Gun Control

Ted Cruz's Gun Control Bill Would Encourage Enforcement of Restrictions That Make No Sense

The Texas senator wants to beef up a background check system that unjustly and irrationally deprives people of their rights.

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If Republicans in the Senate respond to recent mass shootings with new gun control legislation, it is apt to look something like a bill introduced by Sen. Ted Cruz (R–Texas). Cruz's Protecting Communities and Preserving the Second Amendment Act of 2019 already has been criticized as inadequate by proponents of new gun controls. But in several respects it moves in the wrong direction, reinforcing an unjust and irrationally broad system of background checks for gun buyers without doing much to prevent mass shootings.

"I think we absolutely need to act to stop gun violence," Cruz said on Fox News recently. "I was in Odessa right after the shooting in Texas, I was in El Paso right after the shooting there. I've been in Sutherland Springs right after that shooting. I was in Santa Fe right after that shooting. These mass murders, there are too many of them, it is horrific, and we need to act to stop it, but the question is: What is effective to stop mass murders?" He said the solution he favors "targets felons, it targets fugitives, it targets those with dangerous mental illness, and it stops them from getting guns, and it puts them in jail for crimes they have committed before they can murder others."

The first problem with Cruz's approach is that the vast majority of mass shooters do not have disqualifying criminal or psychiatric records. Even in the cases mentioned by Cruz, only two involved gun purchases that should have been blocked by background checks based on current federal restrictions. And those two cases are not representative of mass shootings in general.

The Sutherland Springs shooter had been convicted in military court of crimes that disqualified him from owning guns, but the Air Force failed to share that information with the National Instant Criminal Background Check System (NICS). Congress responded with the Fix NICS Act, which created penalties for federal agencies that fail to share relevant information with NICS. According to Texas officials, the Odessa shooter was disqualified by a "mental health issue" that should have been flagged when he bought the rifle he used in the attack.

If the background check system were working as intended, both of those mass shooters would have been unable to obtain their weapons from federally licensed dealers. Perhaps that would have deterred them. Or perhaps they would have bought guns in private transactions that the government could not monitor even if it notionally required background checks for all firearm transfers.

The El Paso shooter bought his rifle legally, while the Santa Fe shooter used a shotgun and a handgun legally owned by his father. In other words, background checks were demonstrably no obstacle to those crimes, and in that respect they were typical of mass shootings.

Even if background checks seem relevant in only a small percentage of mass shootings, you might think, beefing up the system makes sense if it potentially could deter some would-be killers who are not sufficiently determined to buy guns from other sources when they are turned away by licensed dealers. And even if that doesn't happen, what's the harm in trying to improve enforcement of current laws, as Cruz wants to do?

The problem is that the current federal restrictions on gun ownership go far beyond people who have demonstrated violent tendencies. The disqualified classes include anyone who has been convicted of a nonviolent felony, anyone who has ever been legally required to undergo psychiatric treatment because he was deemed suicidal, anyone who is living in the United States without the government's permission, and unlawful users of controlled substances, including cannabis consumers in states where marijuana is legal and people who use medication prescribed for others or use medication prescribed for them in a manner not authorized by a doctor.

Even the American Civil Liberties Union, which maintains that the Second Amendment does not protect an individual right to arms, recognizes that "the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state's interest in public safety, and raise significant equal protection and due process concerns." Beefing up the background check system means, first and foremost, magnifying the injustice of taking away people's Second Amendment rights even when there is no evidence that they pose a threat to public safety.

Through grants, reporting requirements, and the creation of a Felon and Fugitive Firearm Task Force, Cruz's bill aims to encourage federal prosecution of disqualified gun buyers who lie on firearm purchase forms, which is notionally a felony punishable by up to 10 years in prison. I say "notionally" because such people are almost never prosecuted. According to a 2018 report from the Government Accountability Office (GAO), "federal NICS checks resulted in about 112,000 denied transactions in fiscal year 2017." While "the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) referred about 12,700 [cases] to its field divisions for further investigation," the GAO noted, U.S. attorney's offices had prosecuted only 12 of those cases as of June 2018.

Cruz thinks that's a scandal. But if you consider why these cases are rarely prosecuted, it seems more like a judicious use of law enforcement resources. ATF officials told the GAO that following up on these cases "has been time intensive and required use of their limited resources." Justice Department officials said "prosecuting denial cases can require significant effort and may offer little value to public safety compared to other cases involving gun violence" (emphasis added).

A 2004 report from the Justice Department's inspector general sheds further light on the sort of gun buyers who are typically flagged by background checks. If the FBI cannot complete a background check on a gun buyer within three days, the dealer is allowed to complete the sale, so the ATF, which is part of the Justice Department, is sometimes tasked with seizing guns after the fact from people who are not legally allowed to own them. The inspector general noted that there were often delays in retrieving weapons from prohibited buyers, partly because "ATF special agents did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly" (emphasis added).

If these people were not actually dangerous, one might reasonably wonder, why were they barred from owning guns in the first place? If Cruz gets his wish, we will see more prosecutions of would-be gun buyers who are disqualified for reasons irrelevant to public safety. Will you feel safer knowing that medical marijuana users, illegal immigrants, and people treated decades ago for suicidal impulses are more likely to be imprisoned when they try to exercise the fundamental right to armed self-defense?

Cruz's bill also includes new grants and reporting requirements aimed at encouraging federal agencies to share "relevant" records with NICS. But those records are relevant only in a strictly legal sense. Given the unreasonable breadth of current restrictions on gun ownership, such information won't necessarily be relevant to the question of whether a would-be buyer is dangerous. Before trying to "improve" enforcement of those restrictions, Congress should take a fresh look at whether they make sense as part of a system that is supposed to "stop gun violence." As it is, Cruz is casting a very wide net that will capture far more harmless people than violent criminals.

NEXT: 11 Cases Everyone Should Know from the White and Taft Courts

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  1. The important thing to note is Republicans are for some kind of gun control. The details don’t really matter.

    1. Actually, they matter a lot, in the same way that your grandma who doesn’t really trust black people is not the equivalent of Hitler.

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    3. Rs aren’t really for gun control. They’re just weak and don’t feel comfortable telling the harpies in the news “no.”

  2. Memory says Cruz won a squeaker last time. Does he think authoring a gun control bill will win him more Democrats’ hearts and minds than the Republican ones he loses? He’s setting himself up to be primaried.

    1. The Republican leadership find being in the majority tedious; There’s a lot of work involved, and all those voters constantly asking, “Why aren’t you delivering on your campaign promises?”

      I think they’re trying to end up back in the minority, where hopefully the Democrats will keep them around as a show opposition so as to avoid being accused of running a one-party state. Not as much graft, but a lot less work, seems like a reasonable tradeoff to the GOP leadership, who are mostly in secure seats anyway.

      It’s been a long standing problem that the GOP establishment aren’t really ideologically in tune with their own voters. Sometimes they just can’t be bothered to hide it.

      1. They think they have to Do Something to pacify the non gun owning mob they perceive out there. Standing on the motion of an absolute civil rights gives the appearance of being unreasonable. Granted the problem of conceding a civil right once, where can you say “this far, no farther”?

        1. Standing on the motion of an absolute civil rights gives the appearance of being unreasonable.

          The Constitution is not the Word of God. If you don’t like the “absolute” Bill of Rights you are free to petition for amending it. Is that unreasonable?

          1. I was more explaining what I think Cruz’s and the GOP leadership’s intent is. I do not agree with it.

  3. “anyone who is living in the United States without the government’s permission,”

    As I keep pointing out every time you bring this up, denying such people the right to own guns is not problematic, because as soon as they are identified, they should be deported. At which point the question of whether they can own a gun in the US becomes irrelevant.

  4. NO MORE INFRINGEMENT!!!! we, as gun owners , not only shouldnt give a thousandth of an inch, we need to start rolling back current infringements

    1. Then vote Libertarian. THAT sends a message to Washington.

  5. “I was in Odessa right after the shooting in Texas, I was in El Paso right after the shooting there. I’ve been in Sutherland Springs right after that shooting. I was in Santa Fe right after that shooting.”

    And WTF does that have to do with anything? Okay, so you went there and felt the fealz. Congrats. You’ve officially given in to supporting the notion that somehow the personal experience of you and others trumps logic, reason, and evidence.

    1. If only he could be there during the next mass shooting instead of after….

      Kamala could be his plus one

    2. “You’ve officially given in to supporting the notion that somehow the personal experience of you and others trumps logic, reason, and evidence.”

      First hand experience? It’s all flim flam. Nothing gives you a clearer perspective than sitting in the basement in a dirty tshirt in front of a computer screen.

      1. Throw in a bottle of Jerkins and you would call it Friday night.

  6. The first problem with Cruz’s approach is that the vast majority of mass shooters do not have disqualifying criminal or psychiatric records.

    “But we have to do SOMETHING!!”

  7. There are always Republicans naive enough to believe that if they make a compromise with antigunners it will buy them some slack. It never does. But for some reason they can’t figure it out.

    1. “There are always Republicans naive enough to believe that if they make a compromise with antigunners it will buy them some slack. ”

      Not slack, votes. They are politicians and have their eyes on the prize.

  8. I notice that Cruz didn’t put forth this nonsense until after he squeaked past Beto O’Rourke.

    1. Ah! The power of spoiler votes rests on the looters’ fear of being beaten out of a place at the trough. This is why the LP changes laws so effectively with relatively few votes.

  9. Wait guys! I’ve got this really fantastic way to stop mass murders forever! What if we just make murder illegal? You can’t kill people if it’s illegal.

    Checkmate, terrorists!

  10. you might think, beefing up the system makes sense if it potentially could deter some would-be killers who are not sufficiently determined to buy guns from other sources when they are turned away by licensed dealers.

    Or if they can’t find black market guns easily, maybe they turn to IEDs instead and kill even more people than the could have with guns.

  11. geez Ted you’re worse than Kay Bailey Hutchison anymore…

  12. Ted Cruz is just another phony who sleeps with a border hating CFR member…
    his wife………..

  13. “Ted Cruz’s Gun Control Bill Would Encourage Enforcement of Restrictions That Make No Sense.

    Well, yeah.
    Isn’t that what republicans and democrats do?
    Try to enforce laws that make no sense?

    1. Just wait. The next laws will make sense.

  14. Everybody knows that he is a RINO. MAGA, TRUMP2020 , BUILD THE GREAT WALL,, KEEP AMERICA SAFE AND KEEP OUR GUNS.
    \

    1. “I like taking guns away early,” Trump said. “Take the guns first, go through due process second.”

    2. Rino? Trump? Bump stocks?

      You do realize this is a Libertarian site?

  15. Trump: ‘That Ted Cruz . . . lyin’ Ted . . . and his wife, she’s a pig.’

    Cruz: ‘Now, stop right there, Donald. Don’t you go talking about my wife. She’s a saint, and I adore her, and you can’t talk about her like that.’

    Trump: ‘Not just a pig, Lyin’ Ted . . . she’s really, really ugly . . . hideous, even.’

    Cruz: ‘Now you’ve gone too far, Donald. Take it back. Right now.’

    Trump: ‘Lyin’ Ted. Wife’s a pig.’

    Cruz: ‘Now you’ve crossed the line, Donald. If you want to get me riled, you sure picked the right way. Now you apologize right now or you’ll be sorry.’

    Trump: ‘Lyin’ Ted, Lyin’ Ted, with the hideous, grotesque wife. Here, everybody, here’s a picture of this pig Ted married. What is Lyin’ Ted going to do about it?’

    Cruz: ‘You don’t want to find out what I’m going to do.’

    Trump: ‘You still talking, Lyin’ Ted? Get back to me when you’re ready to do something.’

    [more than a year passes]

    Cruz: ‘Donald? This is Ted Cruz.’

    Trump: ‘You again? Really? You finally decide you’re going do something here, Ted, or what?’

    Cruz: ‘You know, I have decided to do something, sir. I’m going to . . . invite you to Texas, to campaign with me.’

    Trump: ‘You serious?’

    Cruz: ‘I am, sir. We’ll have a big rally, show people we’re on good terms, you know what I’m talking about.’

    Trump: ‘OK, sure, I’ll come down to Texas with you, Ted. You know what, Ted? You’re a good boy. I don’t get why nobody in the Senate can stand you.’

    Cruz: ‘Well, Donald, I don’t think we need to get into . . . ”

    Trump: ‘You’re right. Forget it. Just . . . I’ll have my people set up the rally. Oh, and say hello to your wife for me.’

    Cruz: ‘Will do, Mr. President! Thank you, sir.’

    Trump [after hanging up]: ‘What a putz.’

  16. How droll… Lyin’ Ted mopped the floor with “ban energy” Beto O’Uninspected Entry. Libertarian candidate Dikeman, “concerned about global warming” was deservedly beaten as well. Both candidates lost for being worse at debating and wronger than Ted on issues. Texans will see this as Their Boy’s insincere grandstanding to draw attention from something less vulnerable than the Second Amendment–like forcing women into involuntary labor in violation of the 9th, 13th and 14th Amendments.

  17. Prohibit firearm possession by those here illegally?
    OF COURSE!!!!! If they’re here illegally they are quite likely to be up to OTHER no good stuff. Apply and go through the process, become an IMMIGRANT instead of an INVADER, and buy all the guns you want, I’m fine with that.

  18. By far the vast majority of false DENY codes in NICS are because the system tends to confuse similar names, even when date and/or city of birth are different. This is really a stupid thing…. WHY can’t tey design the system to not return any code (proceed, deny, hold) until/unless ALL FIELDS entered match?

    Build the database on the name exactly as entered in the Social Security System….. that never changes, except by court order, marriage, etc, then both names remain in their system. Mandate the name must match the SS account/s name. Off by one letter, deny for mismatch. Not prosecutable.
    Start there… then require date of birth, city of birth, and sex to also match. If all that informatioin does not match, return a “mismtch” code, which will stop the sale but not prompt an investigation. No more “well, this guy’s name is kinda sounding like that guy’s name, never mind they are twelve years different in age and were born in two different cities….. NO WAY could that be the same person, yet the vast majority of false DENY codes fall into that category. FIX the stupid system to elminate that.

    NOW any DENY codes will be worthy of investigation… because if all FOUR of those fields match, and a DENY is returned, something is fishy, and investigate.

    YES, make it a prosecutable offense for any public employee whose duty it is to report disqualifying information to BFBI/NICS. Those two Air Force desk jockeys who SHOULD have forwarded the information on his indictment and later conviction SHOULD be prosecuted for accessory to the crime of those 26 murders in Sutherland Springs.

    but all this will do is drive anyone REALLY determined to kill a large group of innocents to either find a firearm thorugh other means, (make, steal, find, liberate, borrow) or figure out a completely OTHER means of perpetrating his crime.. l
    ike the punk who threw the fire alarum at an Ohio college, knowing they’d dile, like dutiful lemmings, out of THAT door, then he got into his beater college student jalopy, drove round to THAT door and rammed into a bunch of students crowded together with no where to go but back into the “burning” building. Or the clown rented a Home Depot truck and crashed into a mass of folks on the bike/pedestrian path in Manhattan.

    The problem is NOT the gun.car/pressure cooker. The problem is the one USING it.

  19. One other thing.. I was reading today in a spanish language newspaper in a city a hundred miles south of mine, and found an article containing a plan I’d not yet heard of….

    enact new legislation providing for rapid prosecution of any who perpetrate mass murder (use FBI’s current definition.. four or more victims in the same event not including any perpetrators) fast track their “appeals”, and VERY QUICKLY EXECUTE THEM once solidly convicted. WHY do these guys languish in high security prisons for decades on OUR nickel, and justice never meted out? Estalish a high bar for conviction, and once convicted execute them within less than a month.

    If EVERY would be mass murderer were to realise that IF they survive, and IF they are convicted (which would be VERY likely in any of the cases I’ve read that happened in the past ten years, ) they WILL surely be executed. And I personally think the ONLY appropriate means of exectution would be a firing squad, no mask. And televise it so any other would be perps would see first hand what they would face were they to carry out their plan and survive. Suicide by cop, or suicide by firing squad, your choice. Better yet, don’t murder. Death, a public humiliating death ,WILL be your reward.
    THe article I read stated Trump, Pense, and Barr are all discussing this…… I like it, a lot. WHY is the Fort Hood killer still breathing some ten years later? Or the sick punk who murdered his Mum, stole HER guns, then went and shot up a school, still breathing?

  20. I am a bit conflicted on this. I realize many are denied for stupid reasons and don’t deserve to go to prison. On the other hand I also understand the idea that stop proposing new laws until you enforce the ones you already have. A good number of gun charges against actual criminals aren’t prosecuted or are pleaded down and I am a bit tired of my rights being attacked because they don’t want to prosecute the very people causing problems.
    Like I said I am conflicted. Do I support background checks and gun restrictions? Nope. I actually support most felons getting their rights to own a gun and to vote back after they served their sentence (including parole). There are a few classes of felons I am leery of giving their rights back, but not enough to condemn the whole idea. However, if we are going to be forced to go through a background check, I would like to see the criminals who are lying actually prosecuted for lying. It is a conundrum.

    1. Retailers did and do support background checks. Here is why.

      Prior to background checks, what would a retailer do if a young black man wearing gang colors asked to buy a frirearm.

      Sell the firearm, and if the firearm is used in a drive-by shooting resulting in one or more murders, the retailer is sued for negligent entrustment. (This was before the PLCFA)

      Refuse to sell, and the retailer could be hit with an anti-discrimination lawsuit by the end of the day.

      With a background check, the retailer merely runs the check and makes the sale dependent on if the buyer passes and has cash.

      1. Ugh, this “negligent entrustment” is just as stupid as “negligent hiring”. No wonder we have so much recidivism and incarcerate more per capita than any other nation in the world. We are the country of “You only get one chance”. For a public that screams Judea-Christian values, they must have skipped over the part about forgiveness. We, as a country, make it almost impossible to live a normal life for someone who has ever committed a crime and served their time. We need to fix this.

    2. You claim you’re leery of a few classes of felons. If we as society see it fit to release them back into society, then they should have the same tools to succeed as anyone else.

  21. Well, yeah.
    Isn’t that what republicans and democrats do?
    Try to enforce laws that make no sense?

  22. So wait, Jacob Sullum, is AGAINST Universal Background Checks?
    I thought that’s what the Democrats want?
    To: Robert Francis “Beta” O’Rourke – ΜΟΛΩΝ ΛΑΒΕ

  23. The Odessa shooter WAS flagged as ineligible to buy a firearms because of a history of mental illness, and was not able to buy a gun from an FFL. He subsequently bought a gun via private sale.

  24. We can’t have it both ways. We intentionally have a hamstrung background check system, in order to prevent the feds from building a database of gun owners.

    But then we need to actually have mechanisms to implement the system we have. We either need to give them more time to run their checks, or have a provision to unwind the sale if someone is in fact a prohibited person.

    Perhaps a parallel improvement would be to reduce the number of BS reasons to deny someone a purchase. But that is really a separate question.

  25. The existing background check system needs to be fixed but not the way the Democrats and “Gun Safety” groups want. They want to keep adding more and more criteria for prohibition. In reality what they are doing is changing the problem from trying to find a needle in a haystack to trying to find a needle in a hay mountain. Federal law [18 USC § 922 – Unlawful Acts], as it is currently written, is far too broad and includes many persons that are not nor have they ever been a danger to themselves and/or others. This law needs to be changed such that the only prohibitions are: people who are adjudicated in a court of law to be a threat to themselves and/or others are ineligible to possess, receive, ship, or transport firearms or ammunition. Exceptions and limitations to the adjudication rule shall be:
    • Persons convicted of crimes in a criminal court are ineligible. This ineligibility ends after any incarceration is complete. This ineligibility may be extended by the court to include any parole and/or probation sentence is complete, but only in cases of violent criminal convictions.
    • Persons certified as a danger to themselves and/or others as a result of mental defect or incompetence either by voluntary individual certification or by a court of law, are ineligible. This ineligibility ends after any commitment unless the court determines that the ineligibility extends until any supervised outpatient treatment is complete.
    • Fugitives from justice, when charged and/or convicted of a violent crime.
    Revocation of US Constitutional rights, beyond what is identified herein, is separably subject to review and appeal in Federal Court.

  26. Republicans, Democrats two sides of the same coin; each playing good cop or bad cop as needed to get more needless laws on the books.

  27. 98% of mass shootings happened in “gun free” zones. Rather than make it more difficult for people to own guns, it should actually be the other way around. We need to make it easier to access a right that “must not be infringed”. We need to allow legal gun owners in more places without question. Open carry should be taught to be a normal sight, not someone to fear. I only agree with felons losing the right for a specified amount of time after release, but not for life. This is the only right in the bill of rights that felons lose for life. 5 years sounds appropriate to me with 10 for violent felonies. 2 unrelated violent felonies should lose it for life. More gun restriction laws seem to always breed more gun crime in the areas of the new restrictions. When will lawmakers realize this?

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