No doubt there were problems with the recently considered background check bill. Every proposal has flaws. But the way to eliminate those flaws is to propose sensible amendments. David says that a true universal background check law would easily pass. I can’t disagree more. There is no will among staunch gun rights advocates for such a law—and they did everything in their power to prevent one from being enacted.

Read more about Adam’s arguments for gun control here and here.

Adam Winkler

Winkler is Professor of Law at UCLA and an expert on constitutional law. His book Gunfight: The Battle over the Right to Bear Arms in America, was published by W. W. Norton in September 2011.

The flaws in ALL the background check bills being pushed in Congress and around the country are not drafting errors. They are the product of the Bloomberg lobby. These bills can’t be fixed by amendments. Once you start with the principle that temporary transfers of firearms (e.g., loaning a gun to friends or family) are supposed to be treated like buying a gun in a store, there is no way to write sufficient exemptions to cover everything that should be exempted. The myriad varieties of temporary transfers makes this impossible.

Read more about Dave’s thoughts on gun control in the wake of recent mass shootings here.

Dave Kopel

David Kopel, associate policy analyst, is research director at the Independence Institute and adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law. He is the author of No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix It, Antitrust After Microsoft, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies?, and nine other books. He is an expert on firearms policy, juvenile crime, drug policy, antitrust, constitutional law, criminal sentencing, and environmental law.

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Adam Winkler v. Dave Kopel

Part I

Background Checks


Adam Winkler
It is an honor to join The Repartée with David Kopel, who is in my view the most insightful and learned advocate of a muscular right of individuals to keep and bear arms. Dave’s scholarship has much to teach advocates on both sides of the gun issue; I know, as I’ve learned from it so much. My sense is that David and I agree on a number of gun questions, most notably the existence of a constitutional right of individuals to have guns. Yet we likely diverge on a number of others, including what steps we might take to reduce gun violence and what laws restricting access to guns are constitutionally permissible under the Second Amendment. In American law and politics today, it is those latter questions that matter and continue to divide so many.

In the spirit of this repartee, let me begin by defending the most important reform proposal to emerge out of the tragedy at Newtown: universal background checks. Federal law currently only requires background checks for purchases from licensed gun dealers. Yet you don’t need a license to sell guns—and felons unable to lawfully buy guns can go to gun shows where they’ll find plenty of unlicensed sellers offering their wares. I assume you agree with me, David, that convicted felons should not be able to easily buy guns. Why, then, would a conscientious gun owner—as most gun owners I’ve met are—oppose universal background checks, which make it harder for felons to obtain guns? While some felons would certainly find other sources of guns, shouldn’t we do more to make it harder for them? There’s no reason, in my opinion, why anyone should be able to buy a gun without first passing a background check.

Dave Kopel
If more people approached gun policy the way Adam Winkler does, we could make a lot of progress towards better gun policies. Adam’s essential insight, which is very well presented in his book, is that gun rights and gun control have always been part of American gun policy. The Second Amendment accommodates both of them.

To elaborate Adam’s insight, I’d say that the constitutionally legitimate gun control laws are the ones which actually improve public safety by keeping guns out of the wrong hands. The illegitimate gun control laws are the ones that infringe the rights of the law-abiding, especially the right of self-defense.

A good example of laws which successfully integrate gun rights and gun control are the “Shall Issue” laws for handgun carry licensing in most states. Those laws provide a fair and objective process for law-abiding citizens to be issued permits to carry concealed handguns for lawful protection. The laws have controls such as background checks (which are typically much more extensive than for simply purchasing a gun) and safety training. The laws also protect the right to bear arms, by ensuring that licensing officials do not deny applications simply because the issuing official does not like the idea of people carrying guns.

As to Adam’s question about background checks on private sales: if anybody actually proposed this, it would probably pass, with overwhelming political support. The reason it hasn’t been enacted in most places is that the bills which are actually introduced are bait-and-switch.

For example, the Schumer-Bloomberg “background check” bill in the current Congress would make it a federal felony to allow your spouse to borrow your gun for more than seven days. In the guise of “background checks,” Schumer-Bloomberg would felonize almost every American gun owner, for activities that have nothing to do with selling guns.

Likewise, the “background check” bills always include some sort of provision for gun registration. This makes them a non-starter. The experience of other countries, including Canada and the U.K., shows that gun registration lists often end up being used for gun confiscation. The same thing happened in New York City, so of course gun owners have no reason to trust that a gun registration bill pushed by Mayor Bloomberg could never be used for gun confiscation…(next page)

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Anderson K
2013-10-09 22:18:09
I wish the media talked about this more. All we ever hear is how the left wants gun control, the right doesn't. But this makes me think the left is as guilty as anyone for lack of progress
Chris Carpenter
2013-10-10 14:48:16
The radical progressive liberal democrats seek a ban on firearm ownership for citizens. They lie and say it is common sense reform. Just look at the agendas being pushed in NY and California. Mr. Kopel is correct. The language used is bait and switch. I believe it goes even deeper than that. The idea of self-protection lends itself to self-reliance which is exactly opposite of the liberal agenda. It truly is diametrically opposed positions. This is why the fight is so critical to maintain and strengthen our constitutional protections. Power and control over the citizens are the true goals in liberalism.
Christina Leah
2013-10-10 15:27:44
There is so much I want to say on the topic. I will limit it to the following. At what point in time are you safer after the passage and enactment of more gun laws? That day? A month? A year? 10 years? When does the efficacy begin? Limitation of capacity, firearm models, importation, types of ammunition have had what discrete measurable impact on crime?
2013-10-10 17:17:12
I'll just say I think it it a education issue. Everyone should receive basic gun safety in high school that would allow them to own a gun, and everyone should have to take a class to allow them to CCW. No real new laws required.
2013-10-10 20:35:42
Kopel's observations about background checks and registration are correct. I have followed federal and California gun policy for 20 years. I conclude that the prominent gun control advocates are in fact gun prohibition advocates who try to conceal their real motivation. They do not negotiate in good faith. Gun rights activists learned this long ago, and they act accordingly in the policy arena. Timothy Wheeler, MD Director, Doctors for Responsible Gun Ownership
Alison Smerillo
2013-10-15 17:27:18
It might be worth asking what their real motivation is? Is that they want to take your guns away just to be mean or do they want to take your guns away because they feel less guns will ultimately make America a safe place? I believe it is the latter and if gun right supporters stopped thinking people are out to get them instead of realizing that they just want there to be less gun deaths, then I think we could figure out a system to make everyone happy.
How can we fix the very broken American education system? Part II: Inequality | The Repartée
2014-02-02 06:14:55
[…] How can we enact meaningful gun control? Part I: Background Checks […]
How can we enact meaningful gun control? Part II: Reading the Constitution | The Repartée
2014-01-26 22:26:40
[…] How can we enact meaningful gun control? Part I: Background Checks […]
2014-02-09 18:16:39
If they were in fact above board and there was no "hidden" agenda, why would they need a guide on "messaging"? See link
Rob Sermon
2014-02-09 18:32:18

"do they want to take your guns away because they feel less guns will ultimately make America a safe place? I believe it is the latter..."

Alison, can you tell me how peaceful, law abiding people make America dangerous by owning legally obtained weapons? We do not cause any gun deaths, with the exception being a criminal element hell bent on doing our person, or property, harm.
Joe ThePimpernel
2014-02-09 18:51:54
"Sensible" means "if you disagree with me you are stupid."
Will Cahill
2014-02-10 21:28:52
Nope. It's code for "non-extremist."