Background checks and the danger of absurd political expectations
To hear the rhetoric coming out of Carson City this week on the rapid push-through of SB143, the fix to the foolishly unworkable background check law narrowly passed by voters a few years ago, we are at the brink of doom and slavery. Or total utopia. Jackbooted thugs are coming to take our guns along with the rest of our freedoms. Or the crime of murder is about to be a thing of the past in Nevada.
The problem is that SB143 is an incredibly modest – and frankly silly – piece of legislation that will do nothing (well, policy-wise, anyway) more than waste a little bit of time and money of the already law-abiding.
I say this with some expertise. I have defended (and currently defend) the rights of gun owners in court and have prosecuted countless gun crimes in other career phases – and in all instances have been able to do it without sacrificing my principles as they relate to our fundamental right to bear arms. I have litigated the Second Amendment (and our state analog) in briefs to the Nevada Supreme Court. I have lived through a school shooting and have researched and written about the statistics behind gun ownership, violence and the relative efficacy of various gun control proposals. I happily own plenty of my own guns and will never give them up, but was taught by my Grampa and the U.S. military to be fanatical about weapon safety.
And so I say again – SB143 is silly and pointless. It will not do the harm its opponents claim, nor will it have any significant benefit to Nevadans. The dishonest and/or ignorant debate over the bill, on the other hand, will be terribly impactful to us all.
So – what actually does SB143 do? It’s really very simple – if you want to buy (or be given) a gun from someone other than an immediate family member, both seller (giver) and buyer (receiver) have to go to a gun shop and pay the shop to conduct the same background check they would do if the sale was coming from their own inventory. That’s pretty much it. And a huge number of people transferring weapons to one another are exempt, including:
- Employers/co-workers of police, security guards, military members, or pretty much anyone else who uses a firearm at work
- People dealing with “antique firearms” (as defined by federal law)
- “Immediate family members,” which includes “spouses and domestic partners and any of the following relations, whether by whole- or half-blood, adoption or step-relation: parents, children, siblings, grandparents, grandchildren, aunts, uncles, nieces and nephews”
- Executors of estates after a gun owner dies
- Those tossing a gun to someone else if necessary for immediate self-defense, action movie style (yes, that’s really in there)
- Buddies borrowing a gun at the shooting range, a shooting competition, on a hunting trip, in a “performance involving firearms,” or any time the owner is “present” – as long as no one plans to commit a crime, of course.
The checks are done through our state system rather than the FBI, which actually makes the checks more thorough. Practically speaking, the new checks will only involve sales to other non-family members.
The problem is that there is no real way to enforce this. Say I want to give an old high school friend a shotgun, because he hunts chukar more than I do. Technically, we need to pay a gun shop to do a background check. But if I don’t, how would anyone find out? Who would report it? How would you prove it in court? What county district attorney (a reliably conservative lot, except in Clark County) will risk their job chasing those cases down?
For total stranger transfers, I suppose you could do some sting operations against people suspected to be selling guns illegally. I don’t have any real problem with that, except that it eats up police resources and/or gives lie to the “no additional cost” fiscal note attached to the bill. But in general, it relies totally on the good will of a seller to instigate the background check – and such voluntary checks were already allowed under pre-existing state law.
SB143, if it had been in place, would not have stopped Steven Paddock on Oct. 1. It wouldn’t have stopped any of the high-profile school shootings over the past few years, including the one at Parkland, FL on Valentine’s Day last year, and it won’t prevent another one. If a criminal wants to obtain a gun and can’t get it from a gullible private seller, there is a thriving black market in firearms they can turn to. If anything, SB143 will probably broaden that black market.
But what it does not do is “grab guns.” It does not make us register our weapons, or limit our ability to shoot them or obtain ammunition, or even prevent us from sleeping with a loaded pistol under our pillows. It lets us hunt with friends freely, share our guns during about any type of activity one can think of, and lets a grandfather pass down his trusty old .22 rifle to his grandson, all without any sort of government intrusion.
Gun rights advocates do themselves no favors when they whip themselves into an apocalyptic fury over a milquetoast change to gun sale regulation, or to a background check scheme even most gun owners are fine with. Like the boy who cried wolf, the next time real gun control legislation comes down the road (and it will), their credibility with less politically active gun owners will be greatly diminished. As citizens, we cannot trust that pro-gun lawmakers actually understand (or are telling us the truth about) the legislation they are voting on.
Similarly, Democrats do themselves no favors when they claim legislation will have sweeping public safety benefits, when in fact it will do no such thing. Those who over-promise and under-perform eliminate their own credibility – who can trust them with other upcoming public safety measures, or to handle criminal justice reform in a way that doesn’t increase crime? As citizens, we cannot trust that anti-gun lawmakers actually understand (or are telling us the truth about) the legislation they are voting on.
Worse for the Dems, by shoving this bill through in a way specifically designed to remind Republicans they are in the minority and that their voice will be resolutely ignored (not to mention the hundreds of conservative citizens who rallied to oppose it), they gave lie to all the sunny bipartisan rhetoric of just a few short weeks before and pointlessly exacerbated our political polarization. They allowed themselves to be reasonably painted as cartoonish abusers of political power, for no gain. Republicans, meanwhile, only advertised their penchant for gross exaggeration in addition to their impotence – and broadcasting your weakness to your opponents is a dumb way to leverage a minority position.
SB143 itself is inconsequential. But the manner in which it was handled – by both parties – is not a good indicator of a healthy, productive session to come for those of us who value substance over base political theatre.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]