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Mark Osler Headshot

The Myth of the Law-Abiding Gun

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A bipartisan cadre in the Senate has now rejected a very reasonable expansion of background checks for gun purchases, largely in the name of "law abiding gun owners." Their mistake is identifying the person and the gun as a single unit. Unfortunately for public safety, they aren't.

What this argument skips over is the bare fact that tragedy too often flows from the separation of a gun from its original, legal buyer. While people can be law abiding by their nature, objects cannot. A gun is no more "law abiding" than any other highly portable and potentially dangerous object such as a car, a prescription drug, or a jet. Each of these is objects is benign, until it isn't because it is being driven by a drunk, abused by an addict, or flown into a building. Whether a gun is law-abiding or not depends on who is holding it, and our system of gun regulation does far too little to track or control them to make sure that they are in "law-abiding" hands.

The irony behind all this is that we do have comprehensive tracking of cars, prescription drugs, and jets -- in each case, government agencies maintain databases to properly regulate them, with one purpose being to keep them from passing into the wrong hands. Somehow, though, when it comes to the inherently more dangerous object that is a firearm, there is a tremendous political reluctance to impose similar regulations.

When a car is transferred from one owner to another, the state must be notified as title is exchanged. Prescription drugs cannot be legally transferred to another person once they are assigned to a registered user at a pharmacy. What is wrong with either of these models when it comes to guns?

Gun rights enthusiasts will (properly) point out one respect in which guns are different: Unlike cars, drugs, or jets, the right to possess a gun is constitutionally protected. The Supreme Court's 2008 decision in District of Columbia v. Heller, which found a personal right to bear arms under the Second Amendment, represented a remarkable change -- for the first time, the Court found that the Constitution expressly allows the possession of specific type of object. This does give firearms a special status. However, the bare fact that gun possession is a remarkably specific and personal right does not bar a program of registration (as with cars) or non-transferability (as with drugs) connected to all gun sales. The majority opinion in Heller itself established that nothing in that opinion "should be taken to cast doubt on... laws imposing conditions and qualifications on the commercial sale of guns." Requiring universal background checks or even establishing a registry of who has bought a gun is well within that limit.

It is constitutionally permissible for states to ban the sale and possession of marijuana, self-serve gas, cars that pollute, or radar detectors. Heller enshrined in law the anomaly that guns alone are immune from such treatment, but that does not absolve governments from the responsibility to protect citizens from gun violence. Registration and tracking of guns will further the cause of making sure that guns are sold to and stay with the "law-abiding" citizens gun proponents talk about.

When a young man in California kills himself with a gun, or a child in Chicago is shot, or a gang member in Miami grabs a pistol and sets out in search of revenge, the constitutional right to possess a gun for self-protection is subverted. The gun is now being used for destruction. Requiring background checks and empowering law enforcement to match up people with guns serves to protect the right to possess a gun for self-protection, not endanger it. In the end it is people, not guns, which are law-abiding, and reasonable regulation of guns imperils none of our rights as citizens.