Amendment 22 Revisited

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Amendment 22 Revisited

by Ari Armstrong, January 31, 2003

An obvious policy change would significantly reduce violent crime in America. But today's politicians don't want to discuss it, and the anti-gun lobby instead targets peaceable gun owners with inane and intrusive regulations.

One such law is Amendment 22, which requires peaceable Colorado citizens to register with the federal government before purchasing a gun from a private seller at a gun show. With bill 1119, Rep. Ray Rose wants to leave the statute intact but improve some of its more absurd language. I attended the January 30 hearing for the bill and intended to offer comments, but it ran late and I had to leave early.


Rep. Ray Rose explains his bill 1119 to the State, Veterans, and Military Affairs Committee January 30.

Following the hearing, I am told, Rep. Bill Sinclair, Chair of the State, Veterans, and Military Affairs Committee where the bill was heard, pulled the bill and asked Rose to work on it until both sides can accept it. Surprisingly, it may be possible to reach consensus on a few of the points.

As outlined in a previous article, Amendment 22 defines a gun show as a single person with 25 or more guns, or as three people who "exhibit, sell, offer for sale, transfer, or exchange" firearms. This definition defies common sense and includes a great many transactions that nobody really believes is a "gun show."

Originally, Rose simply wanted to replace this language with the text, "'Gun show' includes only the facility or portion of the facility in which the event or function is advertised as being held and is actually held and in which no fewer than three gun show vendors are present." An amendment to the bill, however, specified 50 guns plus three or more vendors -- something more in line with the common-sense understanding of a gun show.

This is the change I think might fly with both sides of the debate. Rose and others pointed out the existing language applies to all kinds of situations that aren't gun shows, such as three hunters sitting in a truck or a family sitting around the dinner table. Nobody who spoke against the bill (up until the point I left, anyway), offered any argument for keeping the existing definition. They said, basically, "That's not what we mean." If the anti-gun lobby wants to apply Brady gun-owner registration checks to all private transactions, that's what they should attempt. Amendment 22 is supposed to be about "gun shows," and that's what Rose's bill assures.

Arnie Grossman, Co-President of Sane Alternatives to the Firearms Epidemic, the name of which likens gun ownership to a disease, at one point argued for the existing language because it specifies a "gun show" must be publicly advertised. But Rose pointed out to Grossman he was quoting Rose' proposed changes, not the original language. So apparently even Grossman likes part of the bill. (However, the changes Rose proposes makes such language unnecessary.)

I don't see any possible compromise on the other main proposal, though Rep. Shawn Mitchell expressed hope one might be found. Existing language requires a registration check "[i]f any part of a firearm transaction takes place at a gun show." As Rose pointed out, if two friends meet at a gunshow, then months or even years later decide to transfer a gun, they are in violation of Amendment 22. Thus, honest people are bound to unwittingly violate the law.

District Attorney Dave Thomas referred to Rose' attempt to eliminate this language as the "winkie winkie section." The problem the supporters of Amendment 22 see is that, absent this language, two people could meet at a gunshow, then walk across the street to avoid the background check.

Thomas said the possibility of holding a peaceable citizen criminally liable for exchanging a gun a year after a gun show is "not a logical reading" of Amendment 22. It is, however, a precise reading. Thomas argues neither police nor prosecutors will abuse the law, and if they do the courts will remedy the overzealous enforcement. In short, Thomas' position is, "Trust us, we're from the government and we know what we're doing." I prefer the policy, trust but verify. Laws should have as little slack as possible. Even if overly broad laws are not fully enforced today, they may be in the future.

As a practical matter, there's no reason for the language to cover delayed transactions. If somebody started walking around a gunshow asking, "Hey, want to go across the street and sell me a gun?", he or she would be immediately reported to the authorities. (In all likelihood the person would be an undercover cop anyway.) It's ludicrous to think the delayed-transfer provision will actually stop criminal activity. The assumption seems plausible only to those who hold a paranoid and prejudiced opinion of the people who tend to shop at gunshows.

Rose originally wanted to repeal the language referring to the parking lot of a gun show, but he changed his mind. I don't think this matters. I also think Rep. David Schultheis is stretching the reading when he suggests Amendment 22 might mean everybody at a gun show should automatically go through a background check.

The Testimony

Dottie Lamm said the voters "spoke loud and clear" in favor of Amendment 22. She described the "passionate grassroots movement" behind it. She mentioned some of the counties that voted in support of it -- though she neglected to mention a third of Colorado's counties voted against it (so much for the "local control" argument the anti-gun lobby invokes in other contexts). Even Rose said he does not want to "supersede the wishes of the people."

Yet if we look back through history, we can find numerous examples of "passionate grassroots movements" that did horrible things. Something isn't right just because the majority supports it. The Founders distrusted democracy, which is why they established multi-layered representative government.

Amendment 22 violates the individual rights of the minority. Specifically, because most denials are wrongful ones based on the incomplete and sometimes-inaccurate CBI database, some Colorado citizens are denied their natural and Constitutional rights. Legislators have a moral responsibility to speak out against this injustice. It's a good thing that Rose is trying to improve a bad law. But the legislature should repeal the law altogether, then pass a resolution demanding the national government repeal the entire Brady registration framework.

Only the tiniest minority of voters understood the technical problems with Amendment 22 that Rose now seeks to address. Voters didn't understand that Amendment 22 registers gun owners with the federal government, that it relies on grossly flawed databases, or that background registration checks do not in fact deter crime and even leave some potential victims defenseless against crime. The proper standard by which to evaluate public policy is individual rights, not popular sentiments, though of course politicians will generally follow the masses, right or wrong.

Lamm sensibly observed that if the legislature undermines popularly passed statues it will only encourage more changes to the state Constitution, which the legislature cannot touch.

Mitchell replied simply that Rose' bill seeks only to tweak Amendment 22, not repeal it.

Even though Grossman claimed background registration checks have stopped some specific gun transfers, he failed to show background checks actually reduce crime. (Two studies of the national system concluded the Brady law does not lower crime, and Dave Kopel dispels the myth that gun shows are "bazaars" for criminals, as Grossman put it.) Grossman readily acknowledged criminals are able to circumvent Amendment 22 by buying guns on the black market or stealing them, though he thinks background registration checks have some impact.

Not everybody who supported Amendment 22 favors universal gun-owner registration. But the national anti-gun lobby which funded the Colorado initiative expressly wants to keep expanding the Brady registration system until every gun owner and every gun is registered with the national government.

Of course I take the opposite view -- that registering gun owners through background checks is unjust and counter-productive. It is possible to work out a coherent position that calls for background checks for all gun sales at public events but not between individuals, but it's a tricky and unstable position. For instance, the problem concerning delayed transfers strikes me as intractable. From my perspective, that problem stems from the fact that Amendment 22 seeks to criminalize inherently peaceable market transactions.

Schultheis pushed Grossman to say whether he thinks all private sales should be subjected to registration checks. Grossman said he'd prefer to leave that debate for another day. He said the slippery slope he fears is the one which leads to the "over-arming" of American citizens in which common disputes lead to shootings. Nevermind the fact that most states have liberalized concealed carry laws and no such mayhem has resulted.

Grossman takes a pretty dim view of humanity. He sees people as basically weak, fundamentally at the mercy of their passions. True, some people are that way. Most people are not. Most people are good, responsible, and peace-loving. But if we keep passing laws that pander to depravity and outlaw personal responsibility and peaceful exchange, more depravity is precisely what we'll get.

I've already noted Thomas' view that police and prosecutors will interpret laws "logically," so there's no need to worry about overly broad language. Along these lines, he also said "hypotheticals constitute a problem" because there are always counter arguments. For example, we need not concern ourselves with the hypothetical situation of three hunters sitting in a truck unknowingly conducting a "gun show."

I don't know why the legislature spends any time on criminal law, then. We might as well dump the entire criminal code and pass a single law that says, "Police may arrest anyone for whatever reason they choose, and prosecutors may charge anyone with any crime they desire." Oh, sure, somebody might come up with a "hypothetical" situation in which such a law might be abused, but any such hypothetical can be trumped by the simple assertion that police and prosecutors will interpret the law "logically." And the courts will always do the right thing in the end.

There is, of course, a grain of truth in Thomas' arguments, a point also brought up by Rep. Paul Weissmann: laws cannot always be defined perfectly such that they apply to every case in an unambiguous manner. Real life is messy. For instance, the word "attempt" is common in criminal law yet not always easy to pin down.

However, just because the law is sometimes ambiguous, doesn't mean we should intentionally add more ambiguity to the law when we can avoid doing so. A lot of the ambiguity surrounding Amendment 22 can be cleaned up, and accomplishing that is a worthy goal. But an unambiguously unjust law is not much of an improvement.

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