Dear Gun Nuts, Background Checks Are Constitutional. Get Over It!

backgroundcheckDear Gun Nuts and 2nd Amendment Absolutists,

Over the weekend, in an op-ed for the Houston Chronicle, Vice President Joe Biden announced that the Administration was not going to give up background checks, and for good measure. According to Mayors Against Illegal Guns, in over 40 states, criminals (not law abiding gun owners) can legally avoid gun store background checks simply by purchasing their firearms at gun shows and through anonymous internet sales. I am not going to undertake a detailed analysis of the statistics, but if you are interested they can be found here. Suffice to say that although background check laws will never be able to prevent all illegal sales nor keep firearms away from all criminals (no law ever prevents all crime), for the most part they do work to keep guns away from those who shouldn’t have them. But, because of the lack of federal legislation on this issue, it is quite easy for a criminal to avoid one, simply by going to another state or a place where a background check is unnecessary. This needs to change. Unless and until we make background checks for gun sales that occur at gun shows and on the internet the law of the land, we will continue to see illegal firearms find their way into our cities and onto our streets. The issue is not dead, we are not going to let it die, because we are unwilling to see more of our children die instead. For the record, background checks are constitutional. Anyone who says otherwise is either uninformed or naive. If you want to know the truth about the constitutionality of background checks, simply read the case law on the subject.

I am going to keep the legal stuff relatively short, since I am not in the mood to write (nor do I think you are in the mood to read) an entire synopsis of 2nd Amendment constitutional case law. However, it’s time to put the universal background checks issue to rest once and for all; they are constitutional. They are not an “infringement” that is so great such that they violate the 2nd Amendment. One needs to look no further than DC v. Heller (the case that gun owners like to cite to all the time when discussing that they have an individual right to bear arms and do not need to be part of a militia) to see that background checks are constitutional. 

“Like most rights, the right secured by the Second Amendment is not unlimited… …Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

This is not a terribly difficult concept to understand. One does not need to be a lawyer or a brain surgeon to get it. In fact, I’m pretty sure that if you asked a child to read the above paragraph they would be able to explain that what the Supreme Court has said is that laws which “infringe” on the 2nd Amendment are nonetheless constitutional if they: 1) Prohibit the possession of firearms by felons or the mentally ill (those adjudicated mentally ill by a court – not everyone who goes to the psychiatrist once a week), or 2) Forbid the carrying of firearms in certain places, or 3) Impose conditions or qualifications on the sale of arms. Hmmm… let’s think about this for a moment. Background checks do two of these things. They prohibit the possession of firearms by felons and/or those adjudicated mentally ill and they impose conditions/qualifications on the sale of arms. Thus, they are constitutional. How many times and in how many different ways does it need to be explained for some people to get it through their thick heads?

More people have been killed by gun violence since Sandy Hook than on 9/11. Most of these acts of violence have been perpetrated by someone who was not a law abiding gun owner and should never have had access to a firearm to begin with. Background checks take less than 5 minutes and help to ensure that only responsible law abiding gun owners have access to firearms. Background checks do not lead to firearms registries, because the proposed background check law specifically and unequivocally prohibits registries. Background checks protect 2nd Amendment rights by allowing lawful gun owners to continue to exercise their 2nd Amendment freedoms. They do this by keeping firearms away from criminals and those who are mentally ill who should not have them. Those who claim to be law abiding gun owners should have no problem spending the 4.5 to 5 minutes it takes to be background checked, to prove that they are in fact a law abiding responsible gun owner. Background checks do not infringe 2nd Amendment rights—on the contrary, they help to protect them.

In closing, background checks are clearly constitutional. Although you are entitled to your opinions and are free to disagree with background check laws, legally speaking they do not violate the 2nd Amendment. While background check legislation may have failed once, 91% of Americans, including many gun owners want expanded background check legislation to pass. Truth be told, sooner rather than later it will. We are persistent, we are not going to stop fighting for universal background checks legislation, and we are not going away.

Love Always,

A Pissed Off New Yorker

P.S. Get over it!!!!

Ilyssa Fuchs

Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who holds both a juris doctor and a political science degree. She is the founder of the popular Facebook page Politically Preposterous and a blog of the same name. Follow Ilyssa on Twitter @IlyssaFuchs, and be sure to check out her archives on Forward Progressives as well!


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