Since passage of Prop. 63 the process seems irreversible.
Gun-rights activists often express the view that Americans will not easily give up their rights to gun ownership even if the laws eventually outlaw — or at least greatly restrict — the freedom of individuals to own firearms. The scenario they depict is bleak but simple: When armed agents come to their doors to confiscate people’s arsenals, some of those people can be expected to fight back.
Advocates further assume widespread public support for private gun ownership and expect prominent Second Amendment organizations and Republican legislators to raise hell whenever gun regulations start approximating confiscation.
The experience in California, in particular, suggests an entirely different scenario.
From what I’ve seen, the public often will support aggressive new restrictions. Gun owners will meekly hand over their weapons to agents. Gun-rights groups will quietly protest, but have little sway. Republican legislators will make things worse as they try to prove their commitment to taking guns out of the hands of “criminals.” The erosion of our fundamental gun rights will take place so slowly that few will protest too much.
The latest example involves Proposition 63, a statewide initiative that mandates background checks for ammunition purchases and prohibits the possession of large-capacity ammunition magazines. The state already banned the sale of magazines that hold more than ten ammo rounds in 2000. As a federal judge explained in a recent ruling, starting July 1, “any previously law-abiding person in California” who owns such a magazine “will begin their life of crime.”
In a victory for gun-rights supporters, Judge Roger Benitez granted a preliminary injunction keeping the draconian new rules from going into effect. “The court does not lightly enjoin a state statute, even on a preliminary basis,” the judge ruled. And while the court is “mindful that a majority of California voters approved Proposition 63 and that the government has a legitimate interest in protecting the public from gun violence, it is equally mindful that the Constitution is a shield from the tyranny of the majority.”
So, fortunately, the federal courts — for now, anyway — spared California from its latest effort to undermine the Second Amendment. But the future prognosis is not so good. Note that Californians approved Proposition 63 by an overwhelming 63 percent to 37 percent margin. It remains to be seen how this current case plays out.
As an Orange County Register editorial pointed out, one reason California gun owners increasingly must rely on the federal courts to uphold their constitutional gun-rights protections is that, unlike nearly all other states, California does not have its own version of the Second Amendment in the state Constitution. But our problems run much deeper than that.
There is no “comprehensive system of firearms registration in California,” one prominent gun-control group explains. But there is de facto registration, in that state officials have a variety of databases that make it easy for the state Department of Justice to track gun purchases. In 2011, Gov. Jerry Brown signed a law, which took effect in 2014, calling for the state to retain background-check information on Californians who bought long guns. It’s not registration of an owner to a particular gun, per se, but the difference is semantic. The department still gained access to a list of each buyer and the type of gun that was purchased. That list has long existed for Californians who purchase handguns or so-called “assault weapons.”
In 2007, state officials created what is known as the Armed Prohibited Persons System, a database that cross references a variety of lists of gun owners with lists of people convicted of crimes, involuntarily committed for mental health issues or otherwise deemed ineligible for firearms ownership. The Department of Justice then sends agents to a person’s house to confiscate weapons that were purchased legally, but which they no longer are legally allowed to own.
The state has a chart showing how gun dealers submit the Dealers Record of Sale form. That information is used not only to conduct background checks but is fed into myriad databases.
APPS actually was backed by Republicans, as a means to show their toughness on criminals. But as always, government databases are often used against generally law-abiding people who may have made a clerical error. And government databases are notoriously inaccurate, which leads to the wrongful confiscation of weapons.
The state auditor found that 37 percent of the names it checked on APPS shouldn’t be there. Gun-rights groups pin the percentage of mistaken names at anywhere from 40 percent to 60 percent. “These include people who legally can own firearms, but didn’t know they had to fill out forms or petition the court to restore those rights,” I reported in 2015 for the San Diego Union-Tribune.
These often involve people who have had a restraining order placed on them during, say, a divorce proceeding and typically “are people who aren’t dangerous or who are caught up in a bureaucratic snafu.” They can find themselves facing down SWAT teams who show up at their door. We know it’s usually easier for the government to go after someone who forgot to fill out the right form than a highly armed criminal enterprise.
After the Department of Justice released an audit of the system, in response to a law passed after the 2012 Sandy Hook murders in Connecticut, GOP legislators complained the state attorney general wasn’t aggressive enough in hiring more agents to confiscate more weapons. It was a good chance to ding a Democratic attorney general who was running for U.S. Senate, but their approach should remind gun owners that the GOP won’t necessarily be there to stick up for them.
Here’s where this ties into the latest gun-rights news: Little by little, legislators are forcing owners to register any firearms-related purchases with the state. The goal is to have all purchases of guns and ammo conveniently available in a state-accessible database. Then, when legislators or voters ban possession of new classes of guns or magazines retroactively, there will be an easy way to collect them from unsuspecting owners.
I’ve called this the “infrastructure of confiscation.” Law-enforcement officials are mostly for it, of course. They want to know who owns guns when they are called to a home for a disturbance. “The presence of a legally owned possessed firearm bought to protect the home may get totally innocent people killed by the police who casually use SWAT for drug search warrants especially if they register,” said the late Joe McNamara, the former San Jose police chief and fellow at the conservative Hoover Institution at Stanford University.
So, yes, as the government compiles bigger lists and becomes more aggressive in grabbing weaponry that becomes illegal, there’s likely to be more violence, but gun owners will be on the receiving end of it. We should at least be realistic about what will transpire.
After that tragic Connecticut shooting, the state passed a far-reaching firearms registration law. TV stations reported that gun owners lined up around the block to comply with the new requirements. Of course, that’s so. Most gun owners, myself included, are law-abiding folks, who almost certainly and properly would peacefully follow any new laws that were passed.
Fortunately, we’re not at that confiscation point yet. But the passage of Prop. 63 shows that California gun owners are much further down the road than any of us would like to admit.