Further Thoughts on Sensible Gun Legislation

In an op-ed on the New York Times web site yesterday, I voice my belief that the gun control bill authored by Sens. Joe Manchin and Pat Toomey, if properly modified, can and should pass with the support of gun rights advocates.

In the interest of being as specific as possible, I’d like to expand upon the sentiments expressed in that piece.

When the Senate rejected the Manchin-Toomey compromise on gun background checks, opponents of the bill were condemned for ignoring polls signaling up to 90 percent public support. The stonewalling by gun rights supporters was indeed a mistake—not just on the politics, but on the substance as well. In exchange for the modest, reasonable, and constitutional augmentation of background checks, there was plenty in the legislation for gun rights proponents to embrace.

Manchin-Toomey may be re-introduced. Gun rights advocates can seize the opportunity to address some of their own priorities while avoiding being labeled as obstructionists once again.

Here are the parts of Manchin-Toomey that gun rights proponents should be happy about, with a few recommended changes: 

First, the bill allows interstate handgun sales through dealers—under roughly the same rules that now govern long gun sales. Current law does not permit buying handguns from out-of-state sellers. So the new provision represents a major development. 

Second, Manchin-Toomey confirms that a firearms registry by the attorney general is prohibited, and adds a 15-year prison term for violators. The attorney general limitation should be broadened to cover all government agencies, the bill should clarify that data from all sources are precluded, and civil damages should be available for misuse of database records.  Justice Department regulations (which should be codified in Manchin-Toomey) state that government records of approved applicants must be destroyed within 24 hours. Dealers retain the data much longer, but law enforcement agencies have access only during a criminal investigation. Registry prohibitions may not be foolproof, but Manchin-Toomey adds a layer of protection. 

Third, the bill sets a 48-hour limit on performing background checks. That’s reduced to 24 hours after four years. Most gun shows are two-day events—incompatible with current law that allows up to 72 hours for checks. That’s one reason for fewer shows of late. Under Manchin-Toomey, the National Instant Criminal Background Check System (NICS) would come closer to matching its name.

Fourth, Manchin-Toomey reinforces current law permitting interstate transportation of firearms and ammunition—unless a certain weapon or use is barred. Guns have to be unloaded and inaccessible or locked, but the re-write of existing rules helps. Most important, state laws against unlicensed possession are preempted.

Fifth, the bill immunizes sellers from litigation when a gun is used unlawfully, unless the seller knows or should have known that the buyer provided false information or was ineligible to get a gun.

Sixth, Manchin-Toomey improves NICS by expending $400 million over four years, withholding grants to states that don’t meet specified benchmarks, clarifying that mental health records in NICS do not violate the privacy provisions of the Health Insurance Portability and Accountability Act, and assuring due process for veterans facing loss of gun rights because of alleged mental illness.

Weighed against those pro-gun-rights provisions is a modest concession to gun controllers:  Background checks—which already cover all sales through federally licensed dealers, whether at stores or gun shows, over the Internet, or by mail—would be extended to cover private sales at shows, over the Internet, and through published ads.  Manchin-Toomey still wouldn’t cover non-commercial transfers such as gifts or bequests, in-person sales outside a gun show, or sales responding to postings on community bulletin boards. Moreover, buyers would be exempt from background checks if they had a carry permit issued within five years. Until NICS can function remotely, Manchin-Toomey should also exempt private sales to rural residents far from licensed dealers.

Finally, three suggested improvements:  First, dealers impose fees for background checks ranging from $25 to $125. If those fees are deemed to promote public safety, the public (not just law abiding gun owners) should foot some of the bill. That could be accomplished by federal rebates of a stipulated amount to those who pass the NICS check.

Second, Manchin-Toomey instructs that NICS checks must prioritize gun shows over gun stores. As a result, backlogs could hamper stores during weekends when shows are held. That favoritism should be eliminated by increasing NICS personnel to expedite processing.

Third, existing law denies firearms to anyone who is “an unlawful user of or addicted to any controlled substance.” The maximum sentence is ten years in federal prison. Thus every would-be gun owner who lies to NICS about marijuana use, and every owner who smokes marijuana, could spend a decade behind bars—an unconscionable punishment that must be rectified.  

Manchin-Toomey is complex and controversial. Committee hearings are necessary and the public must have ample time to review the legislation. Still, considered as a package, a reworked Manchin-Toomey would offer substantial benefits to gun owners while imposing tolerable restrictions—none of which intrudes on core Second Amendment liberties.