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Outside View: Loophole, shmoophole
By Gordon S. Jones
A UPI Outside Vew Commentary
From the Washington Politics & Policy Desk
Published 3/29/2003 8:08 AM
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DRAPER, Utah, March 29 (UPI) -- Loophole is a loaded word. It conjures up images of pettifogging lawyers and rapacious bankers looking through the fine print, sniffing out ways to defraud widows and orphans.
No wonder the advocates of greater government regulation are so enamored of the word. They certainly deploy it commonly enough in the struggle to delegitimize some of the most basic of America's freedoms.
Judging from some of the most recent writings on campaign fund-raising regulation and gun ownership, there hasn't been such a concerted search for "loopholes" since W.C. Fields thumbed through the Bible on his deathbed.
Barrels of ink were spilled last year during the fight over what its proponents dubbed "campaign finance reform" because of the loopholes in existing law that allowed free association between individuals for the purpose of raising issues through the use of political commercials.
These nefarious individuals were taking advantage of loopholes in campaign finance laws and had to be stopped, as Arizona Republican Sen. John McCain said so often. The way to stop them? Close the loopholes.
Other fastidious pundits weigh in regularly about the so-called gun show loophole.
To them, a gun show allows a gun dealer to avoid the need to do background checks on people buying firearms. Handgun Control Inc., one of the nation's leading advocates for the abolition of the private ownership of certain firearms, rarely misses an opportunity to opine on the need to end the sale of guns in these venues. The way to do it? Close the loophole.
There are, admittedly, loopholes involved in both questions but they are not the ones the advocates of closing them say they are. They are the ones everyone should be concerned about, the ones that are being manipulated to subvert basic constitutional rights.
The use of soft money is not, as proponents of ever greater limits on political spending say, a loophole in the campaign finance law. The campaign finance law is in fact a loophole in the First Amendment.
Its primary purpose is to guarantee freedom of speech and to permit and facilitate political speech, even that which the state found critical. Whether used by individuals or by groups of individuals, or even by corporate individuals, limitations on the free exercise of political speech, even when it is paid for, violate the First Amendment.
Aided by their allies in the federal courts, the regulators found a loophole in the First Amendment, ramming restrictions through the political system in 1974 and in 2002. The Supreme Court struck down some of those restrictions in the first case, and may do so again.
The odds are strong that many of them will remain. They will be loopholes in the First Amendment that restrict our right to communicate with each other about the qualifications of those vying for electoral office -- for the right to govern us.
The Second Amendment is quite specific that "the right of the people to keep and bear arms shall not be infringed." Yet somehow, the regulators have found a loophole in that simple statement, and have loaded one restriction on firearms ownership after another with few if any noticeable improvements in public safety and well-being.
This loophole allows Congress to require dealers -- at gun shows or anywhere else -- to check into the background of those who buy their guns, and to keep records about the sales. This requirement does not, as yet, extend to non-dealers.
If you, a private citizen, own a gun, and you want to sell it at your house, or at someone else's house, on the street, or at a gun show, you can do it, and you don't have to check to see if the purchaser is a mental patient or an escaped convict.
The regulators want to extend the gun control laws to cover sales of firearms by private citizens. Whatever else it may be it is most assuredly not a question of closing a loophole in the existing laws. It is, in fact, the expansion of a loophole in the Second Amendment to impose still more restrictions on gun ownership.
Friends of freedom should be clear about what is at stake: those who advocate the closing of these so-called loopholes are intent on ripping away more and more of the fabric of our constitutional liberties.
(Gordon S. Jones, who does not own a gun, lives in and observes life from Draper, Utah. He is a longtime congressional staff aide.)
("Outside View" commentaries are written for UPI by outside writers who specialize in a variety of global issues.)
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