Following Boomershoot, I moved house, and with one thing or another, I was quite delayed in getting my Boomershoot videos edited. Well, that issue has been rectified.
10 October 2015
10 March 2015
In which a NRA Patron-level member proposes a Universal Background Check System
Well, that subject sounds pretty odd. Those two things do not seem to go together from the point of view of either side of the debate.
The stalwart NRA members knows all the deep, deep flaws in the gun control advocates proposition, and cannot abide what sounds good in theory, but in practice is a mechanism toward all the previous disasters, such as a repeat of what the Nationalsozialistische Deutsche Arbeiterpartei did when it got ahold of the Weimarer Republik's gun registration records. (Hint: mass graves. See also Joe Huffman's Jews In The Attic test)
The gun control advocates publically state that they want gun violence to reduce, criminals to not get guns, et ceteras, and as far as that goes, the NRA, membership and leadership, is on the same page with them. Because the NRA opposes them on the policy prescriptions, there is a tendency to think that the NRA wants more gun crime, wants criminals to get guns, doesn't care about dead kids, ad nauseum, and therefore, the five million members of the NRA are the most evil people since the Nazis. (The fact that the Nazis really loved their gun control is lost upon them. So did Stalin and Pol Pot and Mao. It's a theme amongst totalitarians of all stripes.) There is simply an inability to understand that someone would see how the desired result is completely uncoupled from the laws proposed, and thereby oppose the policy while agreeing with the desired result. At least, there is for most of the gun control movement. A communication guide for gun control advocates was uncovered a few years ago, and among the snippets of advice were "don't wait for the facts, declare the need for gun control" and "don't be specific when you call for gun control, because later facts might undermine the argument". This is not just a mechanism for deceiving the public, but also a psychological mechanism to armor the gun control advocate from having to re-evaluate their position. Someone on their end understands what's going on, and the weakness of their arguments... but they really need true believer foot soldiers to parrot their lines in front of the credulous media.
So, how did I, a Patron-level NRA member, come to devise a Universal Background Check system? Well, I was pretty tired of hearing about this half-baked "we need universal background checks" thing and decided, OK, you want universal background checks? I'll give you a system that does that, and it will not be half-baked. Oh, no, we're riding this train to the end of the line, and I think the end result will work out pretty well with regards to the effects on crime, simplification of the federal legal code with regard to guns, advance the legal theories behind recent Supreme Court decisions, and get rid of a lot of legal cruft that has accumulated over the years.
Also, I've been swinging this bat at away games a lot, and I decided I might as well bring it home for a bit. So, despite steering clear of politics on this blog so far, here goes the wall of text. If TL;DR is an issue for you, stay out of the gun debate, because everything goes down to the details.
Let's get to the meat of the proposal and the argument.
Currently, the background check system can only be used by Federal Firearm Licensees. Individuals can't use it, cops can't use it, the states can't use it. It was designed with all the intelligence late 1980s politicians could come up with. Basically, their idea of the state of the art in government was the DMV.
I propose to replace this system with technology and security from the early 2000s, and make the system completely universally accessible.
The basis of the entire system will be the same kind of certificate signing and verification that underpins the security of the world wide web.
Here's how it would work: At some point, a prospective gun owner would go to an FFL, fill out the same kind of information that would go on a Form 4473, and provide the kinds of IDs necessary to buy a firearm. (They may not be buying a firearm at that time, or they could be. Doesn't matter in this system.) The FFL sends this information to the FBI, who does the same background check look-up that they do today. If the individual passes, we now know that this individual does not have any legal impediments to purchasing a firearm.
Here's where things change: The FBI maintains a digital certificate signing authority (CA). Every FFL also has a digital certificate, which is signed by the FBI's CA. Every employee of the FFL also has a digital certificate, signed by the FFL's cert. Finally, everyone that goes through the background check and presents their credentials to the FFL's counter clerk has a final certificate generated, signed by the clerk's cert, that indicates that the individual has been through the background check.
About three days after this process has been completed, the individual receives in the mail a credit card-sized card from the FBI. On the front, it has the words "National Instant Check System", the name and address of the individual, a serial number, the serial number of the FFL clerk that checked their ID and some text describing what form of picture ID must be presented with this card for it to be valid. On the back is a QR code that encodes all this information along with a digital signature. The digital signature on the card ensures that the information on it is valid and can't be forged without having access to the FFL clerk's private digital key for this system... which even he doesn't have, because the FBI retains it.
Using a smartphone app and the phone camera, or a PC and a webcam, ANYONE (this is where the universal part of this system comes in) can scan the back of this card, and the app will go to the FBI and get the applicable Certificate Revocation Lists (CRLs). If the serial number of this card is on the list, the app tells you not to accept it. If the FFL clerk's certificate serial number is on the list (if he was dirty, got caught and his cert revoked) the app tells you not to accept the card. If the FFL's cert serial number is on the revocation list, the app says not to accept the card. Anyone, anywhere with wireless internet access, can do this check at any time.
If for some reason you don't have access to the internet, but you have access to a regular phone, you can call a service, punch in the serial number of the FFL clerk's certificate on the phone keypad and the service will request the CRLs for you, then prompt you to enter the last four digits of that card's serial number. If those last four are anywhere in the list, it'll ask you for the second-to-last four digits to narrow the field. If at any point as you enter series of digits, you match one record on the CRL, it'll let you know not to accept the card. For added assurance to the use, this system could be a proxy operated by the NRA or ACLU, which would request the CRLs from the FBI without revealing who the user was or how he was making the request.
All of this is being done with tried and true technology that has been built into everyone's web browser since the early 2000s, with the exception of the smartphone camera app, which is 6 year old technology. You're using this system today to protect your online banking. The only complicated part is to get the justice system in this country to report any disqualifying crimes to the FBI so they can look up the criminal and revoke his certificates and block the criminal from getting issued a new one.
Rather than making everyone have to tromp into the FFL to run the check (which incentivizes people to work around the clunky system, resenting the fact that the criminals never will comply) everyone can do the check wherever they are, fully confident that the encryption used to protect the digital signatures means that every step in the chain of trust is mathematically correct, all the way back to the root certificate at the FBI. One single digit off, and the math doesn't work out.
A side benefit of this system is that it is relatively cheap for the government to operate. The FBI has to do the background check in depth only the first time. After that, they just need to do daily updates to their database with those individuals that have been convicted in a court of law of disqualifying crimes. The database once per day updates all the CRLs on a static content web server. After that, every NICS check after the first one is nearly free. This would actually decrease the cost of the NICS system. They could get rid of most of their call center people that are taking calls from FFLs all day as they sell guns. They'd just need enough staff to handle brand new gun purchasers, or people who lost their cards, or their old picture ID expired. There would also be no more outages, as the static content could be mirrored easily and simply at non-government CDNs.
Now I hear the cries from my fellow NRA members, asking why I'm helping set up a system that no criminal will abide by and creates a stealth gun and/or owner registration system. Fear not, NRA members, here's the payoff: The serial number of the prospective buyer is not transmitted to the FBI. The list of revoked serial numbers is requested, and then the app checks the serial number against the list. All the FBI knows is that three sets of CRLs have been requested: one for the clerk, one for the FFL, and one for the FBI. It doesn't know who you're looking for on that list. As a matter of fact, for security purposes, the system can't work any other way. Any kind of system that could receive data from the end user could be hacked. The only safe way to serve out the CRLs to the public is to have them served as strictly static content with any other inbound data completely ignored.
So, with this proposal, I address the major stated concern of both the NRA and the gun control advocates: that legitimate sales of firearms only go to people that can legally receive them, and we have a reliable means to determine whether someone is a legitimate receiver. I address the NRA's concern of not facilitating any kind of government registry of gun owners. I also address the publicly stated concern of the gun control advocates in that the system is universally available to everyone, everywhere, at all times, with minimum effort on the part of the prospective seller of a firearm, and therefore legitimate sellers have no reason not to use it. For extra credit, because the system is UNIVERSALLY available, cops can now do a check, right there on the street, in seconds, and find out if someone they encounter with a gun is a prohibited person. It might take a bit longer if that person doesn't have a NICS card on them, but it is no worse than their current circumstances.
At this point, I might be thanked by an intellectually honest gun control advocate, possibly using these exact words:
Well, there is another very good argument against legally mandatory background checks: the reasoning from Haynes vs US (1968).
The basic reasoning from the 7-1 majority decision is that it is unconstitutional to prosecute a criminal for not registering a firearm, because to do so would be compelling that criminal to announce to the state his illegal act, which is a violation of the Fifth amendment protections against self-incrimination.
Following that reasoning, if a universal background check system is legally mandatory, criminals could not be prosecuted for failing to use it. You could get them for illegal possession, sure, but you have to catch them first... like you have to do today.
Meanwhile, all those non-criminals (that could pass the background check) could be prosecuted if they don't use it. The US Supreme Court precedent doesn't protect them.
In effect, mandatory background check laws are a hazard only to the people who aren't the problem. That legal precedent is as solid as Roe vs Wade.
(What about today's mandatory background checks for FFLs? That's within the power of Congress to compel dealers to do as a condition of their licensure, under the Commerce Clause. It's a requirement on the dealer, not the receiver.)
So, there are two essential features of my proposed background check system: 1) So easy to use that anybody could do it, anywhere, any-when and 2) there's no penalty for not using it and no way to tell if you use it or not.
However, I would tighten up on the federal law against providing a firearm to a prohibited person. Right now, it's really difficult to prosecute an individual for breaking that law because it is impossible to prove whether the seller knows the buyer is prohibited at the time of the sale. Individuals can't access NICS, and forcing people to go to the gun store (at the expense of their time, their gas, and the fee the FFL will charge them) just makes them resentful, especially when they know criminals don't make that effort. If we make it so easy to check, with no tracking worries, and then we find out later that the seller provided to a prohibited person... I'd say ignorance, willful or not, is no excuse. But we can only do that if we've made the system trivially easy for the seller to use. At that point, the seller would be able to establish innocence if he can identify the day of the sale, and the previously qualified recipient with a good NICS card had become disqualified after that date. The FBI would have the change records for all of the CRLs.
Then, the use of the system becomes a simple matter of marketing: "It's simple! It's easy! It's absolutely reliable! There's no tracking, and if you don't believe us, use the NRA or ACLU's proxy service! Do it anywhere or anywhen! You don't have to use it... but if you provide a firearm to a felon, accidentally or on purpose, you're going to be his cell-mate. Make sure before you sell, give or loan."
As a bonus, here are some gun laws that would go away under strict or intermediate scrutiny because they are excessively onerous when a less onerous system is available:
The stalwart NRA members knows all the deep, deep flaws in the gun control advocates proposition, and cannot abide what sounds good in theory, but in practice is a mechanism toward all the previous disasters, such as a repeat of what the Nationalsozialistische Deutsche Arbeiterpartei did when it got ahold of the Weimarer Republik's gun registration records. (Hint: mass graves. See also Joe Huffman's Jews In The Attic test)
The gun control advocates publically state that they want gun violence to reduce, criminals to not get guns, et ceteras, and as far as that goes, the NRA, membership and leadership, is on the same page with them. Because the NRA opposes them on the policy prescriptions, there is a tendency to think that the NRA wants more gun crime, wants criminals to get guns, doesn't care about dead kids, ad nauseum, and therefore, the five million members of the NRA are the most evil people since the Nazis. (The fact that the Nazis really loved their gun control is lost upon them. So did Stalin and Pol Pot and Mao. It's a theme amongst totalitarians of all stripes.) There is simply an inability to understand that someone would see how the desired result is completely uncoupled from the laws proposed, and thereby oppose the policy while agreeing with the desired result. At least, there is for most of the gun control movement. A communication guide for gun control advocates was uncovered a few years ago, and among the snippets of advice were "don't wait for the facts, declare the need for gun control" and "don't be specific when you call for gun control, because later facts might undermine the argument". This is not just a mechanism for deceiving the public, but also a psychological mechanism to armor the gun control advocate from having to re-evaluate their position. Someone on their end understands what's going on, and the weakness of their arguments... but they really need true believer foot soldiers to parrot their lines in front of the credulous media.
So, how did I, a Patron-level NRA member, come to devise a Universal Background Check system? Well, I was pretty tired of hearing about this half-baked "we need universal background checks" thing and decided, OK, you want universal background checks? I'll give you a system that does that, and it will not be half-baked. Oh, no, we're riding this train to the end of the line, and I think the end result will work out pretty well with regards to the effects on crime, simplification of the federal legal code with regard to guns, advance the legal theories behind recent Supreme Court decisions, and get rid of a lot of legal cruft that has accumulated over the years.
Also, I've been swinging this bat at away games a lot, and I decided I might as well bring it home for a bit. So, despite steering clear of politics on this blog so far, here goes the wall of text. If TL;DR is an issue for you, stay out of the gun debate, because everything goes down to the details.
Let's get to the meat of the proposal and the argument.
Currently, the background check system can only be used by Federal Firearm Licensees. Individuals can't use it, cops can't use it, the states can't use it. It was designed with all the intelligence late 1980s politicians could come up with. Basically, their idea of the state of the art in government was the DMV.
I propose to replace this system with technology and security from the early 2000s, and make the system completely universally accessible.
The basis of the entire system will be the same kind of certificate signing and verification that underpins the security of the world wide web.
Here's how it would work: At some point, a prospective gun owner would go to an FFL, fill out the same kind of information that would go on a Form 4473, and provide the kinds of IDs necessary to buy a firearm. (They may not be buying a firearm at that time, or they could be. Doesn't matter in this system.) The FFL sends this information to the FBI, who does the same background check look-up that they do today. If the individual passes, we now know that this individual does not have any legal impediments to purchasing a firearm.
Here's where things change: The FBI maintains a digital certificate signing authority (CA). Every FFL also has a digital certificate, which is signed by the FBI's CA. Every employee of the FFL also has a digital certificate, signed by the FFL's cert. Finally, everyone that goes through the background check and presents their credentials to the FFL's counter clerk has a final certificate generated, signed by the clerk's cert, that indicates that the individual has been through the background check.
About three days after this process has been completed, the individual receives in the mail a credit card-sized card from the FBI. On the front, it has the words "National Instant Check System", the name and address of the individual, a serial number, the serial number of the FFL clerk that checked their ID and some text describing what form of picture ID must be presented with this card for it to be valid. On the back is a QR code that encodes all this information along with a digital signature. The digital signature on the card ensures that the information on it is valid and can't be forged without having access to the FFL clerk's private digital key for this system... which even he doesn't have, because the FBI retains it.
Using a smartphone app and the phone camera, or a PC and a webcam, ANYONE (this is where the universal part of this system comes in) can scan the back of this card, and the app will go to the FBI and get the applicable Certificate Revocation Lists (CRLs). If the serial number of this card is on the list, the app tells you not to accept it. If the FFL clerk's certificate serial number is on the list (if he was dirty, got caught and his cert revoked) the app tells you not to accept the card. If the FFL's cert serial number is on the revocation list, the app says not to accept the card. Anyone, anywhere with wireless internet access, can do this check at any time.
If for some reason you don't have access to the internet, but you have access to a regular phone, you can call a service, punch in the serial number of the FFL clerk's certificate on the phone keypad and the service will request the CRLs for you, then prompt you to enter the last four digits of that card's serial number. If those last four are anywhere in the list, it'll ask you for the second-to-last four digits to narrow the field. If at any point as you enter series of digits, you match one record on the CRL, it'll let you know not to accept the card. For added assurance to the use, this system could be a proxy operated by the NRA or ACLU, which would request the CRLs from the FBI without revealing who the user was or how he was making the request.
All of this is being done with tried and true technology that has been built into everyone's web browser since the early 2000s, with the exception of the smartphone camera app, which is 6 year old technology. You're using this system today to protect your online banking. The only complicated part is to get the justice system in this country to report any disqualifying crimes to the FBI so they can look up the criminal and revoke his certificates and block the criminal from getting issued a new one.
Rather than making everyone have to tromp into the FFL to run the check (which incentivizes people to work around the clunky system, resenting the fact that the criminals never will comply) everyone can do the check wherever they are, fully confident that the encryption used to protect the digital signatures means that every step in the chain of trust is mathematically correct, all the way back to the root certificate at the FBI. One single digit off, and the math doesn't work out.
A side benefit of this system is that it is relatively cheap for the government to operate. The FBI has to do the background check in depth only the first time. After that, they just need to do daily updates to their database with those individuals that have been convicted in a court of law of disqualifying crimes. The database once per day updates all the CRLs on a static content web server. After that, every NICS check after the first one is nearly free. This would actually decrease the cost of the NICS system. They could get rid of most of their call center people that are taking calls from FFLs all day as they sell guns. They'd just need enough staff to handle brand new gun purchasers, or people who lost their cards, or their old picture ID expired. There would also be no more outages, as the static content could be mirrored easily and simply at non-government CDNs.
Now I hear the cries from my fellow NRA members, asking why I'm helping set up a system that no criminal will abide by and creates a stealth gun and/or owner registration system. Fear not, NRA members, here's the payoff: The serial number of the prospective buyer is not transmitted to the FBI. The list of revoked serial numbers is requested, and then the app checks the serial number against the list. All the FBI knows is that three sets of CRLs have been requested: one for the clerk, one for the FFL, and one for the FBI. It doesn't know who you're looking for on that list. As a matter of fact, for security purposes, the system can't work any other way. Any kind of system that could receive data from the end user could be hacked. The only safe way to serve out the CRLs to the public is to have them served as strictly static content with any other inbound data completely ignored.
So, with this proposal, I address the major stated concern of both the NRA and the gun control advocates: that legitimate sales of firearms only go to people that can legally receive them, and we have a reliable means to determine whether someone is a legitimate receiver. I address the NRA's concern of not facilitating any kind of government registry of gun owners. I also address the publicly stated concern of the gun control advocates in that the system is universally available to everyone, everywhere, at all times, with minimum effort on the part of the prospective seller of a firearm, and therefore legitimate sellers have no reason not to use it. For extra credit, because the system is UNIVERSALLY available, cops can now do a check, right there on the street, in seconds, and find out if someone they encounter with a gun is a prohibited person. It might take a bit longer if that person doesn't have a NICS card on them, but it is no worse than their current circumstances.
At this point, I might be thanked by an intellectually honest gun control advocate, possibly using these exact words:
Thanks.
Yours is a thoughtful and specific proposal to address what I see as one of the few reasonable arguments against universal background checks: the potential for the system to become a gun owner database.
Well, there is another very good argument against legally mandatory background checks: the reasoning from Haynes vs US (1968).
The basic reasoning from the 7-1 majority decision is that it is unconstitutional to prosecute a criminal for not registering a firearm, because to do so would be compelling that criminal to announce to the state his illegal act, which is a violation of the Fifth amendment protections against self-incrimination.
Following that reasoning, if a universal background check system is legally mandatory, criminals could not be prosecuted for failing to use it. You could get them for illegal possession, sure, but you have to catch them first... like you have to do today.
Meanwhile, all those non-criminals (that could pass the background check) could be prosecuted if they don't use it. The US Supreme Court precedent doesn't protect them.
In effect, mandatory background check laws are a hazard only to the people who aren't the problem. That legal precedent is as solid as Roe vs Wade.
(What about today's mandatory background checks for FFLs? That's within the power of Congress to compel dealers to do as a condition of their licensure, under the Commerce Clause. It's a requirement on the dealer, not the receiver.)
So, there are two essential features of my proposed background check system: 1) So easy to use that anybody could do it, anywhere, any-when and 2) there's no penalty for not using it and no way to tell if you use it or not.
However, I would tighten up on the federal law against providing a firearm to a prohibited person. Right now, it's really difficult to prosecute an individual for breaking that law because it is impossible to prove whether the seller knows the buyer is prohibited at the time of the sale. Individuals can't access NICS, and forcing people to go to the gun store (at the expense of their time, their gas, and the fee the FFL will charge them) just makes them resentful, especially when they know criminals don't make that effort. If we make it so easy to check, with no tracking worries, and then we find out later that the seller provided to a prohibited person... I'd say ignorance, willful or not, is no excuse. But we can only do that if we've made the system trivially easy for the seller to use. At that point, the seller would be able to establish innocence if he can identify the day of the sale, and the previously qualified recipient with a good NICS card had become disqualified after that date. The FBI would have the change records for all of the CRLs.
Then, the use of the system becomes a simple matter of marketing: "It's simple! It's easy! It's absolutely reliable! There's no tracking, and if you don't believe us, use the NRA or ACLU's proxy service! Do it anywhere or anywhen! You don't have to use it... but if you provide a firearm to a felon, accidentally or on purpose, you're going to be his cell-mate. Make sure before you sell, give or loan."
As a bonus, here are some gun laws that would go away under strict or intermediate scrutiny because they are excessively onerous when a less onerous system is available:
- Any gun registration system (DC, NYC, etc)
- Any permit to purchase system (DC, NJ, CA, NYC)
- Any license to own system (MA, NJ)
- The long processing time for NFA tax stamps
- Any waiting period after the first one
- Prohibition on interstate sales without transfer between FFLs
- Most state concealed carry licenses could be repealed and replaced with a requirement to carry a NICS card and its accompanying picture ID
01 February 2015
In good time...
Last Monday, The Boy® had a day off from school. Forecast called for fog, eventually burning off and becoming an unseasonably warm day. This meant that wind speeds would be in the 1-2 knot range, and with the tree cover around my range, that would be pretty negligible. So it seemed like a good time to take The Boy® to the range for the first time.
Now, The Boy® is about 6 months behind his sister in this regard. She went to the range for the first time right after she graduated from kindergarten. But every child is different, and you have to make the call on whether they can focus, control themselves, take direction and show respect for rules that they might not entirely understand at this time.
Miss Tacticute was ready to follow her daddy's direction right after kindergarten. The Boy® has been admonished on a regular basis to show some self control, and I didn't think he was ready back then.
After a little more time, and with an opportunity at hand, we went for it. First part of preparation was to take all that pink off the .22. Simple enough, swap out the pink-laden AR-15 lower with an all-black one, and that's all set. Then I just had the swap out the pink barrel carbine length handguard on the upper receiver, move the bipod onto the black equivalents, and it's fashionably black again.
25 yards, bipod on bench, but he's shooting from a standing position because there are no stools tall enough to get him up to the bench height. The four holes immediately below the bullseye are mine, checking the rifle, and the rest are his. I'd say that's not bad for the first time on the trigger.
Now, The Boy® is about 6 months behind his sister in this regard. She went to the range for the first time right after she graduated from kindergarten. But every child is different, and you have to make the call on whether they can focus, control themselves, take direction and show respect for rules that they might not entirely understand at this time.
Miss Tacticute was ready to follow her daddy's direction right after kindergarten. The Boy® has been admonished on a regular basis to show some self control, and I didn't think he was ready back then.
After a little more time, and with an opportunity at hand, we went for it. First part of preparation was to take all that pink off the .22. Simple enough, swap out the pink-laden AR-15 lower with an all-black one, and that's all set. Then I just had the swap out the pink barrel carbine length handguard on the upper receiver, move the bipod onto the black equivalents, and it's fashionably black again.
25 yards, bipod on bench, but he's shooting from a standing position because there are no stools tall enough to get him up to the bench height. The four holes immediately below the bullseye are mine, checking the rifle, and the rest are his. I'd say that's not bad for the first time on the trigger.
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