‘Everything We Don’t Like Is a Loophole’: Gun Controllers’ Mantra

By Cody J. Wisniewski

Wednesday, December 07, 2022

 

Progressives have been good at winning the language battle in recent years — particularly by manipulating language to evoke certain images and to lead to their desired conclusions. A prime example is their use of the word “loophole,” defined as “a means of escape, especially: an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” When someone accuses another of exploiting a loophole, he implies that the other is escaping some legal obligation, exploiting a technicality to violate the “spirit” of the law.

 

Leveled against firearms retailers and manufacturers, such accusations couldn’t be further from the truth.

 

Oregon’s Measure 114 has recently captured public attention as it claims to seek to “end a loophole in federal law.” This particular “loophole” refers to the federal law that allows a firearm retailer to transfer a firearm to a buyer if the federal government fails to expediently process the legally required federal background check.

 

When you buy a firearm from a licensed retailer in the United States, you are required to undergo a background check. That check is administered by the federal government through the National Instant Criminal Background Check System (NICS). The check, as the name implies, is supposed to be instant. And, under the same federal law that created the system, if that check languishes for more than three days, the purchase and transfer can go ahead. This isn’t a loophole that retailers or buyers are exploiting. It is an important check on the system that was intentionally included in the law to accomplish a legislative purpose.

 

The three-day limit does two things. First, it incentivizes the federal government to maintain an expedient system to ensure that peaceable people can purchase constitutionally protected firearms within what Congress determined to be a reasonable amount of time. Second, the time limit prevents the government from weaponizing the background-check system. Without the limit, the government could simply delay background checks indefinitely as a means of preventing firearm sales.

 

By labeling the three-day limit a “loophole,” gun-control advocates and politicians are hijacking the negative connotation that people naturally associate with that term. “Loophole” evokes a sense of unfairness and exploitation, when, in reality, this particular provision is a deliberate check on the system. It is not an omission by the law — it is a feature of it.

 

Similarly, last month, Bloomberg ran a lengthy piece accusing small-gun manufacturers of exploiting “loopholes” in federal and state law to make and sell firearms or accessories that some state governments “intended” to regulate. The piece paints these manufacturers, and their businesses, as profiteers circumventing the law and preventing lawmakers from achieving their alleged public-safety goals. In reality, these manufacturers operate in a highly regulated industry and spend countless hours and huge amounts of money keeping pace with ever-changing regulations that, if violated, could bear felony charges and prison time.

 

These manufacturers, just like the retailers in Oregon, are following the law as it was written and passed. In addition to mischaracterizing them as bad-faith actors, asserting that the gun industry is exploiting loopholes suggests that there’s such a thing as the spirit of the law — a seemingly universal consensus not expressed by the plain text, or letter, of the law — that just happens to align with gun controllers’ policy dreams.

 

Gun-control advocates’ response? Lobby for vaguer laws. “We need legislation that is broadly written so that it’s harder to circumvent. State legislators are scared to death to pass that type of bill, which is why we need Congress to pursue restrictions that can stick,” said Lindsay Nichols, federal-policy director for the Giffords Law Center to Prevent Gun Violence.

 

But this risks violating a basic tenet of our legal system. Law, at its base, must be knowable. It must be specific, definite, and establish clear limits. If governments are going to pass laws, they cannot also make them so broad that they can be applied based on the whims of bureaucrats.

 

The real problem is that gun-control advocates don’t like the law. Labeling everything the gun-control movement doesn’t like as a “loophole” is a tactic — a tactic to take advantage of people’s presuppositions and to advocate for broader and vaguer laws across the nation. People should be free to buy and own the tools that they see fit to defend their lives, loved ones, and communities. We shouldn’t fall victim to this ploy of bending language in pursuit of policy goals.