A Libertarian Case for Expanding Gun Background Checks? I Am Still Waiting to Hear One.


Cato Institute

Writing in The New York Times, Cato Institute Chairman Robert Levy—who spearheaded the litigation that led to D.C. v. Heller, the landmark 2008 decision in which the Supreme Court recognized that the Second Amendment guarantees an individual right to arms—makes "A Libertarian Case for Expanding Gun Background Checks." Oddly, the essay, on which Levy expands a bit here, neither explains why expanding gun background checks is a good policy nor justifies it based on libertarian principle. Instead Levy offers two tactical reasons to support the bill backed by Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) that would have required background checks for all sales at gun shows (not just those by federally licensed dealers) and all sales initiated through online listings or ads in periodicals.

"Following a series of tragic mass shootings," Levy says, "public opinion is overwhelmingly in favor of reasonable legislation restricting the ownership of guns by people who shouldn't have them." If Levy means that public opinion is overwhelmingly in favor of the Manchin-Toomey measure, I'm not sure that's true. A Pew Research Center poll conducted after the Senate rejected the bill found that only 47 percent of Americans reacted negatively to the vote. Levy nevertheless warns that if gun-rights advocates refuse to support the bill ("with a few modest changes"), "they will be opening themselves to accusations from President Obama and others that they are merely obstructionists, zealots who will not agree to common-sense gun legislation."

Strikingly absent from Levy's op-ed piece and blog post: any attempt to show that an expanded background-check requirement counts as "common-sense gun legislation," either because it would prevent "tragic mass shootings" or because it would reduce more common forms of gun violence. For reasons having to do with criminals' ability to pass or evade background checks, both of those propositions are doubtful. Since Levy does not even try to defend them, I take him to be arguing that gun control skeptics should support Manchin-Toomey, even if it has no logical connection to the horrifying events that supposedly justify it, because otherwise Obama will try to make them look bad.

That is an argument, but I don't think it qualifies as a libertarian argument. To the contrary,  it counsels surrendering to the panic of the moment and endorsing whatever cockamamie solution politicians are peddling for the sake of preserving one's credibility as a caring, compassionate, and reasonable person. Such symbolic policy making, as manifested in areas ranging from airport security to the war on drugs, has not been friendly to libertarian concerns.

The other major reason Levy offers to support the Manchin-Toomey bill is that it includes various provisions aside from expanded background checks that defenders of the Second Amendment should welcome, such as legalization of interstate handgun sales and a new criminal penalty for misusing firearm records to create a registry. Yet these sweeteners were added precisely to make the expanded checks easier to swallow, which suggests there is indeed something objectionable about them—a point Levy seems reluctant to concede. "Extending background checks to unlicensed sellers shouldn't be cause for alarm," he says, because "background checks are already required for purchases from federally licensed dealers, whether at stores or gun shows, over the Internet or by mail."

Yet there is a reason for this differential treatment: Congress concluded that it was unfair to burden people who sell guns occasionally with the same requirements as people who do it for a living. If Levy thinks that judgment was wrong, he should explain why. Expanding the background-check requirement not only inconveniences people who want to sell their guns (a point Levy indirectly acknowledges when he calls for exempting private sellers who live in rural areas far from a licensed dealer). It also exposes them to uncertain legal risks. Manchin-Toomey, for example, applies to private sales "pursuant to" certain kinds of speech (online and print ads) but not others (flyers, signs, word of mouth). If a gun owner uses one method from each category, how does he know which led to the sale? Is he obliged to ask would-be buyers how they heard about his gun? It is unjust to make criminal penalties hinge on such distinctions. 

Another problem with citing existing background checks as a reason to have more of them: It takes for granted that the criteria for stopping people from buying guns are fair and sensible, which they are not. Levy alludes to this issue when he notes that "existing law denies firearms to anyone who is 'an unlawful user of or addicted to any controlled substance.'" Because of that disqualification, he says, "every would-be gun owner who lies to NICS [the National Instant Criminal Background Check System] about marijuana use, and every owner who smokes marijuana, could spend a decade behind bars—an unconscionable punishment that must be rectified." To my mind, the problem here is not that the penalty for lying about one's status or illegally possessing a gun is too severe but that it is simply wrong to strip someone of his Second Amendment rights because he smokes pot or uses Vicodin prescribed for a relative.

Likewise, it is hard to justify permanent loss of a constitutional right for anyone with a felony record, whether or not the offense involved violence or even a victim. Other disqualifying criteria, such as those based on military records or immigration status, also seem unnecessarily broad and tenuously related to the ostensible goal of preventing gun violence. As I noted in a recent column, gun buyers flagged by background checks are rarely deemed threatening, which helps explain why they are almost never investigated by the feds, even though they have committed a felony by trying to a buy a gun (assuming they knew they were disqualified). If the rules enforced by background checks make little sense, why enforce them better?

A utilitarian case for compelling gun sellers to run background checks would argue that such a requirement is reasonably drawn and effective enough at preventing crime to justify the costs it imposes. A libertarian case would go further, grappling with the issue of whether the government should punish people for actions that violate no one's rights. My gun is my property. If I transfer it to another adult on mutually agreeable terms, why is that anyone's business but ours? By what right does the government threaten to imprison me because I did not follow the arbitrary conditions it has presumed to impose on such transactions? If the justification is simply that the person to whom I sell my property might (but almost certainly won't) use it to commit a crime, there is no end to the meddling that might be considered appropriate.