Unarmed for the Election

Arnold Schwarzenegger doesn't know the basics of California gun laws
By Dave Kopel

National Review Online, September 30, 2003, 9:10 a.m.

Arnold Schwarzenegger's recent appearance on the Sean Hannity Show regarding gun control suggests that he is amazingly ignorant of current gun laws in California.

Hannity asked Schwarzenegger what he thought of the "assault-weapon" ban and the Brady Bill. Schwarzenegger replied, "Yes I do support that. And also I would like to close the loophole on the gun shows." 

While the federal ban on so-called "assault weapons" is scheduled to sunset in September 2004, the much more severe California prohibition has no sunset date. The federal and the state law are both based on cosmetics — on the idea that a gun is bad if it has a bayonet lug, or other small features that have nothing to do with the gun's firepower.

Schwarznegger also endorsed the Brady Bill — which never affected California gun sales, because the state's gun laws were more restrictive than the requirements of the 1993 Brady Bill. And these California restrictions are why Schwarzenegger's comment about gun shows was so appallingly uninformed.

In 1989, the California legislature passed, and Governor George Deukmejian signed, a bill that abolished gun-owner privacy and eliminated private gun sales. As a result, every gun transfer must be routed through a licensed firearms dealer, and must receive prior approval from the government. This even applies if a man wants to buy a Christmas present for a friend, or if two members of a target-shooting club want to trade guns, of if a retired hunter wants to give his old gun to a young friend as a college graduation present.

There are a few small exceptions to the California law against private transfers; gifts among close relatives are still allowed. However, the law contains no exception for gun shows.

So, for example, if a hunter owns five shotguns, and decides to sell three of them to help pay for his family's summer vacation, he might rent a table at a gun show one weekend. Under federal law, the man is not in the business of selling firearms, so the laws about firearms dealers do not apply to him: He does not have to fill out federal paperwork, nor is he required to call the FBI for permission to sell a gun to a particular buyer.

The laws of most states, like federal law, distinguish firearms dealers (who are engaged in the business) from occasional, casual sellers (who are not in the business). These federal and state laws apply equally no matter where a gun sale takes place. If you are engaged in the firearms business, then the federal and state requirements apply to you regardless of whether you sell a gun from a storefront, from a home business, or at a gun show. Conversely, if you are not in the firearms business, the laws applying to you are the same whether you are at a gun show, a gun club, a home, or anywhere else.

Thus, the "gun-show loophole," is a fiction invented by the gun-prohibition lobbies. Gun shows are not some kind of armed Brigadoon, where gun laws magically vanish for the weekend. The laws about selling guns at gun shows are exactly the same as the laws for selling guns anywhere else.

In California, where privacy for gun sales was abolished 14 years ago, there is certainly no "gun-show loophole." If a Californian who owns one gun wants to sell it at a gun show, he will have to pay a fee to a licensed firearms dealer at the gun show; the dealer will contact the California Department of Justice, and if the DOJ approves, the sale may be consummated a few weeks later. The same procedure would apply to any other firearms transfer by a California citizen.

So in other words, the "loophole" that Schwarzenegger "would like to close" was actually closed 14 years ago. How much more contemptuously ignorant can a candidate get? Surrounded by high-priced advisers and consultants, Schwarzenegger apparently cannot hire anyone who will explain to him the elementary facts of California gun law.

On The Larry Elder Show, Schwarzenegger said that he thinks there should be a law for mandatory gunlocks. Apparently Schwarzenegger has no idea that California enacted such a law several years ago. It was this law which led directly to the death of two children in Merced, California, in August 2000. When an insane killer with a pitchfork attacked their home, their older sister — who was a trained shooter — was unable to protect them because the family guns were locked in a safe.

If during the campaign Schwarzenegger will not bother to learn simple facts about gun law, what is the likelihood that he would pay any more attention after being elected governor?

California's gun laws are over 158,000-words long (about twice the size of all the federal gun laws, combined). When the California legislature passes a gun bill, the bill often involves technical changes to an already hyper-complex law. A governor making a decision to sign or veto the bill must be able to understand the legal analysis of the bill, and to make his own evaluation of his staff's recommendation. Given Schwarzenegger's willful obliviousness to the easy part of the California gun laws, it is unlikely he could ever make a well-informed decision about the law's many complexities. It seems more likely that he would just go along with his vehemently antigun wife, and sign any antigun bill the legislature passed.

Schwarzenegger does claim to support the Second Amendment, but do Charles Schumer and Rudolph Giuliani, both of whom find their support of the Second Amendment compatible with their support of every antigun law which has any political viability.

Of course most of Schwarzenegger's competitors (past and present) in this recall race haven't been very impressive on the gun issue either. According to veteran firearms lobbyist and activist Neal Knox, Peter Ueberroth "did his best to torpedo all Olympic shooting when he headed the 1984 Los Angeles Olympics."

Governor Gray Davis has signed a string of very repressive laws restricting gun-owner rights. Neal Knox reports that if Davis survives the recall, California Democrats will make a push for handgun prohibition, and may succeed.

The only serious candidate in the California governor's race who supports Second Amendment rights is State Senator Tom McClintock. As demonstrated by McClintock's June 2001 speech on freedom and firearms, McClintock analyzes the gun issue in a very profound way.

He accurately connects the gun-control movement to the "despotic principle" popularized by the 19th-century German philosophers Marx, Hegel, and Nietzsche: "rights come not from God, but from the state. What rights you have are there because government has given them to you."

McClintock rejects this philosophy, and he recognizes the right to arms to be one of those inalienable rights "endowed equally to every human being by the 'laws of nature and of nature's God.'" If a man has "no right to self-defense," then he is a slave, for his "rights are at the sufferance of his master — whether that master is a state or an owner."

Could you imagine Schwarzenegger talking like that? Of him speaking from his heart about freedom, without having to check his remarks with his political handlers?

Arnold Schwarzenegger knows how to pretend to use guns in childish action movies which glamorize gun violence. Tom McClintock understand that responsible gun ownership is one of the pillars of a free society.

Dave Kopel is coauthor of the new book Supreme Court Gun Cases.

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