The Bipartisan Senate Gun Control Bill Would Unjustly Deprive Americans of Their Second Amendment Rights

Senate negotiators unveiled a bipartisan gun control bill yesterday, hours before it survived a preliminary vote with enough support to overcome a filibuster. Sixty-four senators voted to advance the Bipartisan Safer Communities Act, which expands background-check requirements for gun buyers younger than 21, widens the categories of people who are not allowed to buy firearms, and provides federal funding for states with “red flag” laws.

The bill, which is the product of negotiations between Democrats and Republicans who want to be seen as doing something to prevent mass shootings and other kinds of gun violence, purports to achieve that goal without sacrificing Second Amendment rights. But the bill’s details raise serious questions about its effectiveness and fairness. It pays lip service to civil liberties while canceling the gun rights of adults based on juvenile records, and it subsidizes state laws that suspend those rights without due process.

The bill requires that background checks for 18-to-20-year-olds who buy guns from federally licensed dealers include juvenile criminal and psychiatric records. If the National Instant Criminal Background Check System notifies a dealer within three business days that “cause exists to further investigate a possibly disqualifying juvenile record,” the dealer is required to delay the sale up to 10 business days after the initial query. At that point, the sale can be completed unless a disqualifying record has been identified.

The main rationale for this new requirement is that it could be an obstacle for young mass murderers with disqualifying juvenile records. The perpetrators of the May 14 massacre in Buffalo, New York, and the May 24 attack in Uvalde, Texas, were both 18-year-olds who legally bought firearms from licensed dealers after passing background checks. But it does not look like those sales would have been blocked even if the background checks had included juvenile records.

Erie County District Attorney John Flynn said the 18-year-old charged with murdering 10 people at a Buffalo supermarket had no prior criminal record. Last year, when state police investigated him because of a comment about murder that he passed off as a joke, a psychiatric evaluation concluded that he did not meet the criteria for involuntary treatment. The Associated Press reports that the Uvalde shooter, who was killed by police after he murdered 19 elementary-school students and two teachers, “had no criminal record” and “no history of mental illness treatment.”

Nor would the new requirement have made a difference in other notorious mass shootings where the perpetrator was younger than 21. The 17-year-old charged with murdering 10 people at a Santa Fe, Texas, high school in 2018 used his father’s guns, so there was no background check for him to fail. The 20-year-old who killed 20 children and six adults at a Newtown, Connecticut, elementary school in 2012 obtained the rifle he used from his mother. The perpetrators of the 1999 massacre at Columbine High School in Colorado obtained firearms through older intermediaries.

The 19-year-old who killed 17 people at a Parkland, Florida, high school in 2018 had a history of disturbing behavior, and he had received mental health treatment. But a 2013 psychiatric evaluation under Florida’s Baker Act concluded that he did not meet the criteria for commitment. The Associated Press reported that he “did not have a criminal record before the shooting.”

Notwithstanding these examples, there may be cases where checking juvenile records would block gun sales to would-be mass murderers younger than 21. But that policy is inconsistent with the general principle that people who commit crimes as minors should not be followed by that record as adults. Rep. Alexandria Ocasio-Cortez (D–N.Y.), hardly a Second Amendment enthusiast, raised that point earlier this month, saying she was concerned about “the expansion of background checks into juvenile records.”

The Bipartisan Safer Communities Act not only blocks gun sales to young adults with disqualifying juvenile records. It permanently st