Bipartisan Gun Bill Cleared in Senate, Our Analysis

Amidst renewed interest in solving gun violence in the country, a bipartisan group of senators announced last June 12 that they were reaching agreements on new gun restriction policies through a bipartisan gun bill. On Tuesday night, the Senate voted 64-to-34 to pass the bipartisan measure entitled the “Bipartisan Safer Communities Act.” This Bill is the product of a rare compromise on the issue of firearms ownership between the Republicans and Democrats that has not been seen in quite some time.

Republicans voting to advance the bipartisan gun package:
BLUNT
BURR
CAPITO
CASSIDY
COLLINS
CORNYN
ERNST
GRAHAM
MCCONNELL
MURKOWSKI
PORTMAN
ROMNEY
TILLIS
YOUNG

— Steven Dennis (@StevenTDennis) June 22, 2022

Before we continue, gun control policies are very much the topic of heated arguments online, especially with the recent Uvalde shootings. Editorially, SOFREP takes a pro-Second Amendment position that is generally permissive of firearms in private hands with as few restrictions as possible as to their type and manner of possession.  We believe that the primary purpose of our government under the Constitution is to protect and expand upon the liberties, rights, and freedoms of its citizens. The issues of Public Safety and Individual Rights are not exclusive or alien to each other.  They are intertwined together.  History has shown us various forms of brutal totalitarianism arose amid cries for “Public Safety!” that abridged religious liberty, free speech, privacy, equality before the law, Due process, and the right to self-defense.

In the desire to be safe, some people are willing to live like pets on a leash and give over to the state the right to make every important decision for them about their lives.

Not us.

If the government were able to perfectly provide and assure public safety, people might be willing to give up guns for self-defense, but in the last 50 years, the failure of our governments to protect its own citizens has led them to arm themselves in ever-increasing numbers.  Today it is said that the fastest-growing category of new gun owners in the US is black women. This is according to the National Shooting Sports Foundation which said the sale of guns to Black Americans rose 58% in 2020. While in another report the NSS stated the first quarter of 2021, 90% of gun retailers reported an uptick in Black customers, including an increase of 87% among Black women.

The most common reason given by new gun owners for their purchase is the feeling of safety and security that comes with owning a firearm.

As the number of firearms owners increased in this country, it came with calls by the public to reduce the number of laws restricting their possession by law-abiding citizens.  In 1987, Florida passed a “Shall Issue” permit law to carry concealed weapons which held that if the citizen was willing to certify that they met certain legal requirements, the state would automatically issue the permit rather than it being done at the option of the state.  This law was not the first of its kind in the US but it began a mass movement to increase the freedom of the law-abiding to carry weapons for self-defense.  Today, all 50 states have some form of concealed carry, and 40 of them are modeled on the “shall issue” type used in Florida.

There were some holdouts on this, notably in Washington DC where the private possession of handguns was all but banned and rifles and shotguns had to be licensed and disassembled or disabled by trigger locks in the home, making them all but useless as self-defense weapons. Richard Heller was a Special Duty Police Officer who carried a handgun while he worked guarding a federal building but was not allowed to possess a handgun to defend his own home.

The 2008 District of Columbia v. Heller case was put before the Supreme Court in 2008. In a 5-4 decision, the Court struck down the DC ban on handguns and other disability restrictions on firearms and stated that the Second Amendment “protects an individual right to keep and bear arms”  arguing that this “right existed prior to the formation of the new government under the Constitution” and intended for Americans to possess weapons privately for things like hunting, and self-defense which was understood to mean not just protection from individual criminals, but also a tyrannical government or invasion by a foreign army. It also noted that while this was a social good in preserving a citizen militia proficient in the use of arms(well regulated) that the Amendment was not written for and limited to the being a member of an organized or unorganized militia for the right to keep and bear arms to apply broadly.  On this basis, the Court struck down the DC law almost in its entirety finding that handguns were “Arms” under the Constitution and that DC could not ban their possession and ownership in the home.

Other cities with similar types of restrictive bans were forced to repeal theirs as well.

As of this writing, the Court has just struck down a New York statute regarding the carrying of a concealed weapon outside the home.  In New York, possession of any firearm without a license. Any person who wishes to go out in public with a firearm must first obtain an unrestricted license to have and carry a concealed handgun.  To obtain this license the gun owner must demonstrate a special need for protection that goes beyond the general need for protection by the public.  It means in effect that the grant of the license is entirely at the whim and discretion of the state.

In the case, New York State Rifle & Pistol Association, Inc. v. Bruen, Superintendent of New York State Police, the court found that New Yorks’s requirement to show a proper cause to carry a concealed weapon violated the 14th Amendment protection of equal treatment under the law by denying a Second Amendment right to keep and bear arms for self-defense to ordinary citizens with a general interest in defending themselves.

The legislative and judicial trend in this country for the last 40 years has been less gun control legislation, not more.

To summarize things a bit, the government seems to be failing in its primary duty which is to ensure public safety. In response, the public buys guns in ever-increasing numbers to protect themselves.  The government then tries to impose restrictions on the ownership of guns on ordinary citizens which are resisted by a public that is distrustful of a government that they believe is failing to keep their communities safe from violence.

School shootings are tied to this failure to ensure public safety by the government.  In Uvalde, you had an unsecured school with broken locks on its doors and police that did not act on their training and duty when called upon to do so.  This is the government’s part of the failure.  The killer was clearly deranged and there was no mechanism to report this to the authorities in such a way that this person might have been taken out of the community and receive the kind of treatment that would lessen the chance of them becoming a danger to society. The US has about 50,000 beds for inpatient mental health treatment and the estimates are that about 3 million people are walking around in society with serious mental health problems that are untreated. Some 24,000 of them committed suicide with a firearm last year. Some others on rare occasions, decide to take a bunch of people with them when they commit suicide and enter a school with a gun and lots of bullets.  We don’t say that if guns were banned, those 24,000 suicides(veterans among them) would not take place, because we intuitively know that is magical thinking.  No guns doesn’t mean an end to suicides.

In 1978, an American religious cult leader named Jim Jones killed 909 people in Guyana with a few gallons of Kool-Aide laced with cyanide. If there is a will, there is a way.

Here we will present to you the bill’s contents along with our analysis of how they affect things like Due Process, the right to a means of self-defense, constitutional questions, and proper division of implementation by the states and federal governments.

A Brief Background

A group of 20 senators composed of 10 Democrats and 10 Republicans recently signed a statement that worked on a new framework for gun control, specifically with the ability of authorities to keep firearms out of reach for people who are a potential threat to themselves and others people. A judge will decide whether the possible gun owner is a threat to themselves or other people.

Another focus of the deal is federal criminal background checks for potential gun owners younger than 21. This includes a search of juvenile justice records and mental health records before purchasing a firearm.

Senator Chris Murphy was particularly optimistic about how cooperation on both sides could result in a compromise and have a breakthrough in combatting gun violence.

My speech tonight on the Senate floor, introducing our life saving bill – the Bipartisan Safer Communities Act. pic.twitter.com/FEfKhJ6zrc

— Chris Murphy 🟧 (@ChrisMurphyCT) June 22, 2022

“This is also the moment where we break the logjam. This is the moment where this 30-year impasse is broken,” Murphy stated. “I think folks are really anxious about the state of violence in this country, and they really want Washington to show that it can deliver.”

On the other hand, Republican Senator John Cornyn, who also happens to be the GOP’s lead negotiator, stated that he was also all for a comprise with the Democrats. But this compromise is only on the table if the resulting bill will preserve gun owners’ rights as prescribed and enshrined in the Second Amendment. To Cornyn, it is about ensuring that the existing system “works as intended.”

There is no room for compromise with our God-given rights @JohnCornyn pic.twitter.com/EbMPjR3xAs

— Gun Owners of America (@GunOwners) June 21, 2022

It is important to note that during these discussions, the agreement did not include a provision supported by President Biden, wherein the law would raise the minimum age for the purchase of some firearms from 18 to 21. Note that the 21-and-older rule already regulates handguns.

Also absent was an outright ban on the ownership and possession of AR platform rifles.

Some critical possible provisional changes include the funding of mental healthcare, behavioral intervention programs, school security programs, and campus armed officers to protect school districts. Republican Sen. Roy Blunt and Democrat Senator Debbie Stabenow also proposed a network of community behavioral health clinics.

The Boyfriend Loophole

The so-called boyfriend loophole was one of the flashpoints of the debates regarding the new framework. So what exactly is it? The boyfriend loophole refers to a federal law that states those who have been convicted of domestic violence against someone they were married to, cohabited with, and have a child (or children) with cannot purchase a firearm as they might use the gun for domestic violence.

It does not cover those simply dating or those in a relationship phase other than cohabitation, marriage, and having children. In simpler terms, it is a loophole that does not deal with unmarried partners. Those with abusive tendencies or histories who are not just in a “dating phase” with another individual can still buy a gun.

Democrats have fought to expand this law to cover these dating phases, as well as to cover convicted stalkers and any individuals who are under a protective order. In addition, many states have tried to close the loophole at different levels and in different ways.

The bipartisan group later agreed that the extension is needed to cover those convicted of domestic abuse and in a “serious dating relationship,” but then again, how does one define what this “serious dating relationship” is on legislation? More so, should people convicted of domestic violence still get a second chance to own a gun?

How did they eventually close the loophole? We tackle that in the section below.

What’s Actually In the Bill?

Enhanced Background Checks

The 80-page bill essentially enhances background checks for those who wish to own firearms. Under the new bill, authorities are given ten business days to review the juvenile and mental health records of those under 21. This is referred to as “enhanced search,” where authorities can scan confidential databases to see if the individual is fit to purchase a gun. The standard background check must be completed in 3 days by law.  Extending the waiting period to 10 for those under 21 is hoped to provide a cooling-off period for those who want to purchase a firearm for criminal purposes.

The government is encouraging but not requiring states to enter juvenile records into the system, which only a few states do as well as mental health records which less than half of the states comply with,

Incentives and Implementation of Red-flag Policies

It also enables states to implement the red-flag laws where authorities are allowed to temporarily confiscate guns from individuals deemed dangerous and send them to intervention programs. One such example of this is a policy from California, where family members can petition the courts to directly confiscate weapons from their relatives if they are deemed dangerous. A version of this also exists in other states, including New York. For example, in New York, teachers and family members can petition the courts for protective orders.

There will also be Byrne JAG Grant Funding for states to support crisis intervention programs, essentially allowing states to fund programs within mental health courts, drug courts, and veterans courts, among others. Some $750 million in funding are for these new programs.

Enhanced Coverage for Victims of Domestic Violence

Does it close the so-called “boyfriend loophole”? Yes, it does. The drafters of the bill agreed that “serious dating partners” should be covered by gun laws as members of these serious dating partners can still be subject to domestic violence.

The bill updates the definition of “misdemeanor crime of domestic violence” to individuals that have (or have had) a current or recent continuing serious relationship. Furthermore, according to the bill, a “dating relationship” is a “relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.”

These altogether expand the coverage of the domestic violence provision. As an additional layer of protection, anyone convicted of abusing their partner, current or former, will be added to the FBI’s National Instant Background Check System.

Note that this new provision cannot be applied retroactively and only applies to “current” or “recently ended relationships.”

$15 Billion Investments in Mental Health Services and School Security

As Republican Sen. Roy Blunt and Democrat Senator Debbie Stabenow proposed, community behavioral health centers were also adapted into the bill. According to the bill, some $15 billion will be dedicated to more mental healthcare and school security over five years. This enables more support for telehealth services, new school security infrastructure, and school intervention programs.

Specifically, the government will invest billions into school-based mental health services, improve school security ($300 million), train safety measures for school personnel, early identification, and intervention programs.

Additional Licensing Requirements

Another debated topic was individuals who sold firearms illegally, evading licensing requirements. The bill makes sure that it clarifies those who buy and sell firearms with the primary focus on earning a profit must register as a Federal-Firearm Licensee. This makes it difficult for third-party gun sales (for repeated profits) to continue as they are fined and imprisoned for up to 15 years.

The NRA Opposes the New Bill

In a statement released on June 21st, the oldest and largest Civil Rights organization, the National Rifle Association voiced its opposition to the new Bill saying,

The NRA will support legislation that improves school security, promotes mental health services, and helps reduce violent crime. However, we will oppose this gun control legislation because it falls short at every level. It does little to truly address violent crime while opening the door to unnecessary burdens on the exercise of Second Amendment freedom by law-abiding gun owners.

This legislation can be abused to restrict lawful gun purchases, infringe upon the rights of law-abiding Americans, and use federal dollars to fund gun control measures being adopted by state and local politicians. This bill leaves too much discretion in the hands of government officials and also contains undefined and overbroad provisions – inviting interference with our constitutional freedoms.

Decisions by the Supreme Court of the United States in the Heller and McDonald cases make clear that the Second Amendment is an individual constitutional freedom. We will always fight for those freedoms – and the fundamental values we have defended for over 150 years. ​

The Devil is in the Details

While this Bill will probably end up on President Biden’s desk to sign into law, we still see some problems with it.

With regard to the 10-day background check time period, states tend to apply waiting periods equally to all eligible buyers without regard to age or other criteria.  This is about the 14th Amendment’s clause about equal protection under the law. If the government imposed a 3-day waiting period on white people and a 10 waiting period for black people, it would be instantly struck down on Equal Protection grounds by a court.  In this case, courts may find that having two different waiting periods applied to citizens of different ages may be unconstitutional. Crime studies find that violent crimes are mostly impulsive or involve firearms (or other weapons) that have already been owned for some time. Very few crimes occur with firearms that were purchased on impulse.

There is also the possibility of perverse consequences where such a law could work at cross purposes to its own intent.  Imagine a mother of two children who is 20 years old, under a protective order, and wants to buy a shotgun to protect herself and her children from an abusive boyfriend she fears will act on threats to kill her. While she is waiting for 10 days for the background check to clear, she is killed by her ex-boyfriend.

The Bill does not address what may be the most fatal problem with the background check system.  Some 3 million serious crimes and adjudications of mental incompetence are missing from the database. This means prohibited persons can pass a background check and obtain a firearm because the record of their felony is not in the system at all. This bill doesn’t address or explicitly allocate funds to ensure that these records are updated promptly and completely.

There are also constitutional issues with so-called Red Flag laws. This Bill does not create such laws but will fund states that adopt them or plan to. What these laws do is allow a court to temporarily suspend the firearms rights of individuals on a petition by family members or law enforcement officials who believe someone is a danger to themselves or others. This suspension is not permanent and requires the court to revisit the suspension for review to restore those rights.  These laws can be very controversial to civil liberties advocates who fear Due Process violations and the government abusing these Red Flag laws to disarm citizens arbitrarily. These fears are not without foundation. Generally, people only lose their right to bear arms upon conviction for a felony or by adjudication of mental incompetence, these Red Flag laws can strip these rights on the suspicion of mental instability and could be triggered by any variety of things.

The money allocated by this bill is not limited to spending on just Red Flag laws, it can also be spent on mental health courts, drug courts, veterans courts and assisted outpatient treatment courts. Assisted outpatient treatment is a community-based mental health treatment ordered by a judge.

The definition of Gun Dealers would be changed from those engaged in gun sales ‘‘with the principal objective of livelihood and profit’’ to read those so engaged,  ‘‘to predominantly earn a profit.’’ This would expand the number of persons selling firearms required to perform a background check on a buyer.  It would not prevent an individual from selling firearms to improve a collection or someone from liquidating a personal collection of firearms.

Straw Purchases, the law proposes to crack down on people buying or firearms for prohibited persons but does not really say how it will be done beyond a few word changes in the existing law that seem more like clarifications than a new law.

Except for the expanded background checks on those under 21, there is very little in this Bill that could have prevented the Uvalde shooting and that expanded check requirement based on age will probably be challenged in court.  Members of Congress may already know this may be struck down and did it anyway to get the heat off themselves amid public outcry.  They did the “something” that voters were demanding of them a figured the courts will straighten everything out after it is passed.

It falls far short of comprehensive funding of inpatient mental health treatment for what may be  up to 3 million Americans who are untreated and may be a danger to themselves or others.