Leaving aside the fact that from a political standpoint many of the proposals offered by Team Obama/Biden will likely fail in the Senate, there are serious constitutional and practical issues involved. In short, it is a perfect storm against draconian gun control laws. The only thing the gun control lobby has going for them is emotion and polls. Yet like in so many other areas, polls do not necessarily amount to a whole hill of beans. Of course the law-abiding owner of a gun has few qualms against universal background checks because they have nothing to fear. It sounds reasonable. But, the majority of criminals do not get guns the legal way.
In fact, if we wanted to have gun control efforts that could lead to a decrease in violent criminal behavior, perhaps the best way to go about it is not to poll your average American, but to poll the criminals themselves. Fortunately,these studies do exist. For example, we know that greater than 80% of criminals who use a gun in their crime obtained that gun through straw purchases or from a friend/relative on the street. Obviously, universal background checks would do absolutely nothing to keep guns out of the hands of the criminal. Likewise, we know that automatic or assault weapons are used in a very small percentage of crimes with the primary weapon being a hand gun, the very firearm that is the choice used for self defense. We also know that a majority of criminals have responded that they would be less likely to commit the crime in the first place if they knew their victim had a gun. We know that in cities that have decreased the incidence of violent gun crime, they achieved their success not by strengthening their social service network or by strengthening their gun laws; they did so by increasing their police presence in high crime areas.
Regarding the straw purchases, this is where someone who could legally purchase a gun through a licensed dealer does so then sells the gun to someone who would not pass a background check. In short, they purchase a gun for a criminal. However, straw purchases have been illegal for years with hefty sentences handed out. Strengthening the sentences may help deter a certain percentage of these purchases, but not likely end them. And obviously if a licensed gun dealer is an active participant in the scheme, they should receive a hefty sentence and lose their license to sell guns. The problem is in the details. Basically, all a dealer has to say is they performed the background check, it came back fine and I sold the firearm to the purchaser. The only deterrent to straw purchases would be an idea that worries gun owners- a national firearm registry.
A registry would track the sale of guns and purchasers which is one thing, but there would have to be follow up. That is, once the purchase is made by a law-abiding citizen who would pass the background check, some authority would have to make sure that they still were in possession of that firearm as time passed and they would have to explain if they did not possess the firearm- Did they sell it? To whom? Was it stolen? When, and was it reported?, etc. Again, the worry is threefold: first, it would make potential criminals out of law-abiding citizens. The same basically happens with gun dealers. Over 70% of firearm dealer infractions are attributable to inaccuracies on their 4447 form. These can be as innocuous as entering an incorrect date on the form. Second, many gun owners believe that a national registry would be the first step in a government effort to seize firearms. There is a third worry- privacy. As the totally inexcusable action by certain newspapers in New York demonstrated, keeping a firearm registry private is almost impossible. With respect to a national registry of firearms, the potential negatives outweigh the potential positives and would likely not decrease the incidence of gun crimes in the country in either case.
As we are all aware, the information in the NICS background check system is only as good as the information entered. Many states do not even fully comply. Perhaps mandatory compliance using the carrot and stick of federal assistance in law enforcement expenditures could goad some of the more reluctant states towards compliance. Even then, criminals who committed certain crimes and were found guilty are entered into the system. First of all, these people, should they decide to return to their life of crime, are not very likely to attempt to purchase a gun through a licensed firearm dealer. Secondly, the time from arrest to conviction could be lengthy. We have a system that assumes innocence until proven guilty and thankfully so. However, as concerns this discussion, entering a person arrested into the system, but not yet adjudicated guilty could place them on a probationary denial through a background check.
There are certain proposals, mainly at the state level, to require gun owners to purchase "gun insurance" using the totally illegitimate comparison that states require car insurance in order to drive. There is one major problem with this proposal and line of thinking- driving is a privilege while firearm ownership is a right. And let's not make any false pretense over this: the reasoning is to make gun ownership expensive and the expense would act as a deterrent to gun ownership. Really? Does anyone really believe that a criminal would concern themselves with purchasing insurance for their illegally obtained firearm? This, again, only penalizes the law-abiding citizen.
Another effort and proposal in the same vein is to use the power of government taxation to deter firearm sales and use. Even if we use this idea with respect to ammunition purchases, there are some serious problems. The first is the reality that it would create a serious black market for ammunition much as there is a black market for guns...and cigarettes...and a booming illegal gambling infrastructure even in states with legalized gambling. Secondly, again, this would simply penalize the hunter or the person who keeps a gun for self defense. As for its constitutionality, the closest analogy would be the requirement for someone to obtain a permit in order to have a demonstration- another constitutional right. Here, the courts have had some cases. They have ruled that such permits are fine provided they serve a legitimate state interest (with gun control, public safety is one), it is content neutral (doubtful since it targets gun owners only) and there are alternatives (perhaps refunds for "good gun behavior"). There is already an 11% federal excise tax on ammunition which is passed on to consumers now. While it may be perfectly constitutional to increase that tax several-fold under Congress' Taxing Clause authority, it is highly unlikely politically and practically.
With regards to the recent spate of "mass shootings," there tends to be one common theme- these perpetrators were some seriously mentally ill people. Clearly, dots were not connected prior to the act. To show the idiocy of these reactionary gun control efforts, all the perpetrators obtained their weapons and ammunition legally. There was no reason to suspect at the time that these people were going to use their weapons in a crime. Today, people adjudicated insane by a court are entered into the NICS system. But, none of these recent perpetrators were "adjudicated insane."
Here is the problem as I see it with regard to the mentally ill and background checks. Obviously, those adjudicated SHOULD be restricted from purchasing firearms. But, if everyone who sought psychiatric or psychological counseling was entered into the system, it would crash. If someone is seriously harboring thoughts of a mass shooting, it is highly doubtful they would even seek help. Instead, it would depend on the professional community to become a de facto psychological police force. This is really Orwellian! Most professionals, in order to avoid legal liability, would simply enter a person into the system. Can you imagine the poor soul who seeks psychological counseling because he is going through a divorce suddenly finding himself restricted from purchasing guns? Secondly, we would be abdicating our duties as a sane government to the professional community that often fights against itself over the definition of psychological ailments.
By this, I mean look at the recent headlines regarding autism or attention deficit disorder. We are told that 11% of students today suffer for ADDH, or that the incidence of autism is increasing. What is changing is the psychological definitions of these disorders which then captures a larger proportion of the population at large. At one time, we called many of the kids today diagnosed with some form of autism as "shy" while we at one time called many of those kids today diagnosed with ADDH as "a-holes." Can one imagine someone being labeled or misdiagnosed by some professional being denied a constitutional right? For example, Adam Loughner was diagnosed with a form of autism- Asperberger's Syndrome. Because he killed teachers and children in Newtown are we to assume that sufferers of this syndrome should be banned from gun ownership? Are we to adopt the "be careful of those quiet people" mentality when it comes to gun control? Of course, the obvious mentally ill should not be permitted to purchase a gun. But, I can assure you that David Berkowitz did not walk into a gun store and tell the owner that his dog, who was really Satan, told him to purchase the gun. And Berkowitz, like most mass killers, led a "normal" life prior to their act only that "normalcy" was later questioned after the fact and the body count.
Regarding this idea- entering the potentially mentally ill into a database- then there must be safeguards regarding privacy issues and a change to the HPPA laws. Secondly, in order to make sure that professionals are not entering people willy-nilly to avoid potential future legal liability, the professionals need some guarantee of immunity from lawsuits. Here, the government would be on firm legal ground as there are other government grants of immunity, most notably the manufacturers of vaccinations. Third, just because a person seeks psychological help should not be the only reason for entry into the database. Naturally, if the professional honestly believes the person is a danger to themselves or others, that is a given. The schizophrenic is an obvious case; the sufferer of situational depression is not.
Even still, assuming we had airtight background checks with every potential threat and we increase fines and make gun ownership financially and bureaucratically onerous- in short, if we abandon the Second Amendment or skirt the edges of acceptability- there will still likely be mass shootings and gun crime. Is the solution to arm every citizen of the country so that no one knows who is "packing" at any given moment? Criminals responded on a survey they were less likely to target a victim if they knew they had a firearm, so the idea is not as preposterous as it may sound. In fact, it likely makes more sense than assault rifle bans, magazine size restrictions and a host of other ideas being bandied about in Congress these days.
Not to pontificate, but there will most likely be another Newtown, Connecticut or Auruora, Colorado and these issues will be debated and argued yet again. I began this series by stating that the Second Amendment and firearm ownership was not a major problem in this country for a large part of its history. It is only over the last 30-40 years that the issue of gun control has grown, yet firearm ownership was generally universal throughout our history. Something in society, however, changed over the past 30-40 years. Personally, I believe it was a relaxation of a moral code that held this country together; a "we are all in this together" mentality that had one looking out for one's neighbor rather than looking for a way to kill one's neighbor. Maybe it was the social upheaval of the 1960s and 1970s, the "me generation" mentality, the graphic depiction of violence in movies and now video games where people become desensitized to these heinous acts. Unfortunately, we cannot enter a time machine and see what would happen if we could change the "then." Today, we are more apt to avoid personal responsibility for our actions and apt to blame them on society, or our station in life, or some psychological disorder. Likewise, with gun control, we are more apt to have knee jerk reactions to every high profile use of firearms. At the end of the day, the problem is not the number of firearms in America or the size of magazines or any of that. The problem is a pervasive moral decay in society which Liberals only egg on.