructing an auditable transaction history from each check made. If there are records of an FFL sale to person A and a private transfer check to person B and a firearm is found in the hands of person C (and not reported stolen), then it can be deduced that a required check was skipped between person B and person C. An auditable transaction history is for all intents and purposes a registry, at least of firearms transferred after the universal checks are put in place.

A transaction history still would not solve the problem of an unreported middle-man (a background check occurs on transfer to person C but not from person A to B), and it would do nothing about existing arms in private hands prior to the start of universal checks. Someone found with a weapon and no history of transfers can simply claim that they possessed the weapon before the start of checks. The only possible solution to the latter problem would be a complete registration of who owns each firearm at the start of the system so that you can actually determine whether and when a private transfer has occurred. Any firearm found without a current and correct registration would then indicate a violation either way: failure to record a transfer or failure to register in the first place.

Low-Hanging Fruit Technically Reachable

Let's say for the moment that this issue was surmountable: either you accept that gaping holes will exist in the checks and use it only to catch low-hanging fruit where a violation is obvious or you accept a pragmatic limitation of enforcing checks only for firearms with recorded FFL transfers after the effective date of the universal check system. You could also get quite a bit closer to the goal with a cleverly designed permit-to-purchase system whereby a potential buyer carries a card documenting a relatively recent background check. The seller would only, in theory, have to be able to verify that the card is valid and that it is not in a list of revoked permits (to catch people prohibited after their most recent check, such as someone subject to a protective order or who has been involuntarily committed). Such a system would limit the exposure of private data to only the administrators of the system and to buyers/sellers who share a transaction.

In theory, a permit-to-purchase system could allow conscientious sellers to avoid unknowingly selling a firearm to a prohibited person. People can effectively do this today in Missouri by asking someone for a valid concealed-carry permit, but they would have to restrict the pool of potential buyers to only CCW holders. If the buyer-seller were then required to retain some documentation of the transaction, such as an invoice or bill-of-sale, then law enforcement could reconstruct the transaction history for a particular firearm by walking through the chain of transactions one at a time, but would not be able to mount practical fishing expeditions. Black market transactions would still occur, but some sales which pretty much everyone would agree to be unlawful might be stopped and that is, in fact, a goal that I--- radical gun rights supporter that I am--- can agree with in the abstract.

So, let's say that you could solve the practical problems, that you could craft a bill with sufficient safeguards and with some sharp teeth to discourage government from misusing the data. Let's further assume that you could shepherd that bill all the way through the political process without it being substituted in committee or rewritten in reconciliation, crippled by malicious or plain stupid amendments, or subverted to other purposes. I don't actually believe even this much is possible, but let us assume for the moment that it is.

It still won't work.

Missouri CCW Debacle

Missouri has a shall-issue concealed carry permit (CCW) system. Until recently, possession of a CCW permit was indicated by an endorsement on the drivers' license administered through the state Department of Revenue (DOR). In 2013, the DOR was caught requiring documents for CCW application and renewal that it had no authority to require, and was found to be scanning and storing those documents contrary to state law. Because people were concerned that the scanned data would make permit-holders vulnerable to wholesale identity-theft (the reason state law forbade the DOR from requiring, scanning, or storing certain documents in the first place), various investigations were begun into the policy changes. Along the way it was discovered that permit-holder data had already been disclosed in ways which clearly violated the law. Roughly 163,000 CCW holders had their data distributed on multiple occasions.

It should be noted that this entire issue developed in the context of the newspaper in Connecticut which had published concealed-carry permit holders personal information on a website. When Missourians were concerned about events in Connecticut, they were solidly reassured that such an incident would be impossible in Missouri, because the law contained safeguards to protect the confidentiality of permit-holders' data. I, myself, made that assurance publicly at several points based on my understanding of the law's clear wording which made violation a criminal offense.

After the governor's office first denied that the incident had occurred at all, to be contradicted by someone in the state Highway Patrol who had been involved in the disclosure, and them denied the significance of the incident, there were eventually two resignations, one on the Highway Patrol and one in the Department of Revenue. No disciplinary proceedings were initiated. No criminal prosecutions occurred. No publicly announced or documented criminal investigation happened at all. In fact, the DOR continued its unlawful actions after these disclosures came to light and after the governor ordered them to stop until the state legislature completely removed the system from their authority. A new system is being implemented and is now mostly functional with the county sheriffs printing and issuing CCWs. As the county sheriff's are already responsible for performing the background checks and application processing, the new system results in no additional exposure of private data. Information on the exact status of the CCW data disclosed and the scans of identity documents which were sent willy-nilly to a Georgia contractor is still rather murky.

The difficulty involved in getting the Governor's Office to take any action and the fact that a memo came to light whereby Janet Reno thanked the Governor for his help in implementing aspects of Real ID in Missouri (which aspects were specifically forbidden under Missouri Law) lead to state representative Rick Brattin introducing HR 923 in the 2014 state regular legislative session to impeach Governor Nixon (this was one of three impeachment resolutions introduced this session on three separate issues, one of which, Mike Moon's HR 476, I consider to represent an even more serious issue, that of not calling elections for unrepresented districts in the state, effectively barring 278,000 Missourians from representation during the session).

In my persona as Commander of the Sheriff's Auxiliary I presented testimony on behalf of the Sheriff's Office in the Committee Hearing for this resolution. At first, the legislature simply tried to bury it, but political pressure and public outcry forced the Speaker to refer it to the House Judiciary Committee (normally such measures would be handled by the General Laws Committee which was more favorable to the resolutions)... who again tried to bury it. Finally, pressure forced them to schedule a hearing, which was rescheduled twice. On the day it was supposed to be held, I traveled 3 hours, arriving the night before and footing a hotel bill (remember, we're volunteers) for a 1 hour hearing which started 37 minutes late and therefore did not get through the reading of the second resolution, let alone testimony. The hearing was then continued to the following week. Witnesses, including myself, had to travel again but the Committee did finally work its way through the resolutions and solicit testimony. No one spoke against any of the three resolutions. Some seven written testimonies were submitted against the resolutions as compared to approx. 270 in favor (Ron Calzone probably has better numbers, don't quote me on that).

The Committee, its hand now forced, had to consider the resolutions. A whip count (a request to determine how a measure would fare if it were called to a vote) indicated that the majority of the members were in favor of forwarding some or all of the impeachment resolutions to the full House. If passed by the House, the trial would then, under the Constitution, proceed under "seven eminent jurists" appointed by the Senate (Article VII, Section 2).

And When the Dust Has Settled...

So, the Committee members wake up one morning and read an interview where Stanley Cox, the Chairmen of the House Judicial Committee, says that the Committee as a whole determined that the accusations represented Unconstitutional behavior by the Governor, but did not rise to the level of impeachment and that no vote was necessary on the resolutions. Not only had the committee members not been notified of their own decision, nor had the sponsors of the resolutions (as is customary in committee proceedings). In the end, what with one thing and another, the Committee Chairman spun down the clock on the legislative session to the point where even if the resolutions could be forced to the floor, there was no longer any opportunity to act on them (the Missouri legislature is Constitutionally restricted to only part of the year--- a very good thing in most instances). Many people dragged their heels to delay the resolutions, but effectively a single legislator, Stanley Cox, pulled the trigger and kept every other legislator from voting on them.

For his trouble, incidentally, Representative Moon (my local district) has a suddenly appearing and well-financed primary challenger who happens to be married to a recent appointee of the Governor. All of this happened in a Republican-dominated legislature under a Democratic Governor and a Republican committee head. It isn't partisan politics, just run-of-the-mill corruption. Stanley Cox is term-limited, so his House seat cannot be threatened (his upcoming judicial election, on the other hand...).

'Safeguards' Really Aren't Unless Someone Is Willing To Enforce Them

The upshot of all this is an example of exactly the kind of chicanery that gun rights advocates fear in 'reasonable' legislation. Until very recently, I would have said that the Missouri CCW process represented exactly such reasonable regulation and that it incorporated sufficient safeguards. I like shall-issue CCWs; I like making sure that people licensed to carry have at least a minimum of exposure to self-defense law and that they don't screw up enough on the range to be kicked off (the only way anyone fails the range practical). Now I know for a direct and experiential fact that any such safeguards are irrelevant because they will never be acted on. If there is sufficiently blatant abuse, the regulation might be changed after-the-fact, but the violators will not be punished and those hurt will not be made whole.

Why would I expect that any attempt at universal registration... I mean background checks... would fare any differently? What safeguards would prevent data from being amassed beyond the mandate of the regulation, from that data being willfully misused, or from having that data simply inadequately protected? Should I expect the courts to leap to my defense? The Governor? The Legislature?

Target's 2013 exposure of 110 million customers' data did not happen because the thieves hacked Target's network directly, but because the attackers found a weak point in one of Target's contractors who probably should not have been given access to the main network in the first place ("A 'Kill Chain' Analysis of the 2013 Target Data Breach", Committee on Commerce, Science, and Transportation, 26 March 2014). Missouri passed a law to prevent the kind of data centralization and contractor access required under Real ID to prevent precisely this kind of occurrence with CCW/Driver's License data. There were legal safeguards in place. The safeguards were violated, no one was punished, and, in fact, we don't actually know that the practice has been stopped outside of the CCW process which was taken completely from DOR authority.

And So We End Up With Nothing

Color me unimpressed with "reasonable" regulation.

Until and unless the sociopolitical environment changes so that legislation 'with teeth' actually draws blood, I will not support firearm transaction check or permit-to-purchase proposals even if, on the surface, they appear reasonable and rational: I'm simply not that stupid. If advocates of 'reasonable' regulation had made even the slightest public effort to pin the ears back of the people responsible for the 2013 scandal, my attitude might be different. If media had not simply decried the sponsors of the impeachment resolutions as making a 'political stunt', my attitude might be different. I might be on the side of 'common sense' proposals. That opportunity has not only been lost, but I now side with the people working to roll back some of the "common sense" restrictions we already have.

[None of the preceding represents the official opinion of... well anything. Blame me. Or Canada. Or whatever.]