This is one of the best written Public Forum resolutions that has been produced.
It is a bit biased in favor of the Pro, as it is hardtop generate offensive reasons why background checks are bad, in spite of the difficulty in proving they will be especially effective.
In this essay, I will discuss the most important terms of the resolution, review the Pro arguments, and discuss the Con arguments. I do have some strong suggestions for offensive arguments, though they require a bit of creativity.
United States. The term “Untied States” obviously refers to this country, but it is important to note that in this resolution that it refers to an actor – The “United States” as the agent of action; the entity that should promote the background checks.
This is significant because there is a disagreement as to whether or not the “United States” in this context would mean the United States federal government or all of the state governments.
Note these two competing definitions –
McConnell, 1987, University of Chicago Law Review, Federalism: Evaluating the Founders’ Design, vol. 54, [Assistant Professor of Law, University of Chicago; Michael], p. 1489
U.S.Const. preamble. Note that the term “United States,” even under the Articles, referred to the confederacy rather than to the several states, and that every reference to the United States in the Constitution is to the federal government. See, e.g., U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution. . . are reserved to the States respectively . .
Family Guardian Fellowship 9 AN INVESTIGATION INTO THE MEANING OF THE TERM “UNITED STATES”, http://famguardian.org/subjects/Taxes/ChallJurisdiction/Definitions/freemaninvestigation.htm
“…as the collective name for the states which are united by and under the Constitution.” Constitution of the United States “United States***” “The several States which is the united States of America.” Referring to the 50 sovereign States, which are united under the Constitution of the United States of America XE “DEFINITIONS :United States of America” . The federal areas within these states are not included in this definition because the Congress does not have exclusive legislative authority over any of the 50 sovereign States within the Union of States. Rights are retained by the States in the 9th and 10th Amendments, and you are a “Citizen of these united States.” This is the definition used in the Constitution for the United States of America. We identify this version of “United States” with a three asterisks after its name: “United States***” throughout this article.
What the “United States” refers to as an actor is significant because there are disadvantages federal action to implement universal background checks that will be discussed later. The Pro can defend the states as actors, it will be easy to defeat these arguments.
Given the significance of this dispute, I have included many definitions on both sides of the debate in the release.
Should. “Should” is in many resolutions and is generally understood to mean “ought.”
Background checks. Background checks are simply conducted on individuals to make sure they don’t have a prior criminal or mental health condition that should prevent them from owning a gun.
Universal….all sales/transfer of ownerships. Currently, background checks are required in some states, but there are two things that make them not universal. First, they are not required in all states. Second, background checks are not required for all sales and transfer of ownership. Normally, background checks are only required for sales that are conducted at federally licensed gun dealers, not for private sales between individuals that can be conducted at many locations, including homes and gun shows.
There is good evidence that these private sales constitute 40% of sales.
Shane McCarthy, B.A., 2017, Thesis, Thesis Advisor: Adam Thomas, Ph.D., THE RELATIONSHIP BETWEEN UNIVERSAL BACKGROUND CHECK LAWS FOR FIREARM SALES AND RATES OF VIOLENT CRIME AT THE STATE LEVEL, https://repository.library.georgetown.edu/bitstream/handle/10822/1043958/McCarthy_georgetown_0076M_13603.pdf?sequence=1
Since the implementation of the Brady Handgun Violence Prevention Act in 1994 (hereafter known as the “Brady Act”), federal law has required that any individual who purchases a gun from a federally licensed dealer must undergo a background check, which is conducted through the FBI’s National Instant Criminal Background Check system, or “NICS” (Brady Act, 1993).1 Under this law, several categories of individuals are barred from purchasing firearms, including people who have been convicted of violent crimes, undocumented residents of the United States, individuals who have previously been committed to a mental institution, and individuals who have been dishonorably discharged from the armed forces (Ibid). Prior to the passage of the Brady Act, the records for conducting background checks were maintained by the individual states; with the new NICS system in place, state law enforcement has been able to access an expansive federal database and conduct more thorough checks. From the law’s implementation in 1994 to 2014, over 180 million background checks have been conducted and over 2.8 million attempted applications have been denied due to a failed check (Karberg et al., 2016). One of the limitations of the Brady Act is that its background check requirements only apply to gun sales conducted by federally licensed dealers. Outside of these dealers exists a large secondary, or private, market for firearms among individuals who do not meet the federal standard for a background check requirement. According to some estimates, about 40% of all gun sales in the U.S. are completed without a background check for the purchaser (Cook et al., 1995). The types of sales on this private market vary; while some guns are sold to family members, friends, or hunting partners, many are also sold at gun shows or over the internet by complete strangers. For a state to be considered to have “universal background checks” in place, it must have passed a state law expanding background check requirements beyond federally licensed dealers to include most private sales as well. These laws usually provide some exceptions for certain gun transfers, such as those between family members.
So, the significance in this resolution is that it requires the Pro to advocate for universal background checks at all points of sale or transfer of ownership. It does not require them to advocate for UBCS for temporary loans, but for any transfer of ownership, which would cover gifts to family members.
For sales done between private parties, the seller would simply be obligated to call a number to very that it was appropriate to transfer ownership of a gun to the purchaser.
The primary argument in favor of universal background checks is that those checks will reduce access to guns to those who are likely to use them to commit a crime.
Common figures place the number of annual gun deaths at approximately 33,000 –
Centers for Disease Prevention, May 2017, https://www.cdc.gov/nchs/fastats/injury.htm
All firearm deaths Number of deaths: 33,594
Deaths per 100,000 population: 10.5
And the number of guns in circulation is approximately 300 million (approximately one per person).
Since background checks will still permit the sale of the majority of guns, they obviously aren’t going to eliminate gun deaths, but there are arguments that they can make significant inroads.
First, a reasonable case can be made that many of the guns that are used in crimes are currently sold in the private gun market where they are not subject to background checks.
Law Center to Prevent Gun Violence, 2017, Universal Background Checks, http://smartgunlaws.org/gun-laws/policy-areas/background-checks/universal-background-checks/
By far the most dangerous gap in federal firearms laws today is the background check loophole. Although federal law requires licensed firearms dealers to perform background checks on prospective purchasers, it does not require unlicensed sellers to do so. An estimated 40% of all firearms transferred in the US are acquired from unlicensed sellers without a background check.1 According the US Department of Justice, because federal law fails to require background checks by every person who sells or transfers a gun—known as universal background checks—“individuals prohibited by law from possessing guns can easily obtain them from private sellers and do so without any federal records of the transactions.”2 “The private-party gun market,” one study observed, “has long been recognized as a leading source of guns used in crimes.”3 Although this loophole is frequently referred to as the “gun show” loophole, because of the particular problems associated with gun shows, it applies to all private firearm sales, regardless of where they occur.4 The internet has significantly increased illegal buyers’ ability to find sellers willing to transfer firearms to them without background checks. As of September 2013, about 67,000 firearms were listed for sale online from private, unlicensed sellers.5 29% of ads by private sellers on armslist.com (a popular website for firearm sales) were posted by high-volume private sellers who posted five or more ads over an eight-week period.6 According to an undercover investigation by the City of New York, 62% of private online firearm sellers agreed to sell a firearm to a buyer even after the buyer had told the seller that he or she probably could not pass a background check. When private sellers don’t run background checks, people known to be dangerous can easily obtain guns, often with deadly consequences. For example, in 2012, a gunman killed three people, including his wife, and injured four others at a spa in Wisconsin, after buying a gun through a private seller he found online. The shooter was prohibited from purchasing guns due to an active domestic violence restraining order against him, but was able to buy the gun anyway because the seller was not required to run a background check.8 In a 2007 report, the International Association of Chiefs of Police (IACP) stated that, because individuals who fail a background check can easily access firearms from unlicensed sellers, “Guns are far too easily acquired by prohibited possessors, and too often end up being used in gun crime and gun violence.”
When background checks are used many sales are denied.
Joshua Horowitz, Coalition to Stop Gun Violence (CSGV), January 20, 2013, Testimony, https://www.judiciary.senate.gov/imo/media/doc/013013RecordSub-Leahy.pdf
Universal background checks represent another simple yet meaningful intervention that research indicates could reduce gun violence. In 1994, the Brady Act established the National Instant Background Check System (NICS) and mandated that all federally licensed firearm dealers perform a background check before selling a firearm. Since the NICS went into effect in 1998 there have been 161,836,595 checks performed and 996,558 federal denials (FBI 2013). This denial number does not include the hundreds of thousands of persons denied by the states that maintain their own databases for state prohibitions (known as point of contact states) (Bowling 2010, 2). Meanwhile, surveys estimate that 40% of firearm sales are made by private individuals, who are not required to conduct background checks under federal law (Wintemute 2013b, 96). These private transactions create an opportunity for criminals and other prohibited persons to purchase firearms without accountability or oversight (Cook and Ludwig 2013, 28). Garen Wintemute, a professor at the University of California-Davis School of Medicine, has examined California state law, which not only mandates universal background checks on all gun sales, but also prohibits individuals who have violent misdemeanor convictions from purchasing a firearm (Cook and Ludwig 2013, 29; Wintemute 2013a, 85). He found evidence that universal background checks decrease the criminal acquisition of guns through private transactions in California (Wintemute 2013a, 85). Interestingly, Wintemute also found that these regulations have not harmed the gun industry in California (Wintemute 2013a, 90). Finally, Wintemute highlights that of the 927 persons who sought to purchase handguns in his study, “denial appears to reduce risk for new criminal activity among those persons who are denied [through a criminal background check]” (Wintemute 2013a, 85). Ensuring that all firearm transactions include a background check would also make it easier for law enforcement to identify the original purchasers of firearms that are used in crimes, including straw purchasers and firearm traffickers (Wintemute 2013b, 104). According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), “about 85% of criminal possessors [of firearms] were not the [original] retail purchaser” (Webster and Vernick et al. 2013, 110). By allowing ATF to accurately trace crime guns and prosecute corrupt firearms sellers, we can curtail the criminal acquisition of firearms (Barga and Gagliardi 2013, 150). Wintemute also investigated straw purchases at gun shows in California and in neighboring states and found that where universal background checks were not required, straw purchases “were six times as common” (Wintemute 2013b, 103). Finally, universal background checks will only be successful if there are strong federal incentives for states to submit disqualifying records to the FBI’s NICS database. According to Mayors Against Illegal Guns, a total of ten states have yet to submit any disqualifying mental health records to NICS (Mayors Against Illegal Guns, 2013). This suggests that measures need to be taken to alleviate the barriers that make state compliance difficult.
Background checks prevent dangerous people from gaining access to firearms
Second, if the system applies to every state, guns sold in states without background checks cannot make it into states with background checks. This state to state leakage is a frequent criticism of current background checks.
The economist, November 2015, Why America doesn’t have universal background checks for gun buyers, https://www.economist.com/blogs/economist-explains/2015/11/economist-explains-0
As the NRA and other pro-gun lobbies seem to be able to intimidate Congress to an extent that it won’t try again to pass a law to tighten gun legislation any time soon, several states passed their own stricter gun laws. New York, California, Massachusetts, Illinois, Rhode Island and Maryland have some of the strictest gun laws in the country. Several of these states require background checks at private sales. And even though studies show that the rates of murders and suicides are lower in states with strict gun laws, these states could be doing even better if it weren’t for their neighbours with lax gun laws. Illinois, for instance, borders Wisconsin and Indiana, two states with hardly any restrictions on gun sales. In Chicago, which has especially restrictive gun laws, more than half of the guns confiscated by police come from out-of-state. No wonder then that Chicago’s police chief is one of the most vocal advocates of universal nation-wide background checks for gun buyers.
Research indicates that a universal, federal law would reduce gun violence
Eureka News Alert, March 10, 2016, The Lancet: Universal Background checks for purchasing guns and ammunition could substantially cut gun deaths in the USA, https://www.eurekalert.org/pub_releases/2016-03/tl-tlu030916.php
A nationwide study analysing gun-control laws in the USA has found that just nine of the 25 state laws are effective in reducing firearm deaths. The research, published in The Lancet, suggests that if all US states were to expand the three laws that have the strongest effect on gun deaths–universal background checks for purchasing guns and ammunition, and firearm identification –the national rate of gun deaths could be cut by over 90%. “Our study is the first to examine the impact of specific gun laws on gun-related deaths across the USA while taking account of a range of other factors such as gun ownership and unemployment” says lead author Dr Bindu Kalesan from Boston University, Boston, USA. “The findings suggest that very few of the existing state gun-control laws actually reduce gun deaths, highlighting the importance of focusing on relevant and effective gun legislation. Background checks for all people buying guns and ammunition, including private sales, are the most effective laws we have to reduce the number of gun deaths in the USA,”. More than 90 people are killed every day by guns in the USA. In 2010, 31672 gun deaths were recorded, equivalent to 10.1 deaths per 100000 people. Hawaii recorded the lowest rate of gun deaths (45 deaths per year) at 3.31 per 100000 citizens, while Alaska (144) topped the table at 20.3 per 100000 (see appendix table 2). The link between state levels of gun ownership and gun deaths is well established. But less is known about the effectiveness of existing gun laws. US states have introduced a range of gun laws to strengthen or deregulate the main federal gun control law, the Brady Law, which requires background checks for gun purchases from a federally-licensed dealer. However, around 40% of all gun sales in America are estimated to be private transactions that do not require background checks. In this study, Dr Kalesan and colleagues examined the relationship between gun-control laws and recorded gun deaths across all US states using data from the Center for Disease Control and Prevention’s Injury Statistics Query and Reporting System. They used a model fitted with data on 25 different gun-control laws in each state (table 1), and rates of gun deaths, gun ownership, gun export (a proxy of the amount of firearms in each state), non-firearm homicides (a measure of crime in each state), and unemployment to calculate which particular gun laws might impact firearm deaths across the USA in 2010. The findings show that nine laws are associated with a reduced likelihood of gun deaths, nine with increased gun deaths, and seven did not show any conclusive association (figure page 4). For example, laws that restrict firearm access to children (eg, locks and age restrictions) were shown to be ineffective, while stand-your-ground laws that allow an individual to use deadly force in self-defence significantly increased gun-related deaths. These findings persisted even after removing the effect of other factors that might affect gun deaths such unemployment and gun exports. The model predicts that a federal law expanding background checks for all gun purchases could more than halve the national gun death rate from 10.35 to 4.46 per 100000 people (57% reduction). Similarly, background checks for all ammunition purchases could cut overall gun deaths to 1.99 per 100000 (81% decrease), and firearm identification could reduce deaths to 1.81 per 100000 (83% reduction) (table 3 page 6) . Federal implementation of all three laws could reduce national overall gun deaths to 0·16 per 100 000 (over 90% reduction). However, the authors caution that they expect the fall in deaths to be a long-term effect that could take many years to achieve.
Third, there is good statistical evidence (PF debaters love statistics!) that indicates that background checks will reduce gun violence in a number of categories.
Center for American Progress, 2015, Background checks for all gun sales, https://cdn.americanprogress.org/wp-content/uploads/2015/02/BackgroundChecks-factsheet3.pdf
Strong gun laws—including universal background checks—effectively reduce gun violence:
- Background checks effectively prevent prohibited people from buying guns. Since November 1998, roughly 2.4 million gun sales to prohibited purchasers have been prevented because of background checks.3
- States that require background checks for all handgun sales have lower levels of gun violence compared with states that do not require background checks:
- 46 percent fewer women are shot and killed by their intimate partners.
- 48 percent fewer law enforcement officers are shot and killed with handguns.
- 48 percent fewer gun suicides are committed.4
- After Missouri repealed a law in 2007 that required background checks for all handgun sales, the state’s murder rate went up by 14 percent, and the firearm homicide rate increased by 25 percent.5
- The 10 states with the weakest gun laws collectively have an aggregate level of gun violence that is more than twice as high as the 10 states with the strongest gun laws.
What is important for Pro debaters to emphasize is that universal background checks will further reduce (though not eliminate) gun violence. These statistics account for the fact that many criminals will still be able to get guns through a variety of means, but argue that there still will be a decrease in the total number of gun deaths.
Additional evidence that answers common objections to the solvency of UBCs is included in the release. There is also evidence about how background checks can reduce certain categories of gun violence, including domestic violence, suicidies, and mass shootings.
Beyond gun deaths, Pro teams may also wish to claim advantages about soft power – the overall credibility/likability of a country.
The US does have the highest rates of gun violence in the world, and by a large margin —
Diedre Philips, June 15, 2017, US News, US a World Outlier in Firearms, https://www.usnews.com/news/best-countries/articles/2017-06-15/us-is-global-leader-in-gun-violence-and-ownership
Gun-related violence killed three people in the U.S. every two hours in 2015, according to data collected by the Global Health Data Exchange. Despite a rather steady decline in gun deaths in the past decade, firearms remain a significant issue for the country, evidenced this week by the shooting at a U.S. congressional baseball practice in Virginia and a separate shooting at a San Francisco package delivery store that left four people dead. The death rate due to firearms in the U.S. is nearly double the global average, according to the Global Health Data Exchange. Research published in the American Journal of Medicine last year also found that Americans are 25 times more likely to be killed by firearms than people in other developed countries.
Among countries ranked by total gross domestic product, rate of death by firearm assaults in the U.S. was more than 10 times higher than the next four highest countries combined, according to data from the Global Burden of Disease. Those four countries are China, Japan, Germany and the U.K
This can undermine our soft power.
Nye, Professor of International Relations, Harvard, ‘04 [Joseph, Soft Power: The Means to Success in World Politics, pages 13-14]
Government policies at home and abroad are another potential source of soft power. For example, in the 1950s racial segregation at home undercut American soft power in Africa, and today the practice of capital punishment and weak gun control laws undercut American soft power in Europe. Similarly, foreign policies strongly affect soft power. Jimmy Carter’s human rights policies are a case in point, as were government efforts to promote democracy in the Reagan and Clinton administrations. In Argentina, American human rights policies that were rejected by the military government of the 1970s produced considerable soft power for the United States two decades later, when the Peronists who were earlier imprisoned subsequently came to power. Policies can have long-term as well as short-term effects that vary as the context changes. The popularity of the United States in Argentina in the early 1990s reflected Carter’s policies of the 1970s, and it led the Argentine government to support American policies in the UN and in the Balkans.
Answering Con Arguments
Gun freedoms. The basic objection from the National Rifle Association (NRA, the nation’s largest advocate for gun rights) is that it would undermine the freedom to own guns.
The link to this argument from Background Checks is obviously a bit specious, but the NRA claims that UBCs will lead to a gun registration and that if people have to register guns, those guns will eventually be taken away.
There are a number of answers to this argument, but the strongest one is that it will simply not lead to a gun registry.
Sara Trumble, February 14, 2013, Why Universal Background Checks Can’t Lead to Federal Gun Registry, http://www.thirdway.org/memo/why-universal-background-checks-cant-lead-to-a-federal-gun-registry
They were for it before they were against it. In 1999, Wayne LaPierre of the National Rifle Association testified before Congress urging an instant background check for all private gun sales.1 In 2013, the same Wayne LaPierre representing the same NRA argued the opposite.2 Mr. LaPierre is now raising the specter of a national gun registry if universal background checks became law.3 In particular, the NRA argues that the Obama Administration could simply convert such checks into a registry through executive action. In this memo, we make the practical, legal, and political case for why this won’t and can’t happen. The Practical Reasons The very process and operation of the background check system intentionally makes it impossible for the federal government to use those records to create a registry of gun owners or the guns they purchase. Right now, when a person buys a gun at a federally licensed dealer (where a background check is already required), the first thing the store does is to give the buyer a blank copy of ATF Form 4473. The buyer fills in his name, address, and birthday, and affirms that he is not prohibited from having a gun and is not buying it for someone else.4 The store clerk takes the form, looks at the buyer’s photo ID, and then either picks up the phone to call the National Instant Check System (NICS) or logs onto their secure website. It takes an average of 7 seconds for someone at NICS to answer the phone,5 and the gun dealer reads the name and date of birth from the form or types it into the computer. Typically, within a few minutes NICS can search its database to make sure the buyer is not prohibited from owning a gun. If no records are found, the dealer is told he can proceed with the sale.6 Here’s what happens next: The buyer leaves the store with the firearm. The NICS system destroys all records of running a check on that buyer within 24 hours.7 On the 4473 form, the dealer marks that the buyer passed the NICS check, writes down the transaction number and the serial number of the gun that was sold, and files it away, where it must be kept in a paper file by law for 20 years.8 Thus, there is only one official record of the sale, and it resides in the individual gun dealer’s files. Currently, there are approximately 59,000 gun dealers across all 50 states,9 each of which keeps individual files of the approximately 16 million 4473 forms that are filled out every year.10 There are only four ways the government can ever even see this record: during a compliance inspection of dealer records, during an ongoing criminal investigation, if your gun is found at a crime scene, or if the gun store goes out of business. Let’s look at this in a practical context: Once every 12 months, ATF is authorized to inspect a gun dealer’s records to make sure they are in compliance with federal law (though such an audit is rarely performed that regularly—given current funding and staffing levels, it would take ATF 22 years to audit every dealer once11). Federal agents do not take the records with them unless they show evidence of a crime—they simply ensure the dealer is keeping them as required by law. This is an in-house review.12 Law enforcement can gain access to a dealer’s records either with a warrant or as part of an ongoing criminal investigation, but the dealer keeps possession of the records, and law enforcement may only inspect and examine (not seize) them, unless they contain material evidence of violation of the law.13 If the gun is found at a crime scene, the police may trace the gun by calling the manufacturer and reading them the serial number. The manufacturer will tell the police to which wholesaler they sold the gun, and police will then contact that wholesaler to get the name of the gun store to which the gun was sold. If police can trace a gun back to the gun dealer who sold it, the dealer can go into their files and tell the police who purchased the gun.14 But since 9 out of 10 traced crime guns were wielded by someone other than the original buyer, this information is not always very helpful to police even when they can find it.15 If the gun store closes within 20 years of a firearm purchase, the dealer will send past 4473 forms to a government warehouse.16 Currently, the warehouse contains piles and piles of paper records, each page of which has to be individually photographed and uploaded as an image into a computer database. (Think microfiche, for those old enough to remember those days of searching for a needle in a haystack.) Because the database holds only images, it cannot be searched, and the only way to find a record of a specific gun or specific purchaser is to read through every single record, one at a time.17 It is, by intentional legal design, the most inefficient and diffuse record-keeping system in the government. The universal background check proposals currently before Congress would place the exact same restrictions on private sales, and these sales would mostly be conducted through the very same licensed firearms dealers. Given the way the recordkeeping system works, it would be impossible to create a federal database of gun owners based on background check records. If background checks are made universal, even more 4473 forms will be filled out every year, and they will be kept by each individual seller or by the dealer who helped them access the NICS system. There will still only be one record of a private gun sale, and as long as the gun store stays open or the private seller is alive, the government will never have access to it. Even if the form is eventually sent to the federal warehouse and entered into its 4473 database, the information will still be unsearchable and fail to serve in any way as a registry of gun owners. And the record of the background check itself would still be destroyed within 24 hours. Given the operation of the system, there is simply no practical way to use background checks to create a federal registry of gun owners. The Legal Reasons Not only is it not practically possible to create a federal registry of gun owners, it would violate multiple federal laws to do so: Federal law is very clear on the subject of a federal registry. It reads: No such rule or regulation…may require that 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.18 Federal law further states that a gun dealer or collector can never be required to submit their records to the federal government, unless it is during an annual inspection, part of a criminal investigation, for the purposes of tracing a gun used in a crime, or because the dealer is going out of business.19 Federal regulations mandate that all federal background check records must be destroyed with 24 hours for everyone who passes the check and is allowed to purchase a gun.20 Thus, it would be not only impractical but also illegal to create any sort of federal firearms registry under both the U.S. Code and the Code of Federal Regulations. A universal background check statute would not supersede, repeal, or in any way limit or roll back these laws, meaning it could not be used to create any such federal registry. The Political Reasons Finally, a registry would also be a political nonstarter. Even policymakers on the far left are not calling for a federal registry of gun owners, and if anyone were to do so, the proposal would never even get a vote, much less have a chance of passage. Perhaps that is why registration is not on anyone’s agenda—except opponents of gun safety measures. The President did not propose registration as a policy solution.21 Senate Judiciary Chairman Patrick Leahy (D-VT) has entertained no hearings on registration. The Democratic House Task Force did not recommend registration.
Additionally, the impact claim that is usually made related to this is that guns are needed to protect the US against US government tyranny, but this is a ridiculous argument, as the US government has drones, tanks, grenades, etc. People armed with rifles is sort of useless.
Michael Schermer, 10-5-2017, New York Times, Guns Aren’t a Bulwark Against Tyranny:. Tue Rule of Law Is, https://www.nytimes.com/2017/10/05/opinion/gun-rights-vegas-massacre.html
Gun-rights advocates also make the grandiose claim that gun ownership is a deterrent against tyrannical governments. Indeed, the wording of the Second Amendment makes this point explicitly: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” That may have made sense in the 1770s, when breech-loading flintlock muskets were the primary weapons tyrants used to conquer other peoples and subdue their own citizens who could, in turn, equalize the power equation by arming themselves with equivalent firepower. But that is no longer true. If you think stock piling firearms from the local Guns and Guitars store, where the Las Vegas shooter purchased some of his many weapons, and dressing up in camouflage and body armor is going to protect you from an American military capable of delivering tanks and armored vehicles full Navy SEALs to your door, you’re delusional. The tragic incidents at Ruby Ridge, in Idaho, and Waco, Tex., in the 1990s, in which citizens armed to the teeth collided with government agencies and lost badly, is a case study for what would happen were the citizenry to rise up in violence against the state today. And in any case, if you’re having trouble with the government, a lawyer is a much more potent weapon than a gun. Politicians and police fear citizens armed with legal counsel more than they do a public fortified with guns. The latter they can just shoot. The former means they have to appear before a judge. A civil society based on the rule of law with a professional military to protect its citizens from external threats; a police force to protect civilians from internal dangers; a criminal justice system to peacefully settle disputes between the state and its citizenry; and a civil court system to enable individuals to resolve conflicts nonviolently — these institutions have been the primary drivers in the dramatic decline of violence over the past several centuries, not an increasingly well-armed public. States reduce violence by asserting a monopoly on the legitimate use of force, thereby replacing what criminologists call “self-help justice,” in which individuals settle their own scores, often violently, such as drug gangs and the Mafia. Homicide rates, for example, have plummeted a hundredfold since 14th-century England, in which there were 110 homicides per 100,000 people a year, compared with less than one per 100,000 today. Similar declines in murder rates have been documented in Germany, Switzerland, Italy, the Netherlands and Scandinavia. (American homicide rates are around five times higher than in Europe, owing primarily to the deadly combination of guns and gangs.) There’s no question that tyrannical states have abused the freedom of their citizens. But it is no longer realistic to think that arming citizens to the teeth is going to stop tyranny should it arise. Far superior are nonviolent democratic checks and balances on power, constitutional guardians of civil rights and legal protections of liberties.
Deterrence. One of the two most common arguments in favor of gun ownership is that individuals need guns for self-defense. In the context of UBCs, this is difficult to win because UBCS just stop known criminals from getting guns. Some argue, however, that UBCS make it more difficult for someone seeking self-defense to get a gun in time, but generally background checks happen very quickly.
There are also substantive answers to the claim, including arguments that guns are more likely to be used in criminal activity than in self-defense.
Michael Shermer is the publisher of Skeptic magazine, a presidential fellow at Chapman University and author of the forthcoming book “Heavens on Earth., New York Times, Guns Aren’t A Bullwark Against Tyranny, The Rule of Law Is, https://www.nytimes.com/2017/10/05/opinion/gun-rights-vegas-massacre.html
Stories about the use of guns in self-defense — a good guy with a gun dispensing with a bad guy with a gun — are legion among gun enthusiasts and conservative talk radio hosts. But a 1998 study in The Journal of Trauma and Acute Care Surgery, to take one of many examples, found that “every time a gun in the home was used in a self-defense or legally justifiable shooting, there were four unintentional shootings, seven criminal assaults or homicides and 11 attempted or completed suicides.” That means a gun is 22 times more likely to be used in a criminal assault, an accidental death or injury, a suicide attempt or a homicide than it is for self-defense. A 2003 study published in the journal Annals of Emergency Medicine, which examined gun ownership levels among thousands of murder and suicide victims and nonvictims, found that gun-owning households were 41 percent more likely to experience a homicide and 244 percent more like to experience a suicide. The Second Amendment protects your right to own a gun, but having one in your home involves a risk-benefit calculation you should seriously consider.
If the self-defense argument were true, the US would be the safest society in the world, but it is the most violent.
John Donohue is C Wendell and Edith M Carlsmith Professor of Law at Stanford University, August 27, 2015. Ban guns, end shootings? How the evidence stacks up from around the world, http://www.cnn.com/2015/08/27/opinions/us-guns-evidence/index.html
I’ve been researching gun violence — and what can be done to prevent it — in the U.S. for 25 years. The fact is that if NRA claims about the efficacy of guns in reducing crime were true, the U.S. would have the lowest homicide rate among industrialized nations instead of the highest homicide rate (by a wide margin). The U.S. is by far the world leader in the number of guns in civilian hands. The stricter gun laws of other “advanced countries” have restrained homicidal violence, suicides and gun accidents — even when, in some cases, laws were introduced over massive protests from their armed citizens.
Racism. As will be discussed in the Con section, one of the stronger arguments against enforcing UBCs is that enforcement is racist – that the enforcement of the law will be targeted against minorities, particularly blacks and Hispanics. There is also a related argument that minorities need guns to defend themselves, as there is not enough police protection in poor, minority areas.
There are a number of answers to this argument included in the release, but it is critical to answer both links – it is important to argue that the laws themselves are not racist and that it is not good for minorities shouldn’t rely on guns to defend themselves.
Ladd Everitt, September 16, 2010, Debunking the “Gun Control is Racist” Smear, https://wagingnonviolence.org/feature/debunking-the-gun-control-is-racist-smear/
Forget for a moment that the two propositions examined in this article seem to be contradictory (i.e., If gun control laws had targeted blacks for disarmament, how would they have been able to successfully engage in armed resistance against White terrorists during Reconstruction and the civil rights movement?) and let’s evaluate them separately. For starters, the “gun control is racist” argument, working from the McDonald decision, makes the assumption that there was no gun control before the Reconstruction period. Nothing could be further from the truth. As Justice John Paul Stevens noted in his dissent in McDonald: From the early days of the Republic, through the Reconstruction era, to the present day, States and municipalities have placed extensive licensing requirements on firearm acquisition, restricted the public carriage of weapons, and banned altogether the possession of especially dangerous weapons, including handguns … After the 1860’s just as before, the state courts almost uniformly upheld these measures. These laws were enacted to provide for the public’s safety, not to discriminate against any particular minority, and were enforced uniformly against all state residents. Additionally, regarding the argument that the 14th Amendment was somehow focused on gun rights, Stevens was not persuaded: Consider, for example, that the text of the Fourteenth Amendment says nothing about the Second Amendment or firearms; that there is substantial evidence to suggest that, when the Reconstruction Congress enacted measures to ensure newly freed slaves and Union sympathizers in the South enjoyed the right to possess firearms, it was motivated by antidiscrimination and equality concerns rather than arms-bearing concerns per se … Apart from making clear that all regulations had to be constructed and applied in a nondiscriminatory manner, the Fourteenth Amendment hardly made a dent. This is not to say that there were not discriminatory gun control laws at this time—and other times—in our history that specifically targeted blacks. But the fact is that for most of our 234 years, the entire U.S. legal system has been arrayed against blacks. Using gun rights activists’ weak logic, one could claim that virtually any type of law has racist origins: property laws, marriage laws, tort laws, contract laws, etc., etc. Just because there was once racial inequity in certain, long-abolished laws, however, does not mean we should abandon all efforts at government regulation. Rebellion and Retribution Did lack of access to firearms play a unique role in preventing blacks from vindicating their rights prior to the civil rights movement? That seems to be the obvious inference of statements like, “The former Confederate states’ successful efforts to restrict gun ownership had disastrous long-term consequences for black Americans’ life, liberty and pursuit of happiness.” The problem is that history is replete with examples of African-American communities being severely punished and repressed after they did take up arms against white terrorists. Take, for example, the admission by David Rittgers: Confronted with the prospect of armed freedmen who could stand up for their rights, states across the South instituted gun-control regimes that took away the ability of blacks to defend themselves against the depravity of the Klan. Then there are Eli Cooper and Nat Turner, two African-Americans cited by Justice Thomas in his opinion in McDonald. Thomas cites the remark that Cooper is alleged to have made in Georgia in 1919: “[The] Negro has been run over for 50 years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.” What he doesn’t tell us is that this statement was apparently the provocation that caused 20 white men to attack Cooper in his home with axes and knives. Nor does Thomas explain how a firearm would have preserved Cooper’s life in such a situation. Finally, the same newspaper article cited by Thomas that mentions Cooper also tells the story of Berry Washington, a black man who was lynched in the same town as Cooper mere months earlier. Washington took up arms against a White terrorist, shooting and killing a man who was about to rape his 16-year-old daughter. After surrendering to the local sheriff, Washington was pulled out of jail by a mob and lynched. Thomas also refers to Nat Turner, a Virginian slave and preacher who staged a rebellion to seek God’s judgment against the institution of slavery. The revolt began on the night of August 13, 1831, when Turner and six of his followers went from house to house killing slave owners and their families with a hatchet and a broad axe. At each house, the rebels freed any slaves they encountered and stocked up on more weapons. Eventually, his force numbered 60 men—all armed with guns, axes, swords and clubs. The revolt lasted nearly 10 days and 57 whites were killed before the group was pushed back by militia and federal forces. Although Turner escaped, he was caught two months later, immediately convicted, and hanged. In Virginia, the retribution was brutal: A reign of terror followed in Virginia. Labor was paralyzed, plantations abandoned, women and children were driven from home and crowded into nooks and corners. The sufferings of many of these refugees who spent night after night in the woods were intense. Retaliation began. In a little more than one day 120 Negroes were killed … One individual boasted that he himself had killed between ten and fifteen Negroes … Negroes were tortured to death, burned, maimed and subjected to nameless atrocities. Thomas himself tells us the broader consequences of Turner’s exercise of “Second Amendment rights”: “The fear generated by these and other rebellions led southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense.” The Colfax Massacre is another tragedy frequently cited by the majority in McDonald. Colfax actually began as a civil rights success story. During the Reconstruction period, African-Americans in the small Louisiana town elected officeholders, held important public positions, and even organized a state militia company led by a black man, William Ward. Eventually, however, their unit was demobilized after moving too aggressively to arrest white terrorists. A withdrawal of federal government support set the stage for the massacre on April 13, 1873, when between 62-81 African Americans—more than half of them armed with firearms—were slaughtered by a larger, better-equipped force of whites. As my boss, CSGV Executive Director Josh Horwitz, and Casey Anderson put it, according to gun rights activists: …the collapse of Reconstruction—and every tragic consequence that followed—could have been avoided if the newly freed slaves had had access to firearms. This explanation of events is a fantasy. It is easy…to identify incidents where the victim of racist violence might have defended themselves more effectively if they had been armed with guns. The idea that white racists could have been kept in check by ensuring widespread access to firearms among black southerners, however, is absurd. In fact, the American experience during and after Reconstruction illustrates that the…premise…that private ownership of guns safeguards individual rights against tyranny of the majority is exactly backward in explaining the relationship between private force and state power in protecting individual rights … Not only is the claim that gun rights could have stopped the Jim Crow system a falsehood, but it covers up the even more important insight that [this argument] is a continuation of a concerted effort, born and nurtured in the antebellum South, to limit the federal government’s effectiveness in protecting the democratic rights of the most vulnerable Americans. I can’t help but think of Lifetime National Rifle Association (NRA) Member Rand Paul advocating for the repeal of a section of the 1964 Civil Rights Act and stating that gun carriers should be a protected class like minorities. Nor could “Reclaim the Dream” rally organizer Rev. Al Sharpton when he recently referred to Paul while noting that King’s life work was conducted “for the precise purpose of pushing for increased federal action and involvement to nullify all discriminatory state and local practices.” “Soul Force” It is clear that armed resistance—while often noble and heroic—did little to vindicate the rights of African Americans during and immediately after Reconstruction. Is there any evidence it was more effective in the 20th century when the civil rights movement became a national cause? The leading proponent of the “armed resistance won the civil rights movement” idea is Dr. Lance Hill, the Executive Director of the Southern Institute for Education and Research at Tulane University and the author of The Deacons for Defense: Armed Resistance and the Civil Rights Movement. In his book, Hill gives primacy to the role of the Deacons for Defense and Justice, a group that wielded guns against white terrorists and provided armed guards for nonviolent protests in certain local communities in the South from 1964-1968. Hill’s central thesis is that: Nonviolence unquestionably defined the black freedom movement from 1954-1963 … But by the end of 1962 Martin Luther King and the more militant nonviolent organizations had fallen victim to state repression and terrorism. The Student Nonviolent Coordinating Committee (SNCC), [Congress of Racial Equality] CORE, and Southern Christian Leadership Conference (SCLC) had all failed to secure local reform, voting rights, or protective federal legislation … [The Deacons’] willingness to retaliate against Klan violence ultimately forced the federal government to enforce the Civil Rights Act and the Bill of Rights, assert federal supremacy, and destroy two major pillars of white supremacy—local police repression and Klan terror. The problems with Hill’s argument are obvious. The Deacons were (and remain) a little-known group that had no discernible impact on the national civil rights movement. The group did not even form until the summer of 1964 in Jonesboro, Louisiana. This was after Brown v. Board of Education; after Rosa Parks refused to leave her seat on a public bus in Montgomery, Alabama; after federal troops integrated Little Rock High School; after student sit-ins were initiated at lunch counters across the Deep South; after the “Freedom Riders” boarded buses to test desegregation laws; after the University of Mississippi was integrated; after a national television audience watched “Bull” Connor turn fire hoses and police dogs on demonstrators in Birmingham, Alabama; after more than 200,000 attended the historic March on Washington; after the 24th Amendment abolished the poll tax; and just as President Johnson was signing the Civil Rights Act into law with Dr. Martin Luther King, Jr. looking on. It is difficult to find any historians outside of Hill who view the Deacons or other armed groups as the engine behind the great achievements of the Civil Rights Movement. Howard Zinn, in A People’s History of the United States, concluded, “King’s stress on love and nonviolence was powerfully effective in building a sympathetic following throughout the nation, among whites as well as blacks.” Peter B. Levy, author of The Civil Rights Movement, wrote: For many Americans, the image of Connor’s German shepherd dogs biting at the limbs of peaceful protestors became a symbol of the viciousness and ugliness of the southern way of life. Polls showed an outpouring of support for King; letters and telegrams poured into the White House expressing support for the goals of the movement… It took the assassination of John F. Kennedy, brutal assaults against nonviolent protesters in Birmingham, Selma, and elsewhere, and a massive lobbying effort to gain passage of [the Civil Rights Act and Voting Rights Act]. Journalist/author Charles Lane, reflecting back on the Colfax Massacre, wrote, “The revolutionary new ingredient was nonviolence. The dignified resistance of Martin Luther King, Jr.’s legions succeeded where William Ward and P.B.S. Pinchback had failed.” King understood that white supremacists were the only winners when blacks resorted to violence. “The plain, inexorable fact was that any attempt of the American Negro to overthrow his oppressor with violence would not work,” he said. “The courageous efforts of our own insurrectionist brothers, such as Denmark Vesey and Nat Turner, should be eternal reminders to us that violent rebellion is doomed from the start. Anyone leading a violent rebellion must be willing to make an honest assessment regarding the possible casualties to a minority population confronting a well-armed wealthy majority with a fanatical right wing that would delight in exterminating thousands of black men, women, and children.” “And when it was all over,” King noted, “the Negro would face the same unchanged conditions, the same squalor and deprivation.” From his jail cell in Birmingham, King laid out his belief that, “There is the more excellent way of love and nonviolent protest.” Why did nonviolent protest succeed where armed rebellion had failed? “The social tool of nonviolent resistance…was effective in that it had a way of disarming the opponent,” King wrote. “It exposed his moral defenses. It weakened his morale, and at the same time it worked on his conscience. It also provided a method for Negroes to struggle to secure moral ends through moral means… The aftermath of nonviolence is the creation of the beloved community, so that when the battle is over, a new relationship comes into being between the oppressed and the oppressor.” Even after his home was bombed in Montgomery, King told blacks: “Don’t get your weapons. He who lives by the sword will perish by the sword. Remember that is what God said. We are not advocating violence. We want to love our enemies. I want you to love our enemies. Be good to them. Love them and let them know you love them.” King could see that there was only one path to freedom for African-Americans: We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force. The millions of African-Americans who engaged in nonviolent action to obtain their rights as democratic citizens during the civil rights movement rose to such “majestic heights” time and time again. The Target Audience In a Pew poll taken last year, an overwhelming majority of blacks, 72%, said it was more important to control gun ownership than to protect the right to own guns. Only 20% said that protecting the right to own guns was more important. There’s a good reason why few African-Americans associate guns with “freedom” and “liberty.” The national U.S. homicide rate is 5.3 per 100,000 people. Among blacks, it’s 20.9 per 100,000. That’s four times the national rate and seven times the white rate. In 82% of black-victim homicides in which the fatal weapon can be identified, it’s a gun. And 73% of those gun deaths are inflicted by handguns. Charles Lane has said that, “Firearms pose threats to modern-day urban dwellers—crime, suicide, accidents—that may outweigh any self-defense they provide. Unlike 19th-century rural Americans, we can call on professional police.” Otis McDonald might not agree, but certainly other African-Americans in his community do. Annette Holt, whose 16 year-old son was shot and killed on a Chicago school bus while shielding a fellow student from harm, called the McDonald v. Chicago decision “a slap in the face to all of us who have lost children to gun violence.” Then there is the Chicago City Council, which voted unanimously to approve the city’s strict, post-McDonald gun laws. Robert Farago was blunt in his assessment: “Not to put too fine a point on it, Chicago’s new handgun-licensing laws are inherently racist.” NRA CEO Wayne LaPierre ranted about “defiant city councils” that seek to “nullify” McDonald with regulations that are akin to “the poll tax or the literacy test.” Both men failed to mention that 20 out of the Chicago City Council’s 50 members are African-American. One has to wonder if the tragic irony of the McDonald decision was lost on the Supreme Court’s conservative majority and pro-gun activists. “[The Second Amendment] now is being used to help protect a black Chicago man from local gangbangers,” Clarence Page wrote. Those gangbangers aren’t white terrorists from days gone by. In many cases, they’re black kids with sophisticated weaponry courtesy of a deliberate marketing effort by firearm manufacturers. The Bureau of Justice Statistics has reported that, between 1976 and 2005, 94% of black homicide victims were killed by blacks. I Know You Are, But What Am I? Could gun rights activists’ attempts to paint those who advocate for gun control as racist be the result of a guilty conscience? Gun lobby leaders are certainly no strangers to questionable comments about race. In 1990, NRA Board Member Ted Nugent told the Detroit Free Press magazine that: …apartheid isn’t that cut and dry. All men are not created equal. The preponderance of South Africa is a different breed of man. I mean that with no disrespect. I say that with great respect. I love them because I’m one of them. They are still people of the earth, but they are different. They still put bones in their noses, they still walk around naked, they wipe their butts with their hands … These are different people. You give ‘em toothpaste, they f***ing eat it. One year later, another NRA Board Member, Jeff Cooper, commented on gun homicides in Los Angeles in Guns & Ammo magazine: The consensus is that no more than five to ten people in a hundred who die by gunfire in Los Angeles are any loss to society. These people fight small wars amongst themselves. It would seem a valid social service to keep them well supplied with ammunition. NRA Director of Research Paul Blackman agreed with Cooper, writing that since young homicide victims “are frequently criminals themselves and/or drug abusers,” their deaths offer “net gains” to society. In December 1997, former NRA President Charlton Heston made the following remarks at a Free Congress Foundation event: Why is ‘Hispanic pride’ or ‘black pride’ a good thing, while ‘white pride’ conjures up shaved heads and white hoods? Why was the Million Man March on Washington celebrated in the media as progress, while the Promise Keepers March on Washington was greeted with suspicion and ridicule? I’ll tell you why: cultural warfare … Mainstream America is depending on you, counting on you to draw your sword and fight for them. These people have precious little time or resources to battle misguided Cinderella attitudes, the fringe propaganda of the homosexual coalition, the feminists who preach that it’s a divine duty for women to hate men, blacks who raise a militant fist with one hand while they seek preference with the other. Then there was the bizarre, insulting 2003 editorial by Gun Owners of America Executive Director Larry Pratt, entitled, “Why Blacks Tend to Support Gun Control.” “Hatred is the ‘glue’ that has been used by many black leaders—preachers and politicians alike—to keep blacks on the plantation,” wrote Pratt. “Not surprisingly, one of the elements of the liberal worldview supported by many blacks is opposition to self-defense. Indeed, most black politicians are gun-bashing anti-Second Amendment zealots … Dependence on the state for food and shelter includes depending on the state for protection. That the state provides none of these things well has not shaken the firmly held commitment to restricting firearms. Regarding the National Association for the Advancement of Colored People (NAACP), [Rev. Lee] Peterson says this: ‘These are radical socialists who have little respect for individual responsibility or the Second Amendment.’” Finally, you have to wonder how African-Americans feel when they hear a gun extremist like Philip Van Cleave of the Virginia Citizens Defense League describing efforts to legalize the carrying of guns in bars by saying, “We tried to throw off the bonds that have tied down gun owners unconstitutionally for years.” A Familiar Tune In today’s political climate, not even progressive African-Americans are immune from the “racist” charge, whether it’s Glenn Beck claiming that President Obama has a “deep-seated hatred for white people” or Andrew Breitbart creating an alternate history where USDA employee Shirley Sherrod refuses to help white farmers. Ultimately, there is nothing racist about efforts to reduce the annual toll of 30,000+ gun deaths in America. In 1963, Dr. King expressed great concern about “our readiness to allow arms to be purchased at will and fired at whim.” He also decried a popular culture which taught children “that the hero is one who masters the art of shooting and the technique of killing.” Those concerns remain equally valid today, nearly half a century later.
You should also argue that gun violence destroys minority communities.
NAACP Legal Defense and Educational Fund, January 20, 2013, Hearing on “What Should America Do About Gun Violence?” https://www.judiciary.senate.gov/imo/media/doc/013013RecordSub-Leahy.pdf
There is no doubt that communities of color would benefit from greater protections from gun violence. African Americans are disproportionately impacted by gun-related homicide. Indeed, “young black men die of gun homicide at a rate eight times that of young white men.”1 Rampant and sustained gun violence has had a devastating effect on our families and communities. African Americans residing in urban areas are much more likely to die from gun violence than whites. In Chicago last year, 87 percent of the 500 homicides were gun-related; while African Americans are thirty-three percent of Chicago’s population, they comprised 70 percent of the murder victims.2 Without question, the issue of gun violence and how to prevent or reduce it is a critical one for the African-American community.
Additional answers are included in the release.
Federalism. This disadvantage argues that expanded federal gun control undermines the state responsibility for crime control and gun regulation. The link to this argument is reasonable, but there are some problems with it. Most significantly, there are many other intrusions on states’ rights.
Robert Levy 17, PhD in business from the American University, Chairman of Cato, director of the Institute for Justice, the Foundation for Government Accountability, March/April 2017, “Volte-Face: Federalism in the Age of Trump,” https://www.cato.org/policy-report/marchapril-2017/volte-face-federalism-age-trump
In the aftermath of the Trump election, liberals seem to have rediscovered federalism — although grounded less on principle than on the conviction that states’ rights might better serve the progressive agenda. Not to be outdone, Republicans, who now control both legislative and executive branches, appear willing to abandon federalist principles in favor of strong central government freshly enabled to advance conservative preferences. That role reversal is reflected in positions on issues such as drug legalization, tort reform, sanctuary cities, and gun control — reinforced by flawed views of the Constitution’s Commerce Clause, spending power, and the Second Amendment. Let’s start with Congress’s power to regulate interstate commerce. Marijuana in some form is now legal in 44 states. But under federal law, the use, possession, sale, cultivation, and transportation of marijuana is illegal. What say our conservative champions of federalism? Republican drug warriors — buttressed by liberal Justice John Paul Stevens’s 2005 opinion in Raich v. Gonzales — have invoked the infinitely elastic Commerce Clause to justify national prohibition. Indeed, Attorney General Jeff Sessions criticized President Barack Obama for not being tough enough on marijuana, saying “You have to have leadership from Washington.” And White House press secretary Sean Spicer confirmed on February 23 that the Justice Department will be doing more to enforce federal marijuana laws. Never mind the warning from conservative Justice Clarence Thomas, who dissented in Raich despite his antidrug predilections. Thomas wrote that Raich used marijuana that had never been bought or sold, had never crossed state lines, and had no demonstrated effect on the national market. He added, if Congress can regulate that under the Commerce Clause, then it could regulate virtually anything — quilting bees, clothes drives, and potluck suppers. Or consider tort reform — especially malpractice cases, in which the litigants are almost always from the same state. Nowhere in the Constitution is there a federal power to set rules that control lawsuits by in-state plaintiffs against instate doctors for in-state malpractice. Some malpractice awards may be shocking, and the impact may be widespread. But not every national problem is a federal problem. Nonetheless, House Speaker Paul Ryan and Tom Price, secretary of health and human services, have pledged to include tort reform in their replacement for the Affordable Care Act. They say frivolous lawsuits are inflating malpractice insurance premiums, which raise health care costs. The remedy: nationalize malpractice relief. So much for the federalist notion that the states should serve as 50 experimental laboratories. Ditto when it comes to the spending power and sanctuary cities. Mayors in several cities — including Los Angeles, Chicago, and New York — have refused to cooperate with federal immigration authorities in detaining and deporting illegal aliens. In response, President Trump has promised to cut federal funding for those cities. That threat ignores two principles of federalism. First, while federal law supersedes conflicting state law, and states may not impede federal enforcement, neither the president nor Congress can commandeer state officials to execute federal law. Second, the feds may not deny funding to states in a manner that essentially compels cooperation. That’s how the Obama administration tried to force states to expand Medicaid — by withholding all Medicaid funding if a state said no. The Supreme Court reminded the administration that a coercive condition imposed on receipt of federal funds is incompatible with federalism and thus unconstitutional. Finally, consider the Second Amendment and the right to bear arms. On November 8, voters in California, Nevada, and Washington opted for stricter gun control. Some conservatives demand national gun control standards. But Second Amendment rights are not absolute. Local jurisdictions retain the ability to regulate the manner of carrying guns, prohibit carrying in sensitive places, bar weapons that are not covered by the Second Amendment, and disqualify possession by dangerous individuals. And federalism dictates that what’s allowed in the hills of Montana need not be allowed in downtown Chicago. Recall that the essence of federalism is dual sovereignty — shared authority between federal and state governments to shield individuals from concentrations of power. Justice Anthony Kennedy in United States v. Bondput it this way: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual.” That means the proper balance between federal and state power must be rooted in the Constitution’s embrace of limited government and individual liberty — not liberal or conservative politics.
Second, there are many other factors that impact state autonomy
Anthony Kammer, 2013, is an attorney in private practice and a 2011 graduate of Harvard Law School, Journal of Law & Politics, Fall, Privatizing the Safeguards of Federalism, p 111-12
- State autonomy.
A second justification for the federalist system is that it ensures the autonomy of decentralized political subunits. Federalism, according to this view, allows communities with differing conceptions of the good life or the proper aims of the state to maintain autonomous political subunits within a larger political system. This justification stems from the recognition that society is heterogeneous and a belief that geography is an appropriate dimension along which distinct communities should be organized. The reason that states are typically defended as legitimate sovereign entities is closely related to idea of popular sovereignty, namely, that the states are among the primary political institutions through which the consent of the governed is to be maintained. James Madison famously expressed this theory in Federalist 46, where he wrote, “the federal and State governments are … but different agents and trustees of the people, constituted with different powers, and designed for different purposes.” There is little indication at present that multijurisdictional private political advocates pose a threat to the formal lawmaking authority of the states. Private entities that lobby and engage in political activity do not generally want states to lose their ability to enact legislation; rather, they want to influence the partisan composition of state legislative bodies and the content of legislation that is ultimately enacted. Indeed, multistate advocacy groups like ALEC have frequently championed states’ rights and have made it rather explicit that the devolution of authority from the federal government to the states is congenial to their substantive policy goals. Private political affiliations might, by some accounts, actually end up strengthening the states and encouraging a more desirable level of competition and federalist conflict. From a more functionalist understanding of state and popular sovereignty, however, it is considerably more doubtful that the private cross-jurisdictional coordination of political activities actually increases states’ autonomy as it is conventionally understood. This invisible hand-like description of private political competition must also contend with the threat of market failures, monopoly power, and other forms of inequality that can prove particularly troubling in the political realm. Power disparities among political actors can overwhelm not only other private actors, but can also threaten state autonomy. Patrick M. Garry, Derek A. Nelsen, and Candice J. Spurlin present an argument along these lines and offer a case study about the out-of-state money that overwhelmed South Dakota in a recent voter referendum battle, observing that “the effects of out-of-state political fundraising and campaign expenditures could be such so as to jeopardize a small state’s electoral autonomy.” Their point is perhaps even more persuasive when extended beyond the referendum context, when the possibility of legislative capture is factored into the equation. Particularly in nationally contested debates, substantial out-of-state lobbying and political activity could potentially pose the same risks to larger states. Just as federal authority can conflict with state autonomy, powerful outside interests can challenge and displace state and local interests and priorities. Notwithstanding the different institutional mechanisms through which this displacement occurs, the risk that state interests will be subordinated to external ones is analogous. Implicit in the theory of state sovereignty is the notion that state policies will be driven by state-level priorities as reflected through their electoral processes. As described in the subsequent subsection, out-of-state private interests are capable of altering the incentives of state lawmakers in ways that undermine the state legislative process and the institutional basis of state autonomy.
Third, multiple checks preserve federalism, none of their impacts are specific to the violation
Anthony Kammer, 2013, is an attorney in private practice and a 2011 graduate of Harvard Law School, Journal of Law & Politics, Fall, Privatizing the Safeguards of Federalism, p. 76-7
One of the most famous contributions to legal scholarship on federalism, Herbert Wechsler’s The Political Safeguards of Federalism, looked beyond judicial review and argued that (to use Bednar’s terminology) both intergovernmental retaliation and structural features of the U.S. constitutional system that empower the states have “the larger influence upon the working balance of our federalism.” Wechsler’s work on the non-judicial safeguards of federalism has been among the most cited and influential journal articles of the last half-century. The sufficiency of the intergovernmental safeguards Wechsler identified have been discussed and debated repeatedly since, most frequently in ongoing disputes over the judicial enforcement of federalism. More recently, the political safeguards of federalism have also attracted attention from federalism scholars. Professor Larry Kramer has argued that political parties long served as an important safeguard of federalism by establishing a “mutual dependence” between state and federal governmental actors. n31 And the legal historian George Leonard, who traces the rise of modern parties to the Van Buren era, wrote that “the two-party system … now constitutes the main political safeguard of federalism[.]” Franita Tolson’s work, which argues that partisan gerrymandering can be understood as a safeguard that protects the states against federal overreach, n33 demonstrates how structural and political safeguards interact to serve federalism’s ends.
Generally, I think the Con is the more difficult side of the topic, as there is good evidence that UBCs have at least some positive impact on reducing gun violence. That simple fact stated, I think there are many arguments the Con can make that reduce the number of lives saved and there are a couple of disadvantages against expanding UBCS.
The one point worth making, however, is that unless the Pro claims something outrageous, it is very difficult to minimize the number of gun deaths. Con teams need to focus on attacking the workability of UBCs, not minimizing the number of gun deaths.
These are some sample arguments —
-Four reasons background checks fail
Jacob Sullum, October 8, 2015, Reason.com, 4 Reasons Universal Background Checks for Buyers are a Bad Idea, http://reason.com/blog/2015/10/08/4-reasons-universal-background-checks-ar
That particular change, unlike stricter gun control in general, does indeed poll well, but that does not mean it’s a good idea. Here are four major problems with requiring background checks for private gun transfers as a policy, as opposed to a political stunt:
- Expanding the background check requirement makes no sense as a response to mass shootings (even though that is how it has been presented), because the perpetrators of these crimes, including last week’s massacre in Oregon, typically either have actually passed background checks or could do so because they do not have disqualifying criminal or psychiatric records.
- Expanding the background check requirement makes little sense as a response to more common forms of gun violence, since criminals with felony records can always obtain weapons on the black market, through buyers with clean records, or by theft.
- 3. Expanding the background check requirement, especially if it is coupled with “improved” databases, compounds the injustice of disarming millions of people who pose no threat to others but are nevertheless forbidden to own guns because they use illegal drugs, overstay a visa, were once subjected to court-ordered psychiatric treatment, or have felony records, even if they have never committed a violent crime.
- Expanding the background check requirement is not the same as actually compelling people to perform background checks for private gun transfers. Many gun owners will balk at the inconvenience and expense of finding and paying a licensed dealer who is willing to faciliate a transaction. In Oregon, which expanded its background-check requirement in August, some local law enforcement officials have publicly stated they do not plan to enforce the new rule, either because they do not have the resources or because they view it as an unconstitutional intrusion. The Oregonian notes that “there is no centralized registry of guns in Oregon…that could be used to track a gun found in a criminal’s possession.” The federal government has no such registry either, so how can it possibly hope to track transfers and make sure background checks are performed? Even with hefty criminal penalties, widespread noncompliance is a certainty. Consider: Does the theoretical prospect of a 10-year prison sentence deter gun owners from smoking pot or pot smokers from owning guns?
-Most guns will not be covered, even in a universal system
C.D.. Michel, an adjunct professor at the Chapman University School of Law, is the west coast legal counsel for the NRA and a senior partner at Michel & Associates, P.C, April 7, 2013, The Hill, Why Universal Background Checks Won’t Work, http://thehill.com/blogs/congress-blog/judicial/294213-why-universal-background-checks-wont-wor
There are three basic problems with universal background checks; it will have no effect, the numbers don’t prove the case, and the only way to make the scheme remotely effective is repugnant to the people. Those are three big hills to climb. That’s why few politicians seem ready to take the hike. Most important is that criminals disobey such laws (and according to the Supreme Court in their Haynes vs. U.S. decision, criminals are not legally obligated to). In a report titled “Firearm Use by Offenders”, our own Federal Government noted that nearly 40 percent of all crime guns are acquired from street level dealers, who are criminals in the black market business of peddling stolen and recycled guns. Standing alone, this shows that “universal” background checks would have an incomplete effect on guns used in crimes. The story gets worse. The same study notes that just as many crime guns were acquired by acquaintances, be they family or friends (this rather lose category also includes fellow criminals, who are equally unlikely to participate in “universal” background checks). Totaled, nearly 80 percent of crime guns are already outside of retail distribution channels (which are 14 percent of crime gun sources) and outside of transactions made by the law abiding folks who would participate in “universal” background checks at gun shows (0.7 percent). When 80 percent of the problem is not addressed by legislation, even if the law was enforced it would be nearly useless.
-Can’t catch violators
James Jacobs & Joe Fuhr, 2016, Albany Law Review, Universal Background Checking: New York State’s SAFE Act, James B. Jacobs is the Warren E. Burger Professor of Law at New York University and Director of the Center for Research in Crime and Justice. Zoe Fuhr is a fellow at the Center for Research in Crime and Justice. , Jacobs, James and Fuhr, Zoe, Universal Background Checking – New York State’s SAFE Act (June 17, 2016). Albany Law Review, Vol. 79, No. 4, 2016; NYU School of Law, Public Law Research Paper No. 16-21. Available at SSRN: https://ssrn.com/abstract=2797456
To a significant extent, compliance with the SAFE Act’s universal background checking requirement depends upon prospective firearms sellers perceiving a significant risk of apprehension, prosecution and punishment for violating the law. The actual risk is very low. The most likely way for the police to identify a SAFE Act violator is to persuade a person arrested for an armed offense to name the person who supplied him his gun. (Prosecutors may be willing to make concessions to catch a major seller, but probably not to catch a casual seller.) Of course, the gun crime arrestee probably does not know the name, especially the real name, of the person from whom he purchased the firearm. Even if he did know and still remembers the seller’s real name and whereabouts, the person he identifies will almost certainly deny it. What proof is there? The current owner (the criminal defendant in this scenario) is highly unlikely to have a signed receipt (!). Since January 2013 (when the SAFE Act became effective) until the end of June 2015, there has not been a single arrest statewide for knowing failure to comply with the SAFE Act’s universal background checking requirement.64 Enforcement of universal background checking would be greatly facilitated if police had access to a comprehensive firearms registry which enabled them to identify the last owner of a firearm recovered from an armed criminal or at a crime scene. Without a registry, it is very difficult, except by means of a sting operation, to prove that a particular individual sold someone a specific firearm.65 Unfortunately, there is no national firearms registry. Only the District of Columbia and Hawaii have one. 66 New York State has a de facto registry for handguns since a handgun permit holder must list all his or her handguns on the permit. A private rifle or shotgun seller, who ignores the SAFE Act’s universal background checking requirement, faces practically no risk of apprehension unless he sells his gun to an informant or police undercover. Of course, some non‐licensed sellers will comply because they are habitually law abiding or because they do not realize that the chance of being apprehended for an unlawful sale is so low.
-Stricter controls do not result in less gun crime
Nicholas Johnson, law professor, Fordham, 2014, Negroes and the Gun: The Black Tradition of Arms, Kindle edition, page number at end of card
All this said, it is still hard to shake the draw of supply controls, even though we know they are mainly symbolic. The appeal of the “no guns” logic presses through in the intuition that any sort of incremental reduction in the firearm supply will push gun crime proportionately downward. The modern orthodoxy advances this logic through the contention that easier access to guns explains the exceptional rate of homicide in black communities. The data say otherwise. This is demonstrated by the fact that urban areas where disproportionate black murder rates now center generally have stricter gun laws, fewer guns, and more gun crime than rural areas where there are far more guns, easier access to guns, and less gun crime. Among young black males, the gun homicide and victimization rate is higher in urban areas (where gun regulation is stricter and gun ownership is lower) than in rural areas (where gun regulation is looser and gun ownership is higher). But despite the fact that rural blacks own more guns and have easier access to guns, the modern murder rate for young urban blacks has been as much as 600 percent higher than that of their rural counterparts. 44 Overall, blacks own guns at no greater rate than whites, and some surveys say that blacks own fewer guns. A study published in the Harvard Journal of Law and Public Policy summarizes the data this way: Preventing law-abiding, responsible African-Americans from owning guns does nothing at all to reduce murderers, because they are not the ones who are doing the killing. The murderers are a small minority of extreme antisocial aberrants who manage to obtain guns whatever the level of gun ownership in the African-American community. Indeed, murderers generally fall into a group some criminologists have called “violent predators,” sharply differentiating them not only from the overall population but from other criminals as well. Surveys of imprisoned felons indicate that when not imprisoned the ordinary felon averages perhaps 12 crimes per year. In contrast, “violent predators” spend much or most of their time committing crimes, averaging at least 5 assaults, 63 robberies, and 172 burglaries annually. A National Institute of Justice survey of 2,000 felons in 10 state prisons, which focused on gun crime, said of these types of respondents: “[ T] he men we have labeled Predators were clearly omnibus felons . . . [committing] more or less any crime they had the opportunity to commit. . . . Thus, when we talk about ‘controlling crime’ in the United States today, we are talking largely about controlling the behavior of these men.” The point is not just that demographic patterns of homicide and gun ownership in the African-American community do not support the more guns equal more death mantra. More importantly, those patterns refute the logic of fewer guns equal less death. The reason fewer guns among ordinary African-Americans does not lead to fewer murders is because that paucity does not translate to fewer guns for the aberrant minority who do murder. The correlation of very high murder rates with low gun ownership in African-American communities simply does not bear out the notion that disarming the populace as a whole will disarm and prevent murder by potential murderers. The general data on violent crime and the gun inventory also refute the instinct that incremental decreases in the gun supply will reduce gun crime. The telling point here is that the overall gun inventory and gun crime have split in dramatically different directions. Over the last seventy-five years, the number of guns per 100,000 of population has grown from about 34,000 per 100,000 to roughly 100,000 per 100,000. Yes, we have enough guns literally to arm every man, woman, and child in the nation. But an interesting thing has happened as the gun inventory has grown to this record level. The more-guns-equals-more-gun-crime assumption has not turned out. While the inventory of civilian firearms has grown steadily, the overall gun homicide rate has oscillated from around three per 100,000 to highs of around six per 100,000. In recent years, the gun crime rate and violent crime rate (even among blacks) have declined even while the number of guns has risen sharply. Gun homicides have trended down over recent decades from highs of around 14,000 per year to the current rate of around 8,000 per year. Over this same period, the number of guns in the civilian inventory has continued to grow to its now-record level of more than 325 million firearms. (This estimate is in the middle of a range that includes William Bratton’s 350-million-guns estimate on the high end and lower estimates toward 300 million.) Not only have more guns not equaled more crime, both violent crime and gun crime have sharply declined while the gun stock has accelerated to record levels. 46 Johnson, Nicholas (2014-01-14). Negroes and the Gun: The Black Tradition of Arms (p. 314). Prometheus Books. Kindle Edition.
Racism. Gun criminal law disproportionately applied to minorities – it increases the policing of minorities, results in selective enforcement, used to enhance penalties and incarceration
Alex Gourevitch, June 24, 2015, Salon.com, Gun Control’s Racist Reality: The liberal argument against giving police more power, https://www.salon.com/2015/06/24/gun_controls_racist_reality_the_liberal_argument_against_giving_police_more_power/
The dead are buried, the murderer apprehended, and the shock has started to wear off. Now comes the public reaction to the massacre in Charleston. Soon after the shootings at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, the first black president of the United States offered some thoughts on Dylan Roof’s racist attack. First and foremost, President Obama said, recent events were about how “innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hand on a gun.” The killings were also about a “dark chapter in our history,” namely racial slavery and Jim Crow. Obama only suggested practical action regarding the first issue, namely gun control. He did not consider that such measures will make the persistence of the second problem even worse. It is perhaps counterintuitive to say so but gun control responses to mass killings – whether racially motivated or otherwise – are a deep mistake. The standard form of gun control means writing more criminal laws, creating new crimes, and therefore creating more criminals or more reasons for police to suspect people of crimes. More than that, it means creating yet more pretexts for a militarized police, full of racial and class prejudice, to overpolice. As multiple police killings of unarmed black men have reminded us, the police already operate with barely constrained force in poor, minority neighborhoods. From SWAT to stop-and-frisk to mass incarceration to parole monitoring, the police manage a panoply of programs that subject these populations to multiple layers of coercion and control. As a consequence, more than 7 million Americans are subject to some form of correctional control, an extremely disproportionate number of whom are poor and minority. While it is commonly assumed that the drug war is to blame for all this, work by scholars like Benjamin Levin and Jeff Fagan demonstrates that already existing gun control efforts also play an important role. One of the most notorious areas of policing, the NYPD’s stop-and-frisk program, was justified as a gun control rather than a drug war measure. In the name of preventing violence, hundreds of thousands of poor minorities are subject to searches without probable cause each year. Further, a range of Supreme Court-authorized exceptions to standard Fourth Amendment protections against illegal search and seizure derive from a concern with gun violence. This invasiveness is a necessary feature of criminalized gun possession. After all, policing guns is just like policing drugs. Like drugs, there are a vast number of guns. Possession is far more widespread than can possibly be policed so decisions have to be made about where to devote resources. Furthermore, since possession itself is the crime, the only way to police that crime is to shift from actual harm to identifying and preventing risks. As legal scholar Benjamin Levin argues in a forthcoming piece “Searching for guns – like searching for drugs – can easily become pretextual, a proxy for some general prediction of risk, danger, or lawlessness.” In other words, there must be selective enforcement, where enforcement includes invasive searches based on existing prejudices about who is and isn’t dangerous. For example, as research by Jeff Fagan and Garth Davies shows, in the late 1990s, the NYPD used suspected weapons violations to justify numerous stops, even though these stops resulted in fewer arrests than stops for other crimes. And when it comes to individualized assessments of who is dangerous and worthy of punishment, every study shows steep, and unfounded, bias. Michelle Alexander, quotes a former U.S. attorney in her recent sensation, “The New Jim Crow,” saying the following: “I had an [assistant U.S. attorney who] wanted to drop the gun charge against the defendant [in a case which] there were no extenuating circumstances. I asked, ‘Why do you want to drop the gun offense?’ And he said, ‘He’s a rural guy and grew up on a farm. The gun he had with him was a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles, and it’s not like he was a gun-toting drug dealer.’ But he was a gun-toting drug dealer, exactly.” This isn’t just a point about conscious and unconscious biases towards poor minorities – biases that some imagine can be removed with proper training. No matter how neutral the laws are, their enforcement must remain unequal and unfair. That is because the policing involved would never be tolerated if they affected politically influential groups to the same degree. These policing practices persist because they are disproportionately directed against marginal populations. Once individuals find themselves arrested gun control reappears as a reason for increasing punishment. Gun possession can be used to enhance sentences for other crimes and even functions as a kind of double punishment when that possession becomes the reason for also tacking on an extra criminal charge. Gun charges are also a part of the excessive and racially unequal over-charging practices that not only contribute to rising incarceration rates but also ends force numerous individuals away from trial and into plea bargains. Poor Blacks and Latinos are easily intimidated by charge-happy prosecutors into accepting plea deals, meaning they never see their day in court. Some even end up admitting to crimes they did not commit just to avoid the possibility of more severe punishments. More criminal gun laws would only feed this deeply unjust system. There is an unrecognized gap between the justification for gun control and its most likely effect. There is no reason to expect fair enforcement of gun control laws, or even that they will mainly be used to someone prevent these massacres. That is because how our society polices depends not on the laws themselves but on how the police – and prosecutors and courts – decide to enforce the law. Especially given how many guns there are in the U.S., gun law enforcement will be selective. That is to say, they will be unfairly enforced, only deepening the injustices daily committed against poor minorities in the name of law and order. It is hard to imagine any feasible gun control laws doing much to decrease mass shootings. But it is easy to see how they will become part of the system of social control of mostly black, mostly poor people. There are already too many crimes, there is too much criminal law, and there is far too much incarceration — especially of black people. To the degree that all that is part of the “dark chapter in our history,” given the deep injustice of our society, and especially its policing practices, the actual practice of gun control will continue that dark chapter, not resolve it. Of course, a reasonable gun control regime is logically possible. We can imagine one in our heads. But it is not politically possible in the United States right now. And it is a great error to think that gun control is the path to racial justice. More likely, it is the other way around. Racial justice is a precondition for any reasonable gun control regime. That, perhaps, is why the demands that have emerged from the #blacklivesmatter movement focus not on gun control but instead on demilitarizing the police and investing in “jobs, housing, and schools” for those “black communities most devastated by poverty.” What happened in Charleston is a horrific tragedy. The criminal law will not solve it. I wish I had a better solution ready at hand. I don’t, though I think it would start by freeing our political imagination from instinctively reaching for the criminal law.
And it’s not just the targeting that is unjust. Incarceration results in a lifetime of poverty and discrimination.
Steve Mariotti, September 29, 2013, Huffington Post, The New Jim Crow: A Must Read for Every American, http://www.huffingtonpost.com/steve-mariotti/the-new-jim-crow-a-mustre_b_3679076.html
Alexander reviews American racial history from the colonies to the Clinton administration, convincingly tracing its transformation into a war on drugs that has led to mass incarceration. She explains cogently that former inmates will be discriminated against, legally, for the rest of their lives, denied employment, housing, education, and public benefits. This, she argues, is the new Jim Crow. The statistics Alexander cites are beyond belief and painful to face. But face them we must if we intend to fix this problem and prevent it from happening again. Here are some examples of what she has uncovered: The United States incarcerates a higher percentage of black men than South Africa did at the height of apartheid. Primarily because of these significant incarceration rates, the level of black youth poverty is higher today than it was in 1968. An African-American male is sentenced an average of a 20 to 50 times longer prison term then a white male convicted of the same drug crime. Over 2.3 million men in America are in prison — about half for drug crimes. Seventy percent of all men imprisoned are black or Hispanic. Thirty years ago, before the “War on Drugs” was implemented, there were only 300,000 people in the American prison system. There are 2.7 million children whose fathers or mothers are in prison, on probation, or on parole. There are 7 million Americans either in prison, on probation, or on parole — mostly for selling or using drugs. In many inner cities, eighty percent of young men have prison records. These convictions will remain on their records permanently, limiting their voting rights and their ability to find employment. Currently, in all but two states, citizens with felony convictions are permanently or temporarily prohibited from voting. The United States is the only country that permits permanent disenfranchisement of felons even after completion of their sentences. The United States now has the highest rate of incarceration in the world — higher than Russia, China and Iran.
Gun rights. As discussed, the link to gun rights is that guns will be confiscated after a registry is created to support the UBCs.
AWR Hawkins , June 6, 2017, is the Second Amendment columnist for Breitbart News and host of “Bullets with AWR Hawkins,” a Breitbart News podcast. He is also the political analyst for Armed American Radio, Universal Background Checks Unenforceable without Gun Registry, https://www.americas1stfreedom.org/articles/2017/6/6/universal-background-checks-unenforceable-without-gun-registry/
Think about the mechanics behind universal background checks. They treat private sales like retail sales and require a background check to be performed whenever a gun changes hands. In many cases this includes requiring a background check before a hunter can loan a gun to a fellow hunter. Viewed theoretically, the Left sees these checks as a way to “keep guns out of the wrong hands.” The theory sounds good and, when pushed after a high-profile attack, benefits from good-hearted Americans who are thinking with their emotions rather than their brains. But ask yourself one simple question: How can the government know whether a gun is changing hands? That is, how can they know a resident in Nebraska is not selling a gun to his neighbor in Nebraska at this very moment? How can the government know that a resident in Kentucky is not selling a gun to his neighbor in Kentucky at this very moment? After all, they have to know these things in order to make universal background checks enforceable. Consider the example of California, a state that adopted universal background checks in the 1990s. They followed those checks with numerous other gun controls, a gun registry chief among them. It is the registry that makes universal background checks enforceable, because it is the registry that tells the government the name of every gun owner and the guns that owner possesses. By the way, in addition to adding registration to universal background checks, California also added firearm confiscation laws.By the way, in addition to adding registration to universal background checks, California also added firearm confiscation laws. Some of the laws allow for permanent confiscation and others for temporary confiscation via Gun Violence Restraining Orders (GVROs), but all ultimately revolve around confiscation. Again, this is not in some foreign country—although gun laws in foreign countries could be cited to bolster the dangers of universal background checks. Rather, it is in the United States. The fact that universal background checks are not enforceable without a gun registry was not lost on New Mexico sheriffs during a recent Democrat push to enact such checks there. On Feb. 9, 2017, Breitbart News reported that 32 of New Mexico’s 33 sheriff signed a letter warning that Democrats’ push for universal background checks would necessitate a gun registry. New Mexico residents rallied around the sheriffs and defeated universal background checks, thereby defeating a gun registry. In the rush to do “something,” bad legislation is proposed and then has to be justified. When public support for “universal” registration started slipping, politicians brought out statistics to bolster their case. Unsurprisingly those statistics were as weak as the legislation itself. “As many as 40 percent of all gun purchases are conducted without a background check,” was President Barack Obama’s assertion concerning the National Instant Check System (NICS) which is exercised by every licensed gun retailer in the country. Aside from problem that 80 percent of crime guns come from non-retail acquisitions, the president’s 40 percent number is horribly mangled and completely inaccurate. The quoted datum (which actually totaled 36 percent, not 40 percent) came from a survey conducted before NICS came into being in 1998. The 1994 survey, reported in the 1997 study “Guns in America: National Survey on Private Ownership and Use of Firearms”, 36 percent of transfers (not sales just simple transfers of possession) were outside of background checks. “Transfer” is another very lose category which include gifts, trades, inheritances, and loans as well as sales. Indeed, 17 percent of all those transactions were non-sales, and 27 percent were outside of normal retail channels. So “universal” background checks would only extend to an additional 9% of firearm transactions under the most favorable circumstances. Though 80 percent of crime guns already bypass the new system.
Self defense. The basic link to the self-defense argument is that UBCs will make it more difficult to transfer a weapon that is needed for self-defense.
David Kopel, 2016, * Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law; Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Background Checks for Firearms Sales and Loans: Law, History, and Policy, Kopel, David B., Background Checks for Firearms Sales and Loans: Law, History, and Policy (April 8, 2016). Harvard Journal on Legislation, Vol. 53, 2016, pp. 303-367; U Denver Legal Studies Research Paper No. 15-54. Available at SSRN: https://ssrn.com/abstract=2665432,
The Second Amendment includes “the core lawful purpose of self-defense.”69 As will be detailed in Part VI, the Uniform Firearms Act, the model gun control law of the 1920s and 1930s, imposed new controls on retail handgun sales and was designed to protect “the lending of a weapon by one citizen to another in case of emergency.”70 Under the Bloomberg laws, such lending is mostly forbidden. In the Bloomberg federal model, there is no allowance for lending a firearm to a citizen in case of emergency.71 Under the proposed Nevada initiative, the latest version of the Bloomberg laws, a firearm may be loaned if the loan “is necessary to prevent imminent death or great bodily harm” and the loan “lasts only so long as immediately necessary to prevent such imminent death or great bodily harm.”72 Whatever “imminent” means, the loan is allowed only as long as “immediately necessary.” This exemption is exceedingly narrow. If people in a house were attacked by rioters, the exemption would allow the sharing of all arms within the house. But the exemption does not allow for a much more common selfdefense situation: a former domestic partner threatening a woman and her children. An attack might come in the next hour, or the next month, or never. The victim and her children cannot know. Because the attack is uncertain— and is certainly not “immediate”—the woman cannot borrow a handgun from a neighbor for her defense. Many domestic violence victims do not have several hundred spare dollars so that they can buy their own gun
And, most simply, gun control reduces gun availability and that makes fewer guns available for defensive purposes
Southeastern Legal Foundation, 2008, Amicus Briefs, http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_07_08_07_290_RespondentAmCu4GunDefenseOrgs4Indv.authcheckdam.pdf DOA: 12-14-15
With regard to the implications of gun control measures and self-protection, Kleck concludes: The policy-related reasons are obvious: if self-protection with a gun is common place, it means that any form of gun control that disarms large numbers of prospective victims, either altogether, or in certain times and places victimization might occur, will carry significant social costs in terms of lost opportunities for self protection. Kleck and Gertz, Armed Resistance to Crime, THE JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Vol. 86, 150-187, 151 (1995). Likewise, he finds: In sum, measures that effectively reduce gun availability among the noncriminal majority also would reduce DGUs (Defensive Gun Uses) that otherwise would have saved lives, prevented injuries, thwarted rape attempts, driven off burglars, and helped victims retain their property.
There is evidence that guns play an important role in self-defense.
William Saletan, June 24, 2013, Slate, Rethinking Gun Control, http://www.slate.com/articles/health_and_science/human_nature/2013/06/handguns_suicides_mass_shootings_deaths_and_self_defense_findings_from_a.html
- Guns are used for self-defense often and effectively. “Almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million per year … in the context of about 300,000 violent crimes involving firearms in 2008,” says the report. The three million figure is probably high, “based on an extrapolation from a small number of responses taken from more than 19 national surveys.” But a much lower estimate of 108,000 also seems fishy, “because respondents were not asked specifically about defensive gun use.” Furthermore, “Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies.”
One specific manifestation of the argument is that guns are needed by the poor for self-defense because policing in poor neighborhoods is limited
Stell, 2006 (Lance K [Professor and Director of Medical Humanities at Davidson College], “Self-Defense and Handgun Rights” 2 J.L. Econ. & Pol’y 265. (Fall, 2006 ):
Blanket handgun possession/carrying disabilities take an interest whose monetary value can be estimated — the price of one’s next-best option. [*280] In jurisdictions that permit regulated concealed handgun carrying, citizens who can afford the “time-tax,” the fees and mandatory instruction, have the option of paying for the regulated privilege. Wealthier, politically well-connected individuals may gain a discretionary exemption from the disability altogether. Chicago’s aldermen, for example, exempt themselves from the blanket handgun possession/carrying disability they impose on the city’s general population. Those who can afford it have the option of living in gated communities which typically feature private security services. Because felons are under life-time firearm possession disability, by federal law, blanket handgun carrying disabilities burden the law-abiding, despite their law-abidingness. Such disabilities also have distributional wealth effects among the law-abiding, shifting the risks of victimization even more to poorer citizens who cannot afford the security options wealthier citizens buy. D.C.’s Firearms Control Regulations Act (FCRA) of 1975 imposed disarmament on its law-abiding citizens. By making civilian handgun possession illegal, the law dramatically emphasized that the city’s residents must depend on the police for armed protection against criminal attack. FCRA not only disabled virtually all civilians from possessing handguns, it prohibited the sale of handguns within the District and further required anyone who owned guns legally to maintain them in their residence unloaded and disassembled. n44 Having assured the City’s criminals that they need not fear [of] an armed response when assaulting law-abiding civilians, it would have seemed ethically imperative that those placed under legal disability from effective self-help should enjoy a special relationship with the guardian of all persons under disability (parens patriae) to provide minimally-adequate protection from attack.
The failure of the government to provide protection in minority communities magnifies this need.
Nicholas Johnson, law professor, Fordham, 2014, Negroes and the Gun: The Black Tradition of Arms, Kindle edition, page number at end of card
What do we say to the young black woman in Detroit who arrived home after midnight to find her front door broken open and waited three hours for police to respond to her 911 call? At some earlier time, in some other place, such a delay might signal overt racist neglect. But here the problem was simply overtaxed resources. We might discount this worry by saying that slow police response is rare. But how to dismiss the black policy chief’s triage approach, focusing only on the worst crimes, letting the others go, and betting that the security bureaucracy can tell the difference? 3 From the perspective of the victim, how different is the three-hour police response in Detroit from the situation of Mississippi activist Robert Cooper in 1965? Cooper called the sheriff when a cross burst into flames in front of his home and waited until the next day for someone to show up. One difference is that Cooper had an “automatic shotgun” by the door and used it to let the cross burners “know he was home.” 4 So was it a good thing that Cooper was armed? Was it a good thing that the young woman from Detroit was not? Johnson, Nicholas (2014-01-14). Negroes and the Gun: The Black Tradition of Arms (p. 299). Prometheus Books. Kindle Edition.
Federalism. Federalism refers to the balance of the power between the states and the federal government. Protected by the Tenth Amendment, federalism is designed to prevent to much power from becoming concentrated in one level of government.
There are two potential reasons that federalism could be undermined by the passage of UBC legislation. The link does depend on the Con winning that the “United States” means “federal government,” and that the federal government is the actor that would move forward with the UBC legislation.
The first way that federalism could violated is if the federal government required the states to implement the UBCs, as this would be a “commandeering” of the states.
Daniel Birk March 2015, Yale Law Journal, Article III Judicial power, the adverse-party requirement, and non-contentious jurisdiction; p. 1440
The conflicting views of the Justices in Printz present a slightly different perspective on the classification of judicial and administrative work, but one on which non-contentious jurisdiction may shed some light. Holding that Congress may not commandeer state officials to administer a federal law requiring background checks for firearm purchases, (587) Printz was a decision about federalism. Printz v. United States, 521 U.S. 898 (1997) (federal requirement that local law enforcement officers perform background checks on gun purchasers commandeers state officials in violation of Constitution’s federalismprovisions);
Third, if the federal government doesn’t require the states to do anything, the federalization of criminal law results in a deprivation of liberty – it centralizes criminal penalties, the greatest threat to liberty. And by undermining state power, it is also a threat to federalism
Brian Walsh is a senior fellow at The Heritage Foundation, June 9, 2011, Doing Violence to the Law: The Over-federalization of Crime, http://www.heritage.org/crime-and-justice/commentary/doing-violence-the-law-the-over-federalization-crime
The power to punish criminally—including the deprivation of one’s personal liberty and even one’s life—is the greatest power that government regularly exercises with respect to its own citizens. As Professor Herbert Wechsler famously characterized it, criminal law “governs the strongest force that we permit official agencies to bring to bear on individuals.” Perhaps the central question that the Framers of the Constitution and the Bill of Rights debated, and to which they gave painstaking consideration, was how best to protect individuals from the unfettered power of government. They were well acquainted with abuses of the criminal law and criminal process and so endeavored to place in our founding documents significant safeguards against unjust criminal prosecution, conviction, and punishment. In fact, they understood so well the nature of criminal law and the natural tendency of government to abuse it, that two centuries later, the most important procedural protections against unjust criminal punishment are derived directly or indirectly from the Constitution itself, specifically the Fourth, Fifth, Sixth, and Eighth Amendments. But despite these protections, the wholesale expansion of federal criminal law—both as to the number of offenses and the subject matter they cover—is a major threat to Americans’ civil liberties. Each time Congress crafts a criminal law covering a new subject matter, it effectively expands the power of the federal government. And the types of crimes that Congress now often creates—lacking a true actus reus or a meaningful mens rea requirement—can effectively circumvent the Bill of Rights’ procedural protections. Of similar concern, criminal offenses that exceed the limits of Congress’s limited, enumerated power are breaches of one of the primary structural limitations that constitutional federalism imposes on the federal government. After countenancing for decades Congress’s almost unlimited criminalization of conduct that is inherently local in nature (as long as, that is, the Constitution’s Commerce Clause was invoked to justify the assertion of congressional authority) the Supreme Court rediscovered constitutional limits in United States v. Lopez and United States v. Morrison. In both of these cases, the Court explained that such limits on federal commerce power are consistent with and flow from the fact that Congress is a body of limited, enumerated powers. The federal offense of carjacking is a quintessential example of Congress’s overreaching assertions of federal criminal jurisdiction. The federal carjacking offense is currently defined as taking a motor vehicle “from the person or presence of another by force and violence or by intimidation.” The federal jurisdictional “hook” for this carjacking offense is that the vehicle must have been “transported, shipped, or received in interstate or foreign commerce,” but how many vehicles have not? Actual commissions of carjackings take place almost uniformly within a single locale of a single state, yet federal criminal law now purports to authorize federal prosecutors to be the ones to charge and prosecute local carjackings. Such breaches of constitutional federalism are not mere breaches of technical and theoretical niceties, for the power to criminalize is the power to coerce and control. The purpose of constitutional federalism is akin to the purpose of limited government itself: to guard against accumulation of power by a single sovereign—i.e., the federal government—as a “double security . . . on the rights of the people.” Thus, if there were no limits on Congress’s power to criminalize, there would be no limits on the power of the federal government to coerce and control Americans.