Author’s note: This is the first of a series of posts covering the two Washington State gun initiatives to be decided by voters this fall. Here I consider I-591, the “Protect Our Gun Rights Act”. Future posts will address I-594, an opposing bill to I-591.
On November 4th, Washington will be the only state in the country to address gun issues at the ballot box. The first of which, Initiative 591, is a simple, one page bill that in two operative sections places restrictions on state agencies pertaining to due process and potential background checks on the recipient of a firearm:
Section 1: It is unlawful for any government agency to confiscate guns or other firearms from citizens without due process.
Section 2: It is unlawful for any government agency to require background checks on the recipient of a firearm unless a uniform national standard is required.
At first glance, I find myself mildly irritated by the opening section of this measure. Not in that it isn’t a worthy endeavor, but by the fact it shouldn’t be necessary. It is a lamentable feature of our current political climate that we should find ourselves having to repeatedly remind our various governing bodies of their constitutional limitations by proposing ever more bills asserting long-standing, foundational civil rights. I-591 is no different.
There simply exists no constitutional justification for the State to confiscate property without due process of the law, be that a firearm or not. This centuries-old protection is codified, appropriately enough, by Due Process Clauses of both the 5th and 14th Amendments to the U.S. Constitution (the former having been incorporated as enforceable to the states and localities since it’s ratification), but also by Article I, Section 3 of the Washington State Constitution:
SECTION 3 (PERSONAL RIGHTS): No person shall be deprived of life, liberty, or property, without due process of law.
While such deprivation applies to any putative seizure of one’s property, it becomes more acute pertaining to firearms in light of the fact that gun ownership is itself a constitutionally protected activity, provided for not only by the federal (2nd Amendment) and state (Article I, Section 24) constitutions, but also by force of a litany of federal court decisions in recent years, including Heller and McDonald.
I-591 or no, the fact is plain: the State may not seize private property without due process. While I-591’s provision stating as much beyond current law is welcome, and hardly detracts its overall worthiness, that such an obvious feature of American civic law bears repeating is unfortunate.
The inclusion of such a provision is largely a preemptive measure in response to recent state legislation addressing the ability of individuals with no-contact, protective, or restraining orders against them to possess or obtain firearms. Such legislation would have required such individuals to surrender their weapons before any due diligence was performed to ascertain the validity of the order against them. As a consequence of I-591, the applicable authority issuing such orders would be required to satisfy various procedural guidelines–established in part by Goldberg v Kelly (1970)–including notification of charges and the right to a hearing and legal representation, before any such restraining order and subsequent firearm surrender could be enforced. Consideration of the aggrieved party notwithstanding, this is a reasonable measure to insure that individual gun rights are not by infringed upon unjustly.
Section 2 is equally straightforward. It prohibits any government agency from conducting a background check on the recipient of a firearm unless a “uniform national standard” is required. It has been suggested that the insertion of such “national standard” language is a subtle forfeiture of rights at the state level to the whims of federal lawmakers–who have recently been eager to adopt “universal background checks”–but this argument breaks down by virtue of the fact that a national standard of sorts already exists.
The Brady Act of 1993 requires a federal background check to be performed on the purchase of any firearm at a federally licensed dealer. While the 1997 Supreme Court Printz decision provided that state or local jurisdictions could not be required to perform the checks if they chose not to, the fact remains that every current purchase of a gun from a licensed dealer already accompanies a federal background check through the National Instant Criminal Background Check System (NICS) maintained by the FBI. Individual states are free to institute additional requirements at their discretion.
What I-591 requires is that Washington State residents be treated no differently than a resident in any of the other 49. Should I-591 pass, any future legislator seeking to adopt additional state background checks would be unable to do so unless such a provision aligned with requirements that apply uniformly across the country. A Washingtonian must be treated as an Idahoan who’s treated as a Floridian. On a practical level, the increased liberalization–in the classical sense–of gun laws over the last six or seven years, coupled with a shifting cultural attitude towards reaffirming individual gun rights, make it unlikely that such a uniform national standard could ever be agreed upon. If it’s onerous background checks that concern a Washingtonian, it would behoove them to focus on defeating I-594 right now than be concerned about hypothetical checks down the road. Don’t miss the forest for the trees, as it were. For the time being, gun control on the national stage can be considered ipso facto dead on arrival.
I-591 serves one final purpose. Given that its second section directly conflicts with the entirety of I-594 as written, it functions as a final bulwark against that initiative should it pass as well. State law doesn’t currently provide for an immediate remedy should two ballot measures cancel the other out upon passage, meaning that the issue would head to the State Supreme Court for adjudication. Submitting such a sweeping expansion of government for judicial review is clearly not a circumstance one appreciates entertaining, but given the real possibly of I-594 passing in an increasingly Democrat state (background checks still poll quite well), better to have I-591 than not.
Future posts will examine the not-inconsiderable subtleties of I-594’s background checks.
Taken at face value, I-591 is a largely unnecessary initiative that reaffirms a well established civil right, and on one level, distracts attention from the regulatory colossus found in its companion ballot initiative. However, political reality, as tedious and confused as it is, seemingly requires the citizenry to provide periodic reminders to a capricious government about limits to its power, and rights long since enjoyed by the people. C‘est la vie.
I-591 accomplishes this unhappy burden, and enjoys support from important state law enforcement groups who have increasingly been significant players at the local level in pushing back against attempts to weaken gun rights. It is a simple provision that ought to be a no-brainer.
Vote “yes” on I-591.