The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Virginia, a compromise gun reform bill endorsed by Gov. Terry McAuliffe (D) has passed the Senate by a large bipartisan majority and appears certain to pass the House. The Everytown gun control lobby, which was founded by former New York City mayor (and, perhaps, future U.S. president) Michael Bloomberg, has been running advertisements against the bill. Closely examined, the Virginia Compromise simultaneously advances arms rights and arms regulation; the pro-rights advocates and the pro-regulation advocates each gain much more than they lose.
In each of the three major items of the legislation, one side gains a lot, while the other side loses hardly any anything. Economists would term the exchange "Pareto optimal." Let's look at each one:
Right to carry
Background: All states have laws to issue permits for citizens to carry handguns for lawful protection of self and others. Virginia, like the large majority of states, has fair procedures for issuing permits. Most states recognize permits issued by other states—but there is much variance in which licenses are recognized by which states. (Unlike driver's licenses, for which all states choose to recognize the licenses issued by all other states.)
The Virginia attorney general—who won a very close election with the help of Everytown—recently announced that Virginia would withdraw its reciprocal recognition of licenses from many other states.
Legal effect of the Virginia Compromise: Attorney general discretion will be eliminated. Virginia will recognize almost all other permits from other states.
Practical benefits for gun rights: Significant. The decision of the Virginia AG was on its way to provoking widespread retaliation—reducing the ability of Virginians to lawfully carry handguns in two dozen other states. In Virginia, there will be more nonresidents lawfully carrying arms, thus increasing the possibility that an armed defender will be present to thwart violent crimes attempted in Virginia.
Practical detriment for gun regulation: Close to nil. Among the 50 states, there are 49 that can say that other states have lower standards for issuing permits. In Virginia, there does not appear to be a problem caused by tourists from states that have lower standards. Before the attorney general withdrew from reciprocity agreements, there had not been any demonstration that non-Virginians carrying in Virginia were causing a violent crime problem.
Background: In Virginia, like most states, the law about selling firearms at gun shows is exactly the same as for selling firearms anywhere else. People who are "engaged in the business" (18 U.S.C. 921) of selling firearms must require their customers to fill out extensive paperwork on every firearm sale. They must also request the permission of the FBI or its state counterpart to sell to a particular customer (the background check).
Legal effect of the Virginia Compromise: At every gun show, there must be a law enforcement officer who has the ability to conduct a background check on prospective buyers. This has no effect on the vast majority of gun show sellers: They have a firearms dealer license because they are "engaged in the business." Thus, under existing law, they already must telephone (or contact via the Internet) the Virginia State Police to obtain permission for the sale.
The Virginia Compromise affects only a gun show seller who is not "engaged in the business"—such as a collector selling part of a collection to raise some money for the family. Even without the Virginia Compromise, collectors could voluntarily ask a licensed dealer to process their transactions. This would require the dealer to fill out all of the records necessary for acquiring a firearm for his inventory, and then disposing a firearm from his inventory. The paperwork includes a four-page federal form, for which which the the dealer and buyer must answer dozens of questions, including the buyer's race and Hispanic status. After the paperwork is completed, the dealer would contact the Virginia State Police to obtain permission. The whole process takes a while, so licensed firearm dealers typically charge a fee for processing this transaction.
The Virginia Compromise adds a new option: Law enforcement officers will be available at every gun show to conduct background checks for sellers who are not "engaged in the business" (i.e., sellers who by law are not allowed to contact the Virginia State Police for background checks).
For private sellers, the use of third parties (either licensed dealers or law enforcement officers) remains optional. McAuliffe would strongly prefer that it be mandatory; however, that was not achievable, given the Republican majority in the both chambers of the Virginia legislature—notwithstanding (or because of?) a last-minute Everytown infusion of 2015 election money for anti-gun Democrats.
Practical benefit for gun regulation: The Virginia Compromise is likely to significantly increase the number of background checks on gun show sales. Although most gun show sales are conducted by licensed dealers (who must already conduct background checks), the new system will encourage private sellers to utilize voluntary background checks.
Why? Under the old system, the private seller must request the services of a licensed dealer, for a fee. There will be the time cost of the paperwork. Under the new system, the private seller can instead request the services of a law enforcement officer. The paperwork for this is considerably less. Although law enforcement is allowed to charge a fee, the fee will likely be less than that charged by firearms dealers; because the paperwork is less, the time is less. Besides, firearms dealers are busy trying to sell their own inventory for a profit, whereas the police officers are not. When you lower the transaction costs (time and money), you get more transactions (background checks).
Practical detriment for gun rights: Legally speaking, none, since everything is voluntary. On the other hand, more private sellers will voluntarily engage with the background check system, which will result in more denials of firearms purchases. This will deny some purchases by people who are genuinely dangerous (e.g., hasve recent violent-felony convictions) and by some who are not (e.g., have a 1972 conviction for marijuana possession).
Domestic violence prohibitions
Legal effect of the Virginia Compromise: A permanent domestic violence protection order will now require the subject to get rid of his or her firearms within 24 hours. Previously, such an order prohibited only acquiring new firearms and transporting firearms.
Practical benefit for gun regulation: Domestic abusers are much more likely to misuse firearms than are ordinary citizens, especially against their abuse victims. Everytown would prefer that the firearms be confiscated by law enforcement, but that would put an extra burden on law enforcement. As a practical matter, there are not enough police officers to conduct house-to-house searches of every person subject to a restraining order. People subject to a restraining order are more likely to comply if they can give the guns away quickly to someone they know, which at least allows them to confer a benefit on a friend.
Practical detriment for gun rights: Virtually nil. Second Amendment advocates have raised strong objections to laws that deprive rights based on mere allegations regarding domestic or mental issues. In contrast, the Virginia Compromise strips arms rights only after proper due process adjudication.
In the Virginia Compromise, each side gains much more than it loses. Gun rights are improved for Virginians who travel outside the state and for non-Virginians who visit the state. Gun regulation is improved by more background checks at gun shows and stronger prohibitions on adjudicated domestic abusers. In practice, each side gives up little or nothing from its core concerns.
The Virginia Compromise supports University of California at Los Angeles professor Adam Winkler's observation that gun rights and gun regulation can be compatible. In Virginia this year, they are synergistic.