License Required: The Alarming New Mantra from Gun Prohibitionists

ANALYSIS: Gun control proponents have latched onto a new mantra in their effort to reduce the number of guns—and gun owners—on the U.S. landscape, reluctantly recognizing that so-called “universal background checks” are not the solution to violent crime involving firearms, nor have they prevented criminals from getting guns.

The latter fact is underscored in a recent online GUNS magazine report covering incidents in several states where suspects have been charged with “felon in possession” of firearms. The “dirty little secret” is that criminals don’t obey gun control laws, a fact that seems elusive to gun control proponents.

Writing at Vox, reporter German Lopez observes, “A license system…is more comprehensive. In Massachusetts, one of the few states with a license system, obtaining a permit requires going through a multi-step process involving interviews with police, background checks, a gun safety training course, and more. Even if a person passes all of that, the local police chief can deny an application anyway. That creates more points at which an applicant can be identified as too dangerous to own a gun; it makes getting and owning a gun harder.”

The acknowledged end result is a reduction in gun ownership by placing hoops through which prospective gun owners must jump before they can exercise their rights under the Second Amendment.

And that’s where this scheme could collide head-on with the Bill of Rights. Reading Vox, and an Op-Ed in the MinnPost.com by second-generation U.S. citizen Eric Ryu reveals what appears to be a complete lack of understanding about the differences between fundamental rights and government-regulated privileges.

Proponents of this new approach to gun control, and every other form in fact, habitually quote a single sentence in the Supreme Court’s ruling in District of Columbia v. Heller: “Like most rights, the right secured by the Second Amendment is not unlimited.”

They habitually avoid noting the language in the final paragraph of the majority opinion, which states emphatically, “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Complete bans on certain types of firearms, especially those in common use, don’t pass muster. The question perhaps searching for an answer is whether the Constitution allows government to require a permit—that is, forcing someone to obtain permission from government—to exercise a fundamental right, thus rendering it no right, at all. Does this amount to prior restraint?

Anti-gunners appear to favor a Massachusetts-type system because it gives the government veto power over the exercise of a right.

In Ryu’s case, he contends, “These permits require extensive background checks. To receive and renew a permit, a prospective gun owner must provide documents to prove legitimate reasons for gun ownership and physical and psychiatric assessments.”

This suggests a fundamental misunderstanding of the difference between rights and privileges. Rights are something the exercise of which one should never be required to justify because they are rights, enumerated by the Constitution. And the right to keep and bear arms is second on the list. The “legitimate reason” exists because it is a right. No further justification should be necessary.

Vox also mentions “mandatory buyback” of firearms as a way to reduce the number of guns in private ownership. In the firearms community, that is called “compensated confiscation.” It’s not voluntary, and there would be penalties for non-compliance. It doesn’t really matter if some other countries have done this. They do not have a Second Amendment in their constitutions, which proponents of licensing and “compensated confiscation” schemes choose to ignore.

A recent unanimous ruling by the Supreme Court in a Fourth Amendment case known as Caniglia v. Strom reveals a decided change in the landscape. In a case from Rhode Island, the high court reversed lower courts and ruled that police violated the rights of Edward Caniglia by entering his home and seizing firearms without a warrant during what is generically known as a “welfare check.”

While this was not a Second Amendment case, it has bearing on the right to keep and bear arms, and in a time when anti-gunners are pushing so-called “red flag” laws, it bears some examination to determine whether Caniglia might have some impact.

What is most important, though, is keeping a sharp eye on this new “front” in the battle to erode Second Amendment rights. Mandating a license or permit in order to exercise a constitutionally delineated right is an issue that could wind up in federal court, which underscores once again the importance of elections. Donald Trump filled some 200 federal court vacancies and three spots on the Supreme Court. Joe Biden is now in the driver’s seat, with Democrats holding a razor-thin majority in the Senate. If that can be changed next year, with Republicans re-capturing Capitol Hill, it could derail Democrat gun control efforts entirely.