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Background Checks Are Unconstitutional, Not ‘Common Sense’

By: José Niño

The Second Amendment, compared to other rights “guaranteed” under the U.S. Constitution, has stood relatively strong. But now it seems a misguided segment of the gun rights movement is willing to yield ground to gun controllers.

Mass shootings always prompt discussions about the need for tighter background checks. We are led to believe more stringent regulations will keep criminals from committing gun crimes.

In the War on Guns, however, John Lott explains how universal background checks do not reduce crime rates, proving yet again that gun control is not a viable means of fighting crime.

But we have to ask ourselves one crucial question:

Why should law-abiding Americans be forced to go through background checks in the first place?

The establishment gun lobby and gun control groups alike reassure us that a federal background check system is necessary to keep guns out of criminals’ hands and is an essential factor in curtailing crime. But is the conventional wisdom the establishment gun lobby feeding us legitimate?

The assertion that the Brady Registration System (NICS) is an effective crime-fighting mechanism is wishful thinking. Former Democrat president Bill Clinton has credited the Brady Law of 1994 for lowering crime rates during the 1990s, arguing that it took “guns out of the hands of criminals.” But in More Guns Less Crime, Lott noted these decreasing crime rates started in 1991, well before the Brady System was implemented.

What’s more, for the vast majority of its history, the United States did not have national background checks. Contrary to what gun controllers would have you believe, the sky wasn’t falling during the years leading up to NICS, so it’s safe to say that the doing away with the Brady System would not be a social disaster of catastrophic proportions.

But there’s a much more fundamental matter at stake when discussing background checks—the integrity of the Second Amendment itself. Any kind of regulation the government passes on gun rights is an infringement on the Second Amendment.

The current background check system violates numerous parts of the Bill of Rights. The Ron Paul Institute is correct in its assessment that background checks violate the First and Fifth Amendments because they “compel people to speak [and] provide information about themselves,” and “because you have to provide evidence against yourself in order to [acquire] a gun.”

The Brady System is also unconstitutional on Tenth Amendment grounds because the mandate to provide this information is not one of the federal government’s constitutional functions.

Last but certainly not least, background checks turn the presumption of innocence on its head. Instead of being free to acquire a firearm without government duress, law-abiding citizens are forced to submit records proving their innocence to a faceless bureaucracy. On what planet is this requirement not a violation of the very civil liberties enshrined in our legal tradition?

Criminals are not concerned about following gun laws; what makes us think they’re going to go out of their way to adhere to even more onerous rules background checks instill?

The Brady bill effectively established a gun registry containing records of every American who purchases a gun from a dealership, available to the government on demand. Gun owners should not be defending background checks; they’re another form of unconstitutional gun control. Plain and simple.

Compromising for the sake of appearing reasonable or “common sense” will not score brownie points with the political establishment. For the liberal elite, the Brady System is just one piece of their puzzle that, once complete, will strip us of our gun rights completely.

Virtue-signaling will not keep power-hungry gun controllers at bay.

To win this fight, pro-gun activists must take a firm, principled stance on the Second Amendment. Nothing meaningful is ever won in the comfort zone of compromise politics.

To fully restore the Second Amendment in America, we must target egregious violations such as the Brady System and work tirelessly to repeal them.

A citizenry is not free until all infringements on their right to self-defense are abolished.

José Niño is a Venezuelan-American political activist based in Fort Collins, Colorado.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect those of Gunpowder Magazine.