House Democrats and a handful of Republicans passed a pair of new gun control bills Thursday, March 11. These bills would extend the time to complete a background check from three days to ten and require such checks even for private transfers. But can supporters net the 60 votes required to clear the Senate? They’ll have to get a whole lot more bipartisan before they do.
The Law of the Land, and Then Some
Under current law, when someone wants to buy a firearm from a federally licensed dealer, that person will have to fill out ATF Form 4473, also known as a Firearms Transaction Record, and then the seller will perform a background check through the FBI’s National Instant Criminal Background Check System (NICS). This usually takes about 30 seconds, but the period can be considerably longer. If it takes more than three days, the seller is allowed – but not required – to complete the transaction and transfer the weapon.
The Enhanced Background Checks Act of 2021, or H.R. 1446, increases that potential wait time from three days to ten. The Bipartisan Background Checks Act of 2021, or H.R. 8, extends the requirement for a background check even to private sales.
The Loophole Fallacy
Each of these bills was put forth to close some dangerous “loophole” through which violent criminals could buy guns without actually breaking the law. The existence of such loopholes, however, is mere myth. The Second Amendment reads:
“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.”
As explained by Liberty Nation back in 2018, buying a gun through an unregulated private sale isn’t a loophole – even if it happens outside of a gun show. That’s how the law is supposed to work. “Requiring anything that could prevent someone from owning a firearm is a pretty clear infringement on the right of the people to keep and bear arms. Perhaps it’s more accurate to say that requiring licensed dealers to conduct said background checks is a clever loophole that allows the government to violate the Second Amendment.”
H.R. 1446 strives to close the so-called “Charleston loophole.” Politicians gave it this name in honor of Dylann Roof and his 2015 church shooting – the only example they could dredge up in the entire history of NICS background checks. Roof, the story goes, tried to get a gun, but the background check took too long. After the three days were up, he got his gun. He was then ready to attack a black church.
That’s not quite what happened. He got his gun after five days of waiting on the incomplete background check, then 17 days later committed his vile crime. During that time, the FBI discovered a drug charge and investigated, along with the ATF, whether that made him a prohibited person or not. The ATF decided – before the shooting – that he was not prohibited from owning a firearm, so they opted not to attempt confiscation. Even if the wait period had been ten days rather than three, the shooting in Charleston would still have happened.
But accuracy and efficiency aren’t what gun control is all about. It’s about playing on public fear – and, as Liberty Nation’s Scott D. Cosenza once wrote, “Closing loopholes must poll quite well because the list of them that needs to be closed for us to achieve peace keeps growing.”
The very history of gun control in America has been a tale of loophole exploitation. Since the National Firearms Act of 1934, Congress has regulated American gun manufacture, sales, and possession, citing their authority through the Constitution’s Commerce Clause.
Clear Sailing Through the House, Rough Waters in the Senate?
The Bipartisan Background Checks Act passed the House 227-203, with a total of eight Republicans voting in favor, and only a single Democrat, Rep. Jared Golden of Maine, voting against. The Republicans in support of this measure were:
- Fred Upton of Michigan
- Chris Smith of New Jersey
- Brian Fitzpatrick of Pennsylvania
- Vern Buchanan of Florida
- Carlos Gimenez of Florida
- Maria Salazar of Florida
- Andrew Garbarino of New York
- Adam Kinzinger of Illinois
With 211 Republicans in the House, that’s just shy of 4% GOP support for universal background checks.
The Enhanced Background Checks Act passed 219-210, and this time only two of each party swapped sides. Reps. Smith and Fitzpatrick joined with the Democrats, and Reps. Golden and Ron Kind of Wisconsin joined the GOP in opposition.
Can either bill clear the Senate? Unless Democrats nuke the filibuster, the answer is almost certainly no. Sen. Joe Manchin (D-WV) has vowed to protect the filibuster and has a history of siding with the GOP on abortion and gun control issues, so that doesn’t seem like an option for the Dems. Even if eight Senate Republicans turned coat on either of these bills – 8% Senate GOP support – neither would manage the required 60 votes. So long as the filibuster stands, these bills seem destined to die in the upper chamber.
Read more from James Fite.