The Case for Resurrecting the Manchin-Toomey Gun Bill

Libertarians should endorse a compromise solution that moves gun policy in the right direction.

Jacob Sullum's April 30 post at Reason.com takes issue with my New York Times op-ed, "A Libertarian Case for Expanding Gun Background Checks." Essentially, Sullum's objections are that I "neither explain[] why expanding gun background checks is a good policy nor justif[y] it based on libertarian principle." He's right on both counts. But that doesn't alter my conclusion that gun rights advocates would be better off if an improved version of the Manchin-Toomey compromise were enacted.

For starters, in papers like The New York Times, authors don't select the title of their published op-eds. That's up to the editors. My title, as submitted, was "Manchin-Toomey: The Case for Resurrection." The article was not intended to rest on libertarian principles—but it was intended to promote a pro-liberty result.

Moreover, I have no illusions about the efficacy of expanded background checks. Indeed, I've written at length in the National Law Journal and elsewhere expressing great skepticism about gun controls in general and background checks in particular. I do not believe that such checks will reduce random mass killings such as occurred in Newtown.

Nonetheless, on the merits, even if Manchin-Toomey will have little or no effect on gun violence and isn't the legal regime that libertarians would like, the compromise bill is superior to the legal regime we now have. The relevant comparison is not Manchin-Toomey vs. no background checks. Instead, it's existing law vs. the improved version of the bill that I've recommended.

The broader philosophic question is whether libertarians should endorse a compromise solution that does not comply with pristine libertarian principles. My answer is yes, if the compromise moves us in the right direction and we declare on the record our more principled position. That's why most libertarians support private Social Security accounts and school choice even though we believe that government should not be involved in personal retirement decisions and education.  

Libertarians cannot implicitly embrace a one-way ratchet whereby our opponents expand the powers of government, but we are precluded from trying to contract those powers because a proposed compromise wouldn't be ideal. We usually face this choice: Accept whatever legal regime is implemented by the state, or try to minimize the damage that's done when the state overreaches. I find it puzzling that some libertarians would tolerate rather than reduce the impact of government regulations that they believe to be unwise or unconstitutional. In short, the perfect must not become the enemy of the good.

In a lengthier blog post on Cato@Liberty, which responds to some of the concerns raised by Dave Kopel in National Review Online, I enumerate 10 benefits of an improved Manchin-Toomey bill: (1) interstate handgun purchases from dealers; (2) layers of protection against a federal registry, including criminal and civil damages plus codification of Justice Department regulations on data destruction; (3) a two-thirds reduction in maximum time for a background check, (4) exemptions for holders of carry permits and some rural residents; (5) liberalized rules for interstate transport; (6) legal immunity for all sellers (absent complicity); (7) better mental health data for NICS, with due process protections for veterans; (8) partial public funding of fees for background checks; (9) equal processing priority for gun stores and gun shows; and (10) reduced penalties for marijuana-related offenses by gun buyers and owners.  

Gun rights proponents should welcome those changes. Gun controllers might disapprove. But that would simply mean status quo ante, with different politicians characterized as obstructionists. If nothing is done, there will be a political price to pay. I would prefer that the anti-gun crowd pay that price. That said, my primary argument for Manchin-Toomey is substantive, not political.  

Here are the offsetting concessions in the bill: (1) Private buyers at gun shows will be subject to a background check if the seller is unlicensed. But note that licensed dealer sales at gun shows are already covered, and private, in-person transactions will still be exempt from checks everywhere except on the grounds of a gun show. (2) Sales over the Internet and through published ads will be subject to a background check. But note that those transactions are already covered if the seller is a licensed dealer or if the transaction involves a handgun and the parties reside in different states.  

From my perspective, those are modest concessions vs. significant benefits.