The National Rifle Association and its allies in conservative media are attempting to downplay the significance of an “historic” victory for gun safety in Washington state, where voters overwhelmingly approved a ballot initiative to expand background checks on gun sales.
On November 4, Washington voters backed Initiative 594, a proposal to require a background check on nearly all gun sales, with some exceptions for temporary transfers and transfers between family members. In doing so, Washingtonians closed a loophole in federal law that allowed guns to be bought without a background check at gun shows, over the Internet, and through other venues from non-licensed sellers.
Voters also rejected I-591, a competing initiative that would have prohibited the enactment of any background check law that was stricter than the loophole-riddled federal law. The NRA stayed neutral on 591 and spent nearly $500,000 opposing 594.
Journalists labeled the successful ballot initiative approach to a background check law as “historic,” while the head of Everytown for Gun Safety, a prominent backer of I-594, said the outcome “proved the polls right -- when Americans vote on public safety measures to prevent gun violence, gun safety wins.”
Prior to Election Day, an NRA spokesperson expressed concern about the potential passage of I-594 stating, “If [gun safety advocate Michael Bloomberg] is successful in this ballot initiative in Washington, we are very concerned that he will replicated this across the country and we will have ballot initiative like this one across the country. That is why we are so concerned.”
In an attempt to spin the unfavorable outcome, conservative media and the NRA are offering weak arguments to downplay the significance of this major victory for gun safety advocates:
While results are still being tallied, I-594 currently enjoys a nearly 20-point margin of victory and the result has been called by all major election analysts.
On the November 5 edition of NRA News' Cam & Company, host Cam Edwards began his midterm election analysis by saying I-594 “looks like it's gonna pass, don't know what the final margin is going to be, it's going to be well short of the 90 percent that gun control advocates claim Americans support universal background checks by.”
Edwards was echoing a talking point that is being widely promoted by the NRA which comes from an article by discredited gun researcher John Lott. In his article, Lott argues that the I-594 outcome proves gun safety supporters -- by citing independent polling -- “greatly exaggerate” support for background checks on gun sales.
The difference between a polling question and a ballot initiative should be obvious, and if results hold, I-594 should pass by a proportion that is similar to pre-election polling.
Furthermore, because of the efforts by the NRA and other I-594 opponents, voters in Washington were inundated with claims that I-594 was not actually about background checks and that the measure would turn law-abiding gun owners into criminals.
I-594 opponents went to great lengths to obfuscate the purpose of the bill by suggesting language exempting temporary transfers involving hunting, the shooting sports, or situations involving imminent danger from the background check requirement did not go far enough. By using "semantics" arguments, I-594 opponents dreamed up wild scenarios under which common temporary gun transfers -- such as a firearms instructor handing a gun to a student -- would become crimes under I-594.
Mitch Barker, head of the I-594 neutral Washington Association of Sheriffs and Police Chiefs, told the Seattle Times that in his view the short term transfer scenarios hyped by I-594 opponents would not be subject to background checks. Furthermore, the NRA and other prominent I-594 opponents could not provide The Times with an example of a gun owner being “prosecuted on a technicality of gun-transfer laws.”
The NRA also ran advertisements suggesting that I-594 was not actually about background checks, but instead was a doomsday confiscation scenario for gun owners that could possibly require a confrontation between citizens and the government.
In an October 14 seven-minute-long NRA advertisement, opponents of I-594 tell the camera “background checks don't have anything to do with” the ballot initiative and instead it is about “universal gun registration,” “collecting a database of gun owners” and “confiscation of my guns.” A Washington sheriff ominously adds, “The American people will stand up because the day that you try to come and take those rights away from me is the day that I will fight you,” while another man falsely says I-594 would mean “you can't lend a gun to a friend to go hunting.”
Gun Advocate Spin: There Is An Equivalence Between I-594 And A Largely Uncontested Pro-Gun Alabama Ballot Measure
Fox News' Fox & Friends drew a false equivalence between I-594 and Alabama State Amendment 3 on November 5:
Acknowledging the passage of I-594, Fox News contributor Erick Erickson claimed state-level gun safety initiatives will have success in “more liberal” states like Washington, Oregon and California, but “fail miserably” in conservative states. He added, “Alabama put it in their constitution now that the right to bear arms is a fundamental right.”
But the difference in significance between I-594 and Amendment 3 is substantial. Amendment 3 “provide[s] that every citizen has a fundamental right to bear arms and that any restriction on this right would be subject to strict scrutiny.” Strict scrutiny is a heightened level of judicial review used by courts when deciding the validity of a law.
Alabama's Amendment 3 is similar to a 2012 measure that passed in Louisiana. The complete legal ramifications of these state constitution amendments have not been fully explored by the courts at this point. So far the biggest news to come out of Louisiana's amendment was its use by felons to challenge laws that prohibit their ownership of firearms under a “strict scrutiny” standard. That argument made it to Louisiana Supreme Court where it was rejected and the felon prohibition was upheld. So far no final court decisions have overturned gun laws challenged under Louisiana's strict scrutiny standard.
The second provision in Amendment 3 -- which “provide[s] that no international treaty or law shall prohibit, limit, [or] otherwise interfere with a citizen's fundamental right to bear arms” -- is redundant and conspiratorial.
The provision's genesis is the right-wing and NRA-backed conspiracy theory that the United Nations Arms Trade Treaty -- an effort to prevent the smuggling of weapons to human rights abusers -- could be used by the international community to leverage control over domestic gun laws in the United States.
Even if this baseless conspiracy were true, Alabamans are already protected from international treaty coercion by the U.S. Constitution. The Constitution, which is the supreme law of the land, supersedes all international treaties, according to longstanding Supreme Court precedent.
Moreover, while the Washington initiatives were the subject of a fierce and well-funded fight between the gun lobby and gun safety advocates in a state that has been a bellwether for gun laws, the Alabama initiatives were largely uncontested.
Doocy and Erickson also made no mention of the defeat of gun rights initiative I-591 in Washington.
NRA News host Cam Edwards also cast doubt on the legal validity of I-594, telling viewers, “it's going to be challenged in the courts I would imagine, we will see if it stands.”
The legal question surrounding I-594 -- and I-591 -- was largely answered on Election Day. Based on early polling, there was some concern that despite being contradictory, both ballot initiatives would pass and would have to be untangled by Washington's legislative or judicial system.
Whether expanded background checks are constitutional is settled law. Six states and Washington, D.C. already have laws requiring background checks for the transfer of all firearms, while eleven other states go beyond the federal law requirement for a background check but fall short of requiring a check on every sale.
According to Harvard law professor Laurence Tribe, a preeminent constitutional scholar, “There is no serious doubt that requiring ... a universal background check would comply with the Second Amendment.”