Background Checks Violate Property Rights

Authored by Benedict LaRosa via The Future of Freedom Foundation,

In the early 1990s, I accompanied a friend and his 12-year-old son to a local gun show. My friend wished to purchase a .22 caliber rifle with which to teach his son to shoot safely and effectively. After much browsing, he found one at a reasonable price, one that suited both his needs and those of his son. The seller, a federally licensed firearms dealer, handed my friend an ATF Form 4473 to fill out. When my friend asked him why he had to fill out the form, the dealer answered that he could not purchase the weapon without doing so.

At this point I inserted myself into the conversation. I told the dealer that the restriction was not on my friend, who was free to purchase firearms without filling out anything, but upon him. As a dealer, he had accepted a license from the federal government to engage in the business of buying and selling firearms and was thus subject to the terms of that license. One of the terms was that he could not sell them to anyone who didn’t fill out the ATF Form 4473. In addition, the dealer has to keep the form on file for inspection by the Bureau of Alcohol, Tobacco, and Firearms (BATF). The same is true for the background check; it is imposed on the dealer as a condition of his license.

The Democratic Party-controlled U.S. House of Representatives has introduced a bill to force everyone to undergo a background check to sell, purchase, transfer, loan, or otherwise exchange firearms, which would require anyone wishing to do so to find a dealer and pay him to do the paperwork involved. This is an added and unnecessary expense especially for people living in rural areas where guns are borrowed, sold, or traded routinely, and where there may not be a licensed dealer within a reasonable drive. Such people would find it difficult, if not impossible, to comply.

More important, Congress has no jurisdiction over the private property of individuals. Therefore, the requirements of that license cannot apply to them. Since the acquisition and disposal of property is a fundamental right, no one needs government permission to acquire or dispose of his legally acquired property. As Armen A. Alchian (1914–2013), professor of economics at the UCLA and who is often called “the Armenian Adam Smith,” pointed out in his article “Property Rights”: “A property right is the exclusive authority to determine how a resource is used…. A private property right includes the right to delegate, rent, or sell any portion of the rights by exchange or gift at whatever price the owner determines…. Private property rights are the rights of humans to use specified goods and to exchange them.”

If passed, this would set a dangerous precedent, for if government has the authority to impose a background check for guns, it can impose a background check to purchase, sell, transfer, or loan privately owned cars, cell phones, homes, or anything else. Our system of justice operates on precedent. This is why the question posed to all federal judicial appointees during their confirmation hearings is whether they will respect and uphold precedent. Once a precedent is set, it is easy to expand the coverage of a law or pass similar legislation based on that precedent. An example is Medicare. It started as medical coverage for the elderly. Now try arguing against Medicare for all. The precedent was set by the first Medicare law. If the federal government has the authority to pass Medicare for some, it has authority to pass Medicare for all. The same is true of gun laws. If government can dictate under what conditions you may acquire and dispose of firearms, it can later use the same precedent to tell you how to acquire and dispose of any other piece of personal property.

So far, background checks have done little, if anything, to curb gun violence. Criminals and those with criminal intent obtain guns regardless. All background checks do is irritate legitimate buyers, raise the cost of gun ownership, encourage government usurpation, put buyers in legal jeopardy, and form the basis for gun registration, which inevitably leads to confiscation.

If the intent is truly to make it more difficult for prohibited persons to acquire firearms, it could be done easily, without placing economic and other burdens on anyone, or violating their rights. Right now, the check is done by the FBI through licensed dealers, at the expense of the gun purchaser, with the purchaser’s Social Security number exposed to strangers. Instead, the state could simply put the list of prohibited persons – updated at its discretion – on its website so that anyone can determine who may purchase a firearm. Criminals wouldn’t use the site any more than they will comply with a universal background check law. Law-abiding gun owners would gladly use this system because they have an incentive to keep firearms out of the hands of prohibited persons, for they may be their future victim.

Although it has not stopped Congress from passing gun-control legislation in the past, it is still important to understand, and worth repeating, that there is no authority in the U.S. Constitution for gun control under any pretext. There is also a strongly worded prohibition against it in the Second Amendment. But until enough of us are willing to hold our elected representatives accountable for violating their oath of office and usurping authority, they will continue to encroach upon our rights while making us pay for our own bondage.

We would be wise to learn the lesson of history regarding precedents and usurped power:

“The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.” – James Madison, 1785

“Precedents do not stop where they begin, but, however, narrow the path upon which they enter, they create for themselves a highway whereon they may wander with the utmost latitude .” —Velleius Paterculus, Roman historian, (19 BC-31 AD)