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Guns vs. Teddy Bears
By Dave Kopel and Tim Wheeler March 18, 2004
(from National Review Online - January 14, 2004)
Should unelected officials be allowed to order the confiscation of some or all guns and ammunition in the United States? This is the question posed by Sen. Jon Corzine (D., N.J.) and Rep. Patrick Kennedy (D., R.I.), in their proposed Firearms Safety and Consumer Protection Act. As one might suspect, the bill is about neither firearm safety nor consumer protection, but is an especially clever stratagem by the gun-prohibition lobby. The Kennedy-Corzine bill would give the Treasury Department and the courts nearly unlimited powers to restrict firearms manufacture and sales, and to confiscate guns.
The bill is premised on the claim by the gun prohibition lobby in Colorado and other states that guns are an unregulated consumer product. Teddy bears, they preach, are more heavily regulated than guns; though anyone who has tried to buy a gun lately would probably disagree. For example, there is no federal agency like the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) that licenses teddy-bear manufacturers, wholesalers, and vendors. Teddy-bear stores do not have to keep permanent records on all their customers, and make those records available for government inspection.
You don't need permission from the FBI to buy a teddy bear, but you do if you want to buy a gun. No other consumer product requires federal-government approval for every single retail transaction.
The Supreme Court accurately characterizes the gun trade as a "pervasively regulated business" (United States v. Biswell, 1972). Thus gun stores, but not teddy-bear stores, are subject to warrant-less inspection by federal agents, notwithstanding the Fourth Amendment requirement that searches are only allowed with a warrant based upon probable cause.
It's not as though no one ever thought of setting safety standards for guns and ammunition. The original consumer safety regulations for American firearms were the standards set for the industry by the Sporting Arms and Ammunition Manufacturers Institute (SAAMI), an industry trade association.
Although SAAMI standards are not legally binding, manufacturers bidding for government contracts must meet the standards, since the FBI, the U.S. military, and many state or local government agencies often require that procured firearms meet SAAMI specifications.
SAAMI standards should satisfy true consumer advocates. Seeking additional legislation is the proper approach for people who want additional restrictions. But gun-prohibition activists have realized that most Americans believe they have a right to own guns, and a right not to have their property confiscated. Because legislators have to answer to their constituents, passing gun-prohibition laws is difficult even in states such as New York and California. Gun confiscation is even more difficult to enact. Hence the campaign to authorize unelected bureaucrats to confiscate guns -- under the guise of consumer safety.
The first effort to set up bureaucrat-based gun prohibition came shortly after the creation of the Consumer Product Safety Commission. In 1975, congressmen from Illinois and Michigan tried to push an amendment that would give the CPSC the power to control and ban guns and ammunition. Members of Congress lined up to excoriate the amendment's authors for their attempt at back-door gun prohibition.
The social problem with guns does not involve mislabeling or malfunctions: The problem involves people who deliberately misuse firearms. Robberies and gun crimes are serious problems, but they are criminal-justice problems, not product-regulation problems.
Putting aside the merits of gun policy, and ignoring the Second Amendment, we are still left a fundamental question: Since Article I of the U.S. Constitution gives "all legislative powers herein granted" to the Congress, why should unelected officials in the executive branch be given the power to ban guns which Congress has not voted to ban?
Under the Constitution, it is supposed to be hard to make new laws; the proposed law must be passed by the House of Representatives, by the Senate, and then signed by the president (or re-passed by two-thirds of each house of Congress over the President's veto).
By making it difficult to impose new laws, the Founders created a system in which liberty would be the norm, and restraint would be the exception. But law making by executive agencies inverts the whole process; a single bureaucrat, with the wave of his pen, creates new laws. Then, victims of the new restriction carry the difficult burden of trying to get Congress to pass a law to remove the infringement on liberty.
Several years ago, Sen. Sam Brownback (R., Kan.) and Rep. J. D. Hayworth (R., Ariz.) proposed legislation to specify that no new administrative regulation would go into effect unless Congress voted to implement it. Such legislation would be a gigantic step forward for strict and appropriate enforcement of the Constitution. Just as the mere risk of gun prohibition by the CPSC in 1975 spurred Congress to take protective measures, the new Kennedy-Corzine bill suggests that citizens who are serious about the Second Amendment should also get serious about enforcing Article I.
(c) 2004
The Independence Institute
14142 Denver West Parkway, Suite 185
Golden, CO 80401
303-279-6536
www.independenceinstitute.org
By Dave Kopel and Tim Wheeler March 18, 2004
(from National Review Online - January 14, 2004)
Should unelected officials be allowed to order the confiscation of some or all guns and ammunition in the United States? This is the question posed by Sen. Jon Corzine (D., N.J.) and Rep. Patrick Kennedy (D., R.I.), in their proposed Firearms Safety and Consumer Protection Act. As one might suspect, the bill is about neither firearm safety nor consumer protection, but is an especially clever stratagem by the gun-prohibition lobby. The Kennedy-Corzine bill would give the Treasury Department and the courts nearly unlimited powers to restrict firearms manufacture and sales, and to confiscate guns.
The bill is premised on the claim by the gun prohibition lobby in Colorado and other states that guns are an unregulated consumer product. Teddy bears, they preach, are more heavily regulated than guns; though anyone who has tried to buy a gun lately would probably disagree. For example, there is no federal agency like the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) that licenses teddy-bear manufacturers, wholesalers, and vendors. Teddy-bear stores do not have to keep permanent records on all their customers, and make those records available for government inspection.
You don't need permission from the FBI to buy a teddy bear, but you do if you want to buy a gun. No other consumer product requires federal-government approval for every single retail transaction.
The Supreme Court accurately characterizes the gun trade as a "pervasively regulated business" (United States v. Biswell, 1972). Thus gun stores, but not teddy-bear stores, are subject to warrant-less inspection by federal agents, notwithstanding the Fourth Amendment requirement that searches are only allowed with a warrant based upon probable cause.
It's not as though no one ever thought of setting safety standards for guns and ammunition. The original consumer safety regulations for American firearms were the standards set for the industry by the Sporting Arms and Ammunition Manufacturers Institute (SAAMI), an industry trade association.
Although SAAMI standards are not legally binding, manufacturers bidding for government contracts must meet the standards, since the FBI, the U.S. military, and many state or local government agencies often require that procured firearms meet SAAMI specifications.
SAAMI standards should satisfy true consumer advocates. Seeking additional legislation is the proper approach for people who want additional restrictions. But gun-prohibition activists have realized that most Americans believe they have a right to own guns, and a right not to have their property confiscated. Because legislators have to answer to their constituents, passing gun-prohibition laws is difficult even in states such as New York and California. Gun confiscation is even more difficult to enact. Hence the campaign to authorize unelected bureaucrats to confiscate guns -- under the guise of consumer safety.
The first effort to set up bureaucrat-based gun prohibition came shortly after the creation of the Consumer Product Safety Commission. In 1975, congressmen from Illinois and Michigan tried to push an amendment that would give the CPSC the power to control and ban guns and ammunition. Members of Congress lined up to excoriate the amendment's authors for their attempt at back-door gun prohibition.
The social problem with guns does not involve mislabeling or malfunctions: The problem involves people who deliberately misuse firearms. Robberies and gun crimes are serious problems, but they are criminal-justice problems, not product-regulation problems.
Putting aside the merits of gun policy, and ignoring the Second Amendment, we are still left a fundamental question: Since Article I of the U.S. Constitution gives "all legislative powers herein granted" to the Congress, why should unelected officials in the executive branch be given the power to ban guns which Congress has not voted to ban?
Under the Constitution, it is supposed to be hard to make new laws; the proposed law must be passed by the House of Representatives, by the Senate, and then signed by the president (or re-passed by two-thirds of each house of Congress over the President's veto).
By making it difficult to impose new laws, the Founders created a system in which liberty would be the norm, and restraint would be the exception. But law making by executive agencies inverts the whole process; a single bureaucrat, with the wave of his pen, creates new laws. Then, victims of the new restriction carry the difficult burden of trying to get Congress to pass a law to remove the infringement on liberty.
Several years ago, Sen. Sam Brownback (R., Kan.) and Rep. J. D. Hayworth (R., Ariz.) proposed legislation to specify that no new administrative regulation would go into effect unless Congress voted to implement it. Such legislation would be a gigantic step forward for strict and appropriate enforcement of the Constitution. Just as the mere risk of gun prohibition by the CPSC in 1975 spurred Congress to take protective measures, the new Kennedy-Corzine bill suggests that citizens who are serious about the Second Amendment should also get serious about enforcing Article I.
(c) 2004
The Independence Institute
14142 Denver West Parkway, Suite 185
Golden, CO 80401
303-279-6536
www.independenceinstitute.org
