Starting with the intent of the 2nd Amendment as our guide, let’s analyze this. The 2nd Amendment of the Bill of Rights is a dormant provision. In other words, as long as everything is going smoothly in the United States, the 2nd Amendment has no real purpose. Anyone that has ever financed a home or new car knows what I am talking about. In every home or new car financing transaction there is a contract the purchaser signs. That contract, in the first page or two, states the purchaser’s obligations. Usually, it says something as simple as, “Purchaser agrees to make monthly payments of $xxx for yyy number of months until the debt is paid off.” So what do the other 10 or 20 or 30 pages of the document do? Those pages do nothing as long as the simple 1 line obligation of the purchaser is adhered to. They are dormant until the time when the purchaser no longer is complying with his or her obligations. Then, and only then, does a bank need the clause that allows them to foreclose on the house or repossess the car.
The U.S. Constitution operates much the same way. As long as the Government complies with its obligations under the U.S. Constitution and the 26 other Amendments, the 2nd Amendment remains dormant. Do not confuse dormancy with obsolescence. No bank would finance a home unless there was some means by which the bank could guaranty it could get its money back. In good financial times, when foreclosures were at an all time low, was there any discussion to prohibit banks from foreclosing on property? Wishful thinking.
Keep in mind that the People are the Bank in the above scenario. The People had something the Government wanted, namely the People had all the rights. Through the U.S. Constitution, the People expressly granted some rights to the Government, expressly retained enumerated rights for themselves or for the States, and provided wonderful provisions on how to interpret the Constituion in the 9th Amendment and 10th Amendment. Adding to that is the 14th Amendment. In short, these provisions combine to provide that powers not delegated to the Government by the Constitution, even if not expressly reserved by the People to the People, are still not possessed by the Government. In other words, for purposes of our conversation, the People kept some guaranties that the Government would honor its obligations.
So what does this have to do with “universal” background checks. The media and some in the Government that are in favor of universal background checks would have us believe that sales of firearms between private individuals, especially at gun shows, happens in such a tremendous volume that this is a threat to public safety. So much so, that outlawing these private sales is warranted regardless of its effect on our Constitutional Rights.
On the gun show issue alone, they are lying to us; lying to the People. The Gun Control Act of 1968 (GCA) states the following:
“The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter.”
The very first operative provision of the GCA provides:
“It shall be unlawful … for any person … except a licensed dealer, to engage in the business of … dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce”
According to the GCA, anyone in the business of dealing in firearms needs to be licensed. I would conservatively estimate that 95% of the firearms sold at a gun show are sold by Federally licensed firearms dealers (FFLs). The actual number is probably higher. If an FFL disposes of a firearm in any manner other than to another FFL, a background check must be done. So that leaves maybe 5% of firearms sold at gun shows being sold by non-FFLs. So who are these other 5%? They are either unlicensed people in the business of dealing in firearms in violation of the GCA or they are private individuals not in the business of dealing in firearms.
The GCA already provides for penalties for unlicensed persons dealing in firearms. Now, the Government wants to regulate private individuals not in the business of dealing in firearms. This is such small number of people with such a small number of firearms, why is it so important to regulate them?
The same principles of the GCA apply to people outside of the gun show arena. If someone is in the business of dealing in firearms, they must be an FFL or they are committing a crime. Again, private sales of firearms between individuals outside of gun show is such a small number, why is it so important to regulate them?
The way the Government wants to regulate this small number of people is by making these people conduct background checks before they transfer a firearm. So what happens if no background check is done? The people are criminals. How does the Government purport to expose this criminal activity? There has been very little discussion on this topic because the manner would not be very pleasing to the bulk of the People.
In order to enforce universal background checks, the Government would first need an additional law that says it is a crime not to report a lost or stolen firearm. (This has already been proposed under the guise of helping police officers. How it accomplishes that is a mystery but it sounds good.) This is needed so that if you dispose of the firearm without a background check and did not report it lost or stolen, then you have committed one of two possible crimes: failing to do a background check or failing to report a lost or stolen firearm. But this only works if the firearm ends up in the hands of the Government and they are able to trace the firearm back to the person that transferred it without a background check. So what about all those other transfers where the firearm does not end up in the hands of the Government?
The only way to enforce a universal background check system is to have gun registration for all firearms and then the right of the government to enter your home to verify that the firearms you possess are in fact lawfully registered. Without gun registration, there is no reliable way for the Government to know how a firearm came to be possessed by a particular person.
Once firearms are registered, the 2nd Amendment is no longer dormant. It becomes obsolete. Not because it is no longer needed, but because the effectiveness of the 2nd Amendment is so impaired that it will no longer work for its intended purpose. Instead of having to go door to door to search for firearms, the Government merely needs to issue a statement that everyone with a registered firearm needs to turn the firearm into the Government or go to jail. Then the Government only needs to round up the People that did not turn in their firearms and imprison them.
Imagine if for some reason or another, Banks are told that they could not foreclose on a home and they no longer have any guaranty of payment when the homeowner has stopped paying the mortgage. How many homeowners would continue to make payments of their mortgages?
The Government will act the same way. If the Government finds a way to eliminate the consequences of infringing on free speech rights, having secret backroom criminal trials, or pronouncing people guilty until proven innocent, the Government will adopt laws to make it so. It is only because of the dormant nature of the 2nd Amendment and the harsh consequences of the failure of the Government to honor its obligations under the U.S. Constitution that the 2nd Amendment has never had to be used for its intended purpose.
The People must maintain the line and not let the 2nd Amendment be viewed as obsolete. As goes the 2nd Amendment, so go the rest of our Freedoms.