Background checks dangerous, says ACLU

The Second Amendment is the reset button on the Constitution
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Next week, the US Senate will take up a federal gun control bill. That bill has little more in it but “universal background checks.” Before today, only the National Rifle Association opposed that measure. But now the American Civil Liberties Union has denounced these new background checks. And whatever made them say it, they have a point.

Background checks, gun shows, etc.

Today, any gun dealer, holding a federal license, must run background checks on his customers. The National Instant Criminal Background Check System checks a buyer’s name against a list of people who shouldn’t buy guns. Ostensibly this list includes people:

  1. Having a felony on their record, or
  2. Mentally ill in the opinion of a judge.

Federally licensed dealers must still run background checks on buyers, even at gun shows like this one.

The Houston Gun Show, at the George R. Brown Convention Center, Houston, TX. Photo: M. Glasgow, CC BY 2.0 Generic License

If the background check turns up positive, the buyer may not buy. The FBI may not keep records of any particular checks. But the dealer must keep those records, to show that he checks his buyers out.

The problem, according to TimesUnion.com, is: if you own a gun, and want to sell it to someone you know, you don’t have to run a background check on the buyer. TimesUnion also alleges that those who sell guns at gun shows don’t have to run these background checks either. The site Governing.com gives a better perspective. A gun dealer holding a federal license must run a background check on anyone wanting to buy a gun, gun show or no gun show. Also, in eleven States, anyone selling a gun at a gun show, license or no, must run a background check on a buyer. Six more States make anyone selling a handgun at a gun show run a background check on a buyer. The other thirty-three States do not make a private seller at a gun show check out a buyer.

Why would anyone believe “you don’t need a background check at a gun show”? Maybe most people hear “gun show” and think of an open-air event with no telephone, nor Internet, nor any other hook-up. False, of course. Most gun shows today take place indoors. Besides: hasn’t anyone heard of smartphones? Or 4G-LTE? Or wireless hotspots? In short, no technological hurdle stops anyone from running a background check.

Harry Reid’s new law

Senator Harry W. Reid (D-NV) has a problem. To stay in the Senate, he always has “played ball” with the National Rifle Association. In return, they stayed out of his 2010 white-knuckle race with Sharron Angle and probably let him win. (Why? Because they didn’t want New York’s Charles Schumer to take over as Majority Floor Leader. The NRA didn’t think that maybe – just maybe – they could have gotten Mitch McConnell as Majority Floor Leader.)

If Harry Reid turns on the NRA now, they’ll turn on him, and in the year when the White House “falls open.” (If it does, but that’s another story.) That’s why he refused to “mark up” Senator Dianne Feinstein’s (D-CA) first real step toward the “Mr. And Mrs. America, turn them all in” bill she really wants. So he must be more subtle. And he will subtly propose that anyone who doesn’t run a background check on anyone buying his gun, privately or at a gun show in a “gun-show-friendly State,” will break federal law.

And now he has made an enemy no one expected him to make – or rather, an enemy no one ever expected would be an enemy.

Why the ACLU doesn’t like background checks

The American Civil Liberties Union is an unlikely Second Amendment advocate. Roger Baldwin started that group to expel religion from public life. But when you start an outfit that big, you attract those who take your name seriously. So it is now with simple matters of privacy.

Chris Calabrese, a “top lobbyist” specalizing in privacy, explained things to Vince Coglianese of The Daily Caller. Calabrese sees two problems with the Harry Reid universal background check law.

What is the FBI to do with background check records?

The FBI will now keep background check records on private and gun-show sales far longer than for licensed-dealer sales.

Under existing law, most information regarding an approved purchase is destroyed within 24 hours when a licensed seller does a [National Instant Criminal Background Check System] check now.

Once that changes, it opens the way for a permanent database of who has a gun, and who hasn’t. The NRA said that earlier. Pooh, pooh, said gun-control advocates. Wait a minute, says the ACLU’s Calabrese. Be afraid. Be very afraid. Why? Current law says the FBI may use the records for one purpose only: to keep guns out of the hands of those whom a judge has said can’t have them. The Harry Reid law says nothing like that. So the FBI can use those records for any purpose.

What is a transfer?

The new law makes a transfer something that any overzealous prosecutor can call a transfer whenever he wants! Criminal law should make absolutely clear when someone is breaking the law, and when the law can’t touch you. Harry Reid’s new background check law does not.

Snitch city

Calabrese also told The Daily Caller something else he’s worried about: school tip lines. Senator Barbara Boxer (D-CA) threw that into the bill. All schools must set these tip lines up. Then anyone can report a “potentially dangerous student” using this line. Report – to whom? Report what? And what do Senators Reid and Boxer expect the schools to do with these tips?

We already have a phone line for reporting dangerous situations – it’s called 9-1-1.

So of course the idea is to report somebody who might be planning something. And is anyone liable for railroading someone on a bum tip? Kids in school railroad each other all the time. So do nasty neighbors. Who will sort the credible threats from the non-credible? Or is everyone now guilty until proved innocent?

Obama: Constitution “constrains” me

De facto President Barack Obama already earned infamy by giving yet another speech with human props, only to have some of them protest his using them as such. But The Blaze picked up on something specific he said in Denver yesterday:

I am constrained by a system our founders put in place.

The point: background checks would not let Obama confiscate guns, because the Constitution constrains him.

But the last time Obama spoke of the Constitution constraining him, he lamented that. He called the Constitution “a charter of negative liberties.” This could be more of the same.

Recall that CNAV contributor Dwight Kehoe proposed a background check system that would address the first concern the ACLU had. Under the Kehoe system, the FBI would keep records only when it turned a would-be gun buyer down. This new law would keep some of those records indefinitely. That’s the problem. And when even the ACLU notices the problem, the politicians can’t hide it anymore.