AP Photo/Charles Krupa

Richard Feldman is a former NRA lobbyist who’s spent the last decade or so billing himself as the leader of a “Third Way” on gun issues; neither “NRA absolutism” nor “gun control extremism”. His latest attempt at trying to blaze a new path towards “gun reform”can be found at Politico, where he offers up several suggestions to Congress, starting with background checks.

Feldman correctly notes that the phrase “universal background checks” is a non-starter for many gun owners who fear becoming criminals for loaning a firearm to a buddy for a hunting trip, selling a gun to a cousin or a nephew at a family reunion, or any number of non-criminal transfers of a firearm. Feldman’s solution? Let’s kinda sorta have universal background checks but not really, only on commercial sales.

So why not extend the Brady background check to all commercial sales, including gun shows, internet sales and flea markets, while carefully and responsibly crafting exemptions for relatives, friends and co-workers whom the seller has personally known for more than a year? And in cases where there is some doubt about the relationship, let’s encourage people to get the checks by giving them the same liability protection when crimes are committed with those guns that retail dealers have now. Compromise, that dirty word, means we both get something in the transaction that’s useful to us.

There are two big issues for me with this proposal; accessibility and enforceability. Right now every federally licensed firearms dealer has to do a background check on every person buying one of their guns. In order to do those background checks the FFL’s have access to the National Instant Check System. If I as a private seller decided to sell one of my guns to my neighbor, I have no way of accessing the NICS system without going to an FFL, who may or may not choose to background checks on 3rd party sales, and who will most certainly charge me a fee if he does provide that service. If you’re going to require every private seller of a firearm conduct a background check, you need to give them the ability to do so, in my opinion.

Enforcing this law is going to be another issue entirely. How will the government know when a third party transfer or “commercial” sale is taking place between two individuals? And if somehow they government did find out about that private sale, are we really going to spend time and money to prosecute someone who sold a pistol to their friend who they’ve only known for 10 months? This isn’t compromise or common sense, it’s just another unworkable idea.

Feldman’s next idea has more merit. Noting that there are hundreds of thousands of firearm thefts each year, Feldman suggests allowing FFL’s access to a database called the National Crime Information Center to see if the gun that someone’s offering to sell to them has been reported stolen.

Home thieves sell their stolen guns (and jewelry and everything else) to fences. Fences take those stolen guns over state lines and sell them back to dealers who have no simple means of knowing that they are in fact purchasing stolen merchandise. When a retailer buys a firearm he must record it in an “A & D” (acquisition and disposition) book. Even if the gun was reported stolen by make and serial number, the dealer wouldn’t know it. But if every dealer purchase were automatically run through NCIC (the National Crime Information Center run by the FBI),then local police, informed about the pending purchase of stolen property, could question the seller, leading to immediate arrests. Why steal what you can’t sell? Would a program like this end the theft of firearms? No. Would it cut down dramatically on those thefts? You bet it would.

Feldman is right that this wouldn’t impact the illicit trade and sale of firearms at all, but it might cut down on the fencing of stolen firearms. It also wouldn’t have an impact on the rights of gun owners, and may in fact allow them to get their property back in some circumstances. Feldman notes that policy proposals like this don’t get much attention, which he blames on a lack of “moderation” in the country.

Why have you never heard anyone talking about this before? It’s simple; there is no political advantage to solving this (or any) gun related problem if we can’t make political hay from the controversy. Issues are only useful when they are “us or them,” “black or white” with little to no nuanced middle ground. Isn’t that a large part of our problem in this country? We really are a rather centrist nation, but the enthusiasm of purists seems to dominate the debate. Perhaps we need enthusiastic moderates now and again to represent those of us who aren’t purists.

Even when I like the proposal, I have to say I can’t stand the presentation. Stop with the sanctimony and the attempts to gain some sort of moral high ground over the “purists” on either side. It distracts from the actual proposal when Feldman tries to tie it in to his “moderate” brand. It’s a pragmatic proposal, not moderate. It doesn’t claim to “end gun violence”, but it’s a practical step that could disrupt at least part of the illicit market of firearms. It can just be a good idea. It doesn’t have to be symbolic of some Great Moderation Crusade.

Next, Feldman turns his attention to “red flag laws” and again tries really had to find some sort of middle ground between wholehearted embrace and wholehearted rejection.

The theory behind this initiative is that people sometimes give us useful signals that they intend to commit violence—whether it’s against themselves or others—and if we act upon those signals by removing their guns we might sometimes prevent tragedies. But gun owners have legitimate fears that the system can be abused to their detriment. In order to amplify the good and minimize the bad, we need to build safeguards against a surveillance state that, in the wake of 9/11, has proved susceptible to overreach.If the process becomes punitive, not salutary, faith in the stated objective is defeated and people loss more respect for the laws and any changes are seen as new retributions to be opposed from the get go.A detailed description of a workable and fair policy can be found in David French’s article “A Gun-Policy Measure Conservatives Should Consider” from National Review of February of last year.

French’s version of a “red flag”, or Gun Violence Restraining Order comes with five caveats meant to ensure due process.

  • It should limit those who have standing to seek the order to a narrowly defined class of people (close relatives, those living with the respondent);
  • It should require petitioners to come forward with clear, convincing, admissible evidence that the respondent is a significant danger to himself or others;
  • It should grant the respondent an opportunity to contest the claims against him;
  • In the event of an emergency, ex parte order (an order granted before the respondent can contest the claims), a full hearing should be scheduled quickly — preferably within 72 hours; and
  • The order should lapse after a defined period of time unless petitioners can come forward with clear and convincing evidence that it should remain in place.

I think French’s proposal goes a long way towards addressing due process concerns, but it still doesn’t contain enough protections for me. A “clear and convincing” standard is good, but the lack of any sanction for filing a false report is a red flag of its own. The lack of any mental health evaluation is a non-starter. In fact, an emerging issue for me is something that my colleague Tom Knighton recently noted; law enforcement seems to be able to make arrests in a lot of these cases using existing laws on the books. Every state in the union has a civil commitment law already in place. I’ve yet to hear a supporter of “red flag” laws provide an example of when a gun violence restraining order would be a more appropriate tool than either the existing criminal justice system or civil commitment statutes.

Finally, Feldman turns his attention to bans on semi-automatic firearms. Thankfully, there’s no “moderate” position offered here, just a reminder that the most commonly sold rifle in America today isn’t a machine gun or a battlefield weapon of war.

The AR-15 rifle, the semi-automatic version of the military M-16—with their black polymer frames, and folding stock—may look scary to uninformed or misinformed pundits, but they function identically to grandpa’s old hunting rifle. Outlawing the sale of AR-15-type rifles might (over time) lower the number of incidents involving AR-15 rifles. But what would be the value if criminals and crazies alike merely substitute a far more powerful hunting rifle in a .308 or .30-06 caliber for the relatively underpowered .223 caliber common to the AR-15?

The professional gun control advocates already know this. They don’t care. They want to ban as many guns as they can, and they think a ban on anything declared an “assault weapon” is popular enough that they can do it once Democrats are in power.

Feldman’s most interesting (and workable) idea is to allow gun dealers access to the NCIC system, but both his background check and red flag proposals are non-starters. If Feldman really wants to chart a new course, it won’t be through watered-down gun control ideas. Strike out in new directions like FFL’s and NCIC access, or targeting a community’s most violent offenders through things like Project Ceasefire. If you want the support of gun owners, you can’t have proposals that treat them as if they’re criminals, or require them to navigate a maze of red tape before exercising their rights. That’s not a road map to gun reform, it’s just a road map to gun control with a slight detour involved.