The Federalist Point of View
On December 15, 1791 the first 10 amendments to the Constitution were enacted. We know them as our Bill of Rights. We believe in them and protect them above all else in our Government. Freedoms of speech, religion, speedy trial, and search and seizure are an integral part of the fabric of the American experience. The very existence of the Supreme Court is to interpret existing laws within the boundaries of the Constitution.
This current oath for all Federal Officials was enacted in 1884:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
This mean that all Federal officials, elected or appointed have to take this oath. The 2nd of these Amendments is the right to keep and bear arms. So, when you hear an elected Federal official give a speech about taking firearms away from the people, you know that they have forgotten (or never understood) their oath of office.
Four major Acts of Congress constitute firearms policy and regulation in the United States. I’m sure that everyone interested in Firearms Control is very familiar with all of them and what they attempt to accomplish. They are:
- National Firearms Act (NFA) of 1934
- Prohibits private ownership of machine guns and short-barreled shotguns
- This law was in response to gangster violence in the 1920’s and 1930’s
- Gun Control Act (GCA) of 1968
- Establishes the Federal Firearms License (FFL) System and all firearm sales made through an FFL are to be registered.
- This law was in response to the assassinations of President John Kennedy, Rev. Martin Luther King, and Sen. Robert Kennedy.
- Brady Handgun Violence Prevention Act (Brady) of 1993
- Establishes the National Instant Criminal Background Check System (NICS) to be administered by the FBI
- This law was named after James Brady, who was shot by John Hinckley, Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981.
- NICS Improvement Act (NIAA) of 2007
- Seeks to address the gap in information available to NICS
- The NIAA was enacted in response to the April 2007 shooting tragedy at Virginia Tech.
Here are some interesting facts that you might consider when you are forming your own opinion about firearms control. Often there is a significant difference between what politicians say they will do, what they do, and what they really do.
- The FBI estimates that there are 300 million firearms owned by citizens in the US. They estimate because most states don’t require registration of firearms. That number is very misleading however, because only 1 in 4 people (25%) actually own a firearm, and those that do average 4 firearms each. Changes the whole numbers dynamic doesn’t it?
- All four of these major gun control laws are (or were) largely unfunded by Congress. The law(s) were enacted and requirements were imposed on the States but little money was ever allocated to implement the laws. The NIAA has provided only $50,659,449 to 18 states from 2007 – 2012.
- There are 21 States that have ignored the NICS and have submitted fewer than 100 criminal and/or mental health records to date.
- From 1994 through 2009, over 107 million NICS background checks were conducted. During this period 1.9 million attempted firearm purchases were blocked, or 1.8 percent. These numbers sound impressive and the FBI likes to point to this metric to show what a great job they are doing, but they are less impressive when 21 states don’t even participate.
- There are no laws preventing members of international terrorist groups from buying firearms in the US. It would have been relatively easy to put Osama Bin Laden in the NICS but I guess no one ever thought of that. (Yes, I was amazed too!)
Here are my conclusions but you should draw your own conclusions from your own conscience.
- Every major Firearms Control Act of Congress was in response to a public outcry for the safety of the citizens. Politicians, from the President on down, have been historically eager to make a big headline by passing and signing laws that they know they will not fund. In that way, they appease the public outcry while at the same time maintain the status quo. I am mystified as to why every President and every Congress has done this.
- Until all 56 States and Territories of the United States fully participate in the NICS by providing complete criminal, drug abuse, and mental health records for all of its citizens, there will be little or no hope of achieving meaningful firearms control.
- There are already sufficient firearms control laws enacted to protect the citizens of the United States. Speeches and rhetoric by current politicians regarding new laws are nothing more than an attempt to appease the public outcry following the latest tragedy.
- There are national polls taken every year regarding the 2nd Amendment. While only 25% of US citizens own a firearm(s), the polls average 75% in favor of the 2nd Amendment. That means that the 66% of US citizens who don’t own a firearm are still in favor of the 2nd Amendment. The Bill of Rights is just that important.
- Had the GCA, the NICS, and the NIAA been fully funded and implemented when they were enacted, those tragedies such as Columbine, Virginia Tech, Tucson, and so many others probably would not have happened.
- The number one responsibility of the President and Congress is to protect its citizens. I contend that through this deliberate lack of funding for these laws, the Government is not interested in protecting its citizens. This has been the case with every President and every Congress since 1934. Shame on them.
Finally, We the People do not trust our Government. This is a good thing. This fact is built into the very creation of how our Government works. The American democratic Republic is based on the reality that the Government works for the people, not the other way around. As a result, we fear any attempt at changes to our rights. If the Government takes away our 2nd Amendment rights, will our right to assembly be next?
The States Point of View
The Federalists really like the Constitution. It’s what gives the Federal Government power and credibility so naturally they would. The States like the Constitution too, especially the 10th Amendment which says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So the Federal Government passed the Gun Control Act (GCA) of 1968, which establishes the Federal Firearms License (FFL) System and all firearm sales made through an FFL are to be registered. Since the Federal Government did not prohibit the States from establishing their own laws regarding firearm registration, most States do not register firearm sales. If a State views the registration of firearms as an infringement (see 2nd Amendment) then they are within their rights to prohibit it. The State law supersedes the Federal law.
Then the Federal Government passed the Brady Handgun Violence Prevention Act (Brady) of 1993, which establishes the National Instant Criminal Background Check System (NICS) to be administered by the FBI. The Federal Government wants the States to submit the names of every person (within their State) who has a criminal record, who is under treatment for mental illness, and who has a history of drug abuse. Since the Federal Government did not prohibit the States from establishing their own laws regarding information about its citizens, most States do not provide that information to the NICS. Here are some of the problems that the States have with that law:
- The Federal Government doesn’t really define mental illness. We think of it as an illness that would be treated by a psychiatrist; depression, schizophrenia, etc. But isn’t mental illness an impairment of the brain? We certainly don’t want anyone handling a firearm that has a brain impairment. Some of the major types of disorders include: neurogenic diseases (such as Huntington’s disease and muscular dystrophy), developmental disorders (such as cerebral palsy), degenerative diseases of adult life (such as Parkinson’s disease, dementia, and Alzheimer’s disease), metabolic diseases (such as Gaucher’s disease), cerebrovascular diseases (such as stroke and vascular dementia), trauma (such as spinal cord, concussion, and head injury), convulsive disorders (such as epilepsy), infectious diseases (such as AIDS), and brain tumors. Over 50 million Americans suffer from these diseases. Do you include Asperger’s, mental retardation, or Autism? Where does it stop?
- Then there is the little thing called Physician-Patient privilege. Physician-Patient privilege is the right of a physician to refuse to testify in a trial or other legal proceeding about any statement made to him/her by a patient, on the basis that any communication between doctor and patient is confidential. A patient could sue the physician for damages if the doctor breaches the confidence by testifying. For these purposes, providing medical information to the NICS would be testimony.
- We all know that an alcoholic is someone who is addicted to alcohol and a drug addict is someone addicted to a drug. But an alcoholic that has not had a drink in many years is still classified as a “recovering alcoholic” just as a drug addict that has been straight for many years is a “recovering drug addict.” But the NICS wants the names of all people who have a history of drug addiction. Unless the individual has been arrested on a drug or alcohol charge, there would likely be no record of that addiction. Only clinics that specialize in the treatment of addicts would have that information and each State has different laws on how much information those clinics are allowed to divulge. Additionally, there are other types of addictions; eating, sex, gambling, shopping, and video games to name a few. Again, where does it stop?
- The States agree with its citizens in that they do not trust the Federal Government. No surprise there! And here is the big question all the States are asking:
If we give the Federal Government (FBI) all this information about our citizens for the purposes of the NICS, what is stopping the FBI from using that information in a way that was not intended?
There are States that have decided that they will not register any firearms, period. There are States that have decided that they will not provide any NICS information, period. There are States that refuse to do either one. There are States that both register firearms and provide NICS information. Then, mysteriously, there are States that refuse to register firearms but provide all the NICS information required or register firearms but provide no NICS information.
Here is what we are seeing. The 2nd Amendment prevents the Government from taking away a law-abiding citizen’s firearms. The 10th Amendment provides for the States to supersede Federal law in cases where the State law takes precedence. There are, however, laws that the States cannot supersede, for example the minting of currency or the raising of the Army. This leaves the American people with some choices;
- Convince all the States, one at a time, to abide by the GCA and the NICS or
- Make the GCA and NICS laws that cannot be superseded by the States.
- Pass yet another Act of Congress, in response to the latest tragedy, that is not funded and has little or no effect.
Either way, this will be a lengthy process. Now that you have more information, what do you think?I own a .22 caliber Anchutz Model 54 Olympic target rifle. There was a day when people thought I was pretty good with it. I earned a Lifetime Master competition status at the age of 18. I am not an NRA member and I shoot only at paper.
© J T Weaver, 01/31/2013