© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.
The Brady Campaign talks about requiring universal background checks. This will require online sales and gun show sales to be subject to background checks. This ignores the fact that all dealers are required, as condition of licensure, to conduct background checks. The question is whether the Campaign is grasping at straws or is just generally irrelevent.
First, of the 2.1 blocked sales, these were generally people who were not aware that they were prohibited persons. The fact that they were going through the process indicates that there may be a number of prohibitions that screen individuals who are otherwise law abiding citizens. Note that Mark Kelly, a “gun safety activist” was denied a sale on an AR because his actions indicated he was not, in fact the end recipient of the weapon—he could have been prosecuted for a false statement on his 4473.
Second, all federal law is governed by the Constitution of the United States. The authority of the Gun Control Act of 1968, as Amended, is the Commerce Clause. Dealers are licensed because they deal in “Commerce among the States.” While the preamble of the Act references “Public Safety” there is no (nul, zip, nada) grant of power to Congress in this area.
And, despite the people, such as my wife, who believe there are inherent powers, this was a deliberate omission because the “framers” assumed that public safety was one of those general governmental functions the States would perform. Further, the anti-federalists pushed through an amendment which stated “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, before the late Nineteenth Century, when Congress discovered the Commerce Clause as a means to enact criminal penalties, there was a general belief that the safety of the population was a function of the States which have independent sovereign powers as opposed to delegated powers. (No, the Fourteenth Amendment did not repeal the Tenth, and the Tenth Amendment does supersede both the Commerce Clause and the Supremacy Clause.)
Now to the nitty-gritty. My wife sold a shotgun to an individual in another state through Gunbroker.com. We shipped through a dealer to the buyer’s dealer. The transaction was handled through the normal process. I have purchased weapons from companies that deal on the internet—in those instances the weapon was sent to my dealer and I filled out the 4473 and my dealer ran the background check. In other words, the Brady Campaign has been disingenuous in this claim.
At gunshows, dealers use the 4473 process. But individuals will sometimes bring items they want to trade or sell. There is no jurisdiction to regulate these sales at the federal level. The Peoples Democratic Republic of California does regulate all transfers, but that is at a State level. I have had to go through background checks for most of my purchases—no, money under the table will not substitute and there are ATF agents at most shows. If someone is dealing commercially without a license, then the ATF needs to make a case and prosecute.