The Light through the Loophole

It’s official—the next president of the United States will support closing the Gun Show Loophole, which allows unlicensed gun show vendors to sell firearms without conducting background checks.

Senators Barack Obama (D-IL) and Hillary Clinton (D-NY) have publicly reiterated their support for closing the loophole during the current presidential campaign. On May 16, Republican nominee for president Senator John McCain (R-AZ) removed all doubt about his own position, stating, “I believe an accurate, fair and instant background check at gun shows is a reasonable requirement.”

To his credit, this was consistent with McCain’s previous actions and statements on the issue. The senator has co-sponsored two bills to close the Gun Show Loophole in the past: one with Senator Joe Lieberman (D-CT) in 2001 and another with Senator Jack Reed (D-RI) in 2003. He also supported efforts to close the loophole at the state level in Oregon and Colorado in 2000, appearing in television ads on behalf of Americans for Gun Safety.

McCain’s advocacy drew strong criticism from the National Rifle Association (NRA). The NRA has opposed all regulation of private sales at gun shows despite the fact that background checks typically take only a few minutes to complete. In response to McCain’s legislative efforts with Senator Lieberman in 2001, the NRA described him as “one of the premier flag carriers for the enemies of the Second Amendment.”

Despite these past grievances, McCain is typically a friend of the gun lobby. He holds a C+ rating from the NRA, has supported many of their key initiatives, and was invited to address 6,000 members of the organization at their recent 2008 annual convention in Louisville, Kentucky.

During that speech, the senator demonstrated that he agrees with the NRA on a number of issues and is eager to court the votes of gun owners in the 2008 presidential election. McCain indicated he opposes renewing the federal ban on assault weapons and high capacity magazines, supports legal protection for gun dealers who channel firearms to criminals and traffickers, embraces the NRA’s interpretation of the Second Amendment in the landmark Supreme Court case District of Columbia v. Heller, and subscribes to the idea that the proliferation of guns in American society makes us safer.

But not necessarily McCain himself safer...

A few hours before Senator McCain gave his speech to the NRA, former Arkansas Governor Mike Huckabee took the stage. When Huckabee’s speech was interrupted by a loud noise, he said, "That was Barack Obama. He just tripped off a chair. He's getting ready to speak and somebody aimed a gun at him and he dove for the floor.

Huckabee’s audience responded with laughter, but the Secret Service officers in the building seemed to take his comment more seriously. When Senator McCain spoke that afternoon, those attending his speech were forced to pass through metal detectors and hand over any weapons they were carrying. This included not just firearms, but any potentially harmful implements. As one convention attendee stated, “It’s kind of ironic, isn’t it? We preach the right to carry [handguns] everywhere, and we got to start by turning in a pocketknife.”

Senator McCain is well acquainted with this no-firearms-on-the-premises policy from his work at the U.S. Capitol, where all visitors are prohibited from bringing firearms.

Despite his electioneering at the NRA convention, McCain should be credited for demonstrating some common sense. His reiteration of support for closing the Gun Show Loophole in front of the “Guns Anytime, Anywhere, Anyhow” crowd is a good sign—and bad news for criminals and dangerous individuals who have grown accustomed to easy access to firearms. We hope the senator will now practice what he preaches and co-sponsor the “Gun Show Background Check Act of 2008,” which has been introduced in his chamber on Capitol Hill.

Ordinary People: Tragedy in Stafford County

Bullet Counter Points’ “Ordinary People” series examines the gun lobby’s frequent claim that gun owners—and concealed carry permit holders—are the most law-abiding citizens in our country. We grant that this is probably true in many cases, but argue that gun owners are human beings like the rest of us—subject to the same struggles with issues of stress, addiction, depression, and mental illness; which can sometimes lead to criminal behavior. Today we relate the story of another “ordinary person.”

To the outside world, the Stafford, Virginia family of Aaron Jackson, LaTasha Thomas and their two children “seemed happy.” In reality, that was anything but the case. On May 5, Jackson used a semiautomatic AK-47 assault rifle to kill Thomas, before using a handgun to kill his children (ages 2 ½ and 1 ½) and himself.

Police responding to the crime scene at the family’s trailer discovered the bodies of the four victims, as well as six handguns, the AK-47 assault rifle, numerous boxes of ammunition, a sword, and a machete. The kitchen counter top in the trailer was crowded with empty liquor bottles. Jackson, 24, was discovered wearing a bulletproof vest .

Jackson and Thomas had been having relationship problems, and in the days before the shooting Thomas told others she wished to move out of the mobile home the couple shared. Jackson had begun a relationship with another woman, Ashley Price, with whom he shared an appetite for both alcohol and cocaine.

Jackson did not have a significant criminal record, however, and had been involved in no reported incidents of domestic violence. According to Jackson’s sister, his primary source of stress was financial in nature: "He was obviously upset—stuff wasn't going to well—everybody was having problems with money." Despite these issues, many who knew the family were baffled by the murder-suicide. One neighbor commented, “I sold them ice cream just the other day. They got SpongeBob ice cream.”

Authorities reported that Jackson possessed a concealed carry permit in the state of Virginia. “He carrie[d] a gun with a holster underneath him,” said Price, who stated that Jackson felt the need to protect himself in case he was ever attacked in public.

Ultimately, Jackson’s guns would provide him no protection. There was nothing extraordinary about his relationship issues, struggles with substance abuse, or financial problems—such stresses are experienced every day in our country by gun owners and non-gun owners alike. Regrettably, though, Jackson’s guns provided a permanent solution to temporary problems—allowing him to quickly and easily take not only his own life, but also the lives of those he loved, before cooler heads could prevail.

Loose Gun Laws Put Law Enforcement in Crosshairs

The murder of Sergeant Stephen Liczbinski in Philadelphia on May 3 demonstrates how weak laws and unfettered access to firearms in America leads to tragic consequences.

Responding to a bank robbery call, Sgt. Liczbinski was shot five times by an assailant who used a Chinese-made SKS assault rifle. Assault weapons are semiautomatic versions of fully automatic military rifles, and are disproportionably used by criminals to kill cops (the Violence Policy Center has released a report that shows that one out of every five law enforcement officers slain in the line of duty is killed with an assault weapon). These types of weapons are not ideal for either hunting or for self-defense—they were designed to rapidly fire high-velocity rounds at human targets in combat situations.

Officer Thomas Krajewski Sr., who held Sgt. Liczbinski in his arms as he died, commented: “There is absolutely no reason that anyone should be carrying around military-style assault weapons. I mean, we saw what a weapon like that did to a human body. I mean, I own guns and my sons and I hunt as well, but I don't have assault rifles or anything. There's no need for it.”

Unfortunately, the federal ban on assault weapons expired in September 2004. It was not the only gun law implicated in Sgt. Liczbinski’s murder. The shooter, Howard Cain, was a convicted felon, and therefore prohibited under federal law from purchasing firearms. According to a report in the Philadelphia Inquirer:

“[Tony Robbins, ATF assistant special agent] noted that the ATF was able to trace the SKS rifle used to gun down Liczbinski to a gun show in Fayetteville, NC. He said that because it had been bought at a gun show, the owner did not have to undergo a background check—another proposal that's been blocked by the gun lobby.” The rifle was trafficked illegally and passed through the hands of at least three other convicted felons.

North Carolina is one of many states that allow individuals to sell rifles and shotguns at gun shows without conducting background checks on purchasers. Commonly referred to as the “Gun Show Loophole,” this loophole actually allows individuals to sell guns in this manner not just at gun shows, but also via the Internet, through classified ads in newspapers, across their kitchen tables, etc., etc. The ATF has found that: "Prohibited persons, such as convicted felons and juveniles, do personally buy firearms at gun shows and gun shows are sources of firearms that are trafficked to such prohibited persons."

The National Rifle Association (NRA) has successfully thwarted all efforts to close the Gun Show Loophole at the national level since the time of the Columbine tragedy (where gun shows were implicated). Undaunted, Senators Frank Lautenberg and Jack Reed have introduced a bill to close the loophole during the current session of Congress.

In Philadelphia, Mayor Michael Nutter has also taken action, signing five gun control bills into law, including one that bans the sale and possession of assault weapons. Unfortunately, a 1994 law enacted by the Pennsylvania General Assembly at the behest of the NRA blocks municipalities in the state from enacting their own gun control laws. The NRA has also sued Philadelphia over the signing of the five new bills, and pending the outcome of that lawsuit, the assault weapons ban and other measures will go unenforced.

The result is that loose gun laws will continue to provide outlets for criminals and other prohibited purchasers to acquire firearms, and America’s law enforcement officers and citizens will continue to be caught in their crosshairs.

The Game of Monopoly

With the Bush administration casting aside the Constitution to eavesdrop on telephone conversations and hold suspected terrorists for years without access to lawyers, it’s easy to see why civil libertarians on the left are finding a lot to like about the right-wing critique of expansive government power. This distrust and distaste for government authority has even made some liberals receptive to arguments advanced by gun rights groups, who suggest that private ownership of firearms is a healthy check on government run amok.

Before we get carried away with the idea that guns are the ultimate guarantor of our civil liberties, however, we should consider what maintaining the capability to resist the decisions of a democratically accountable government really means. The question of whether armed citizens should be entitled to challenge the government with force is at the heart of the current debate over the Second Amendment in the Supreme Court case of District of Columbia vs. Heller.

On March 19, 2007, the U.S. Court of Appeals for the D.C. Circuit made national headlines when it struck down the District of Columbia’s handgun ban and ruled that the Second Amendment protects an individual right to keep and bear arms. This marked the first time that a federal court had overturned a gun control law on Second Amendment grounds. In its decision, the Court of Appeals asserted a broad range of purposes for the Second Amendment, including hunting, self-defense and, most notably, to defend against the "depredations of a tyrannical government." After the ruling was successfully appealed to the Supreme Court by the District of Columbia, the National Rifle Association made a similar argument in their brief to the Court, affirming that the “very existence of an armed citizenry will tend to discourage would-be tyrants from attempting to use paid troops to ‘pacify’ the populace.”

Such “insurrectionist” philosophy is common among a small but vocal group of gun rights supporters. Insurrectionists assert that unrestricted access to guns of every kind is an essential element of freedom. Government is seen as a likely enemy, and gun regulation is viewed as a plot to monitor gun ownership and, ultimately, to confiscate all private firearms.

If this insurrectionist logic were to be embraced by the Supreme Court, however, our democracy would be severely degraded. Such an interpretation of the Second Amendment would make even the most modest gun control legislation unconstitutional. If the purpose of the Second Amendment is to allow individuals to stockpile firearms to protect against government “tyranny,” then laws like owner licensing or firearm registration (and maybe even the Brady background check) could be found unconstitutional because they allow the government to monitor and regulate gun ownership. Future Timothy McVeighs could claim constitutional protection for their crimes. If every American armed up to vindicate their private grievances (the Court of Appeals gave absolutely no guidance on how to tell, or who should decide, what constitutes government “tyranny”), the government’s monopoly on force would be infringed and our society would gradually slide toward anarchy.

There was actually a time in our history—when America was governed by the weak and decentralizing Articles of Confederation—when private mobs exercised as much power as legislatures. Incidents like Shay’s Rebellion triggered great fear among America’s leading citizens and led to the framing of a Constitution with enhanced federal power. Since the ratification of that document, our nation has been through much travail, but through some of our biggest challenges (i.e., the Civil War, World War II, and the civil rights movement) it was ultimately America’s ability to mobilize both a federal bureaucracy and military power that kept us free. From General Washington to General Grant to General Patton to President Eisenhower, professionalized peacekeepers have safeguarded liberty and freedom in this country (and, in the case of WWII, on the entire planet). Our strong yet democratic state—which maintains a monopoly on force—has allowed us to walk the fine line between anarchy and totalitarianism.

The concept of a “monopoly on force” might sound foreign or even frightening to Americans that take great pride in our revolutionary beginnings, but it is the fundamental organizing principle of any political entity, including the United States. In 1919, German political economist and sociologist Max Weber defined the conditions required for a political entity to be termed a “state.” Weber said, “A compulsory political association with a continuous organization…will be called a ‘state’ if and in so far as its administrative staff successfully upholds its claim to the monopoly of the legitimate use of physical force in the enforcement of its order.”

Nonetheless, most Americans today would associate the idea more closely with the struggle for democracy and stability in Iraq than with our own political system. Indeed, the current situation in Iraq should be a cautionary tale for all democracies: If a state cannot guarantee the political and civil rights of its citizens, if it cannot enforce judicial or administrative rulings because it is outgunned by individuals or factions, then it is not functioning as a democratic state.

In Iraq, the state’s lack of a monopoly on force has produced obvious negative consequences. Let’s face it—isn’t that really what “the surge” is all about? George Will has written that, “A defining attribute of a government is that it has a monopoly on the legitimate exercise of violence. That attribute is incompatible with the existence of private militias of the sort that maraud in Iraq.” Researcher Herbert Wulf, commenting on the U.S. occupation of Iraq, stated, “[t]he present situation in Iraq illustrates that even the most powerful military nation of the world runs into difficulties in trying to re-establish the monopoly of violence.”

This doesn’t mean that Saddam Hussein’s regime, or other totalitarian states, should be accepted. These regimes lack legitimacy, which is the key to Weber’s definition of the monopoly on force. Nor does it mean that a democratic government must disarm every citizen or prevent armed self-defense. However, it does mean that a democratic state must be able to prevent the accumulation of military arms for insurrectionary purposes, and it must have enough strength to enforce its own laws. Without this monopoly of force, rights are only abstractions, because they cannot be enforced. This is not to say that government is the source of all rights, but rather that the only hope of vindicating individual rights over the long term is through democratic government that has both the will and the means to protect them.

The bottom line is that our Constitution is not a suicide pact. It can be amended and modified, but it does not sanction its own violent demise. As the eminent jurist Roscoe Pound concluded, a “legal right of the citizen to wage war on the government is something that cannot be admitted [because it] would defeat the whole Bill of Rights.” If we value our democracy, we should hope the Supreme Court agrees and explicitly quashes the D.C. Circuit’s assertion that there is an insurrectionary purpose to the Second Amendment.