The Compromise with Governor McAuliffe Poses Real Dangers in Virginia

Last December, Virginia Attorney General Mark Herring announced his intention to unilaterally revoke Virginia’s concealed carry reciprocity agreements with most other states, on the grounds that the other states did not have sufficiently stringent controls on who could obtain a permit.

In response, there was significant uproar among Virginian gun owners, and many Republicans in the General Assembly, who vowed to undo the damage that Herring had caused — possibly through the budget process which is moving forward this month.

Recently, it was reported that Virginia Republican legislators have reached a “deal” with Democrat Governor Terry McAuliffe to suspend Herring’s unlawful revocation of concealed carry reciprocity with 25 states. 

The “deal” would supposedly reinstate reciprocity — and even extend it to more states — but establish “voluntary” gun show private background checks and impose additional restrictions on persons with restraining orders.

The Bloomberg anti-gun crowd is supposedly livid about the deal, and many of our Second Amendment friends are declaring victory.  But as Gun Owners of America has looked at this deal, we conclude that there are several things that should concern Virginia gun owners, as well.

So let us first say this:  There are disagreements in any family.  And, within our “Second Amendment family,” it’s possible to disagree, without impugning either the judgment or the motives of our friends and allies.  

Having said that, we would like to respectfully raise some concerns.  Because even if this deal goes forward to fruition, Virginia’s gun owners — and the legislators who represent them — should have their eyes open and know exactly what they are really getting:  the Good … the Bad … and the Ugly.

1. WHAT WE GET:  Expanded Reciprocity

The biggest argument that gun owners would benefit from this deal concerns the revoking of Mark Herring’s attack on concealed carry.  According to the Virginia Citizens Defense League, the Old Dominion would recognize every state’s carry permits — which would mean that Virginia carry holders would be recognized by all the states where we had lost reciprocity (resulting from Herring’s action in December).  Three new states would now recognize Virginia carry permits (Colorado, Georgia and New Hampshire).

On the one hand, this would be great news for gun owners if this accurately reflects the final compromise.  Every gun owner knows that concealed carry is a big deal.  It’s the “bear” part of the Second Amendment protection.  Preserving the right to carry is extremely important.

On the other hand, one wonders what kind of precedent this compromise will set — where anti-gunners illegally infringe on the rights of gun owners, and then demand concessions in order to “graciously” restore those rights.  

This would be like the person who gets burglarized and is ecstatic with the burglar when he gets most (or maybe all) of his property back, because he didn’t have to pay the burglar as much as he thought he would. 

Or to put it yet another way, if you pay ransom for hostages, even if you think you cut a pretty good bargain, you’re going to guarantee that you get more hostage-taking.

Rather than pursuing a “compromise,” the Republicans who control the legislature in Richmond could use the appropriations process to defund Herring’s action.  And that could be done without giving away any ground to the anti-gun left in Richmond.

Unfortunately, there will be a cost for gun owners that results from any compromise made with Governor McAuliffe.  We must remember that gun grabbers are really good at holding out a carrot and then playing with the details.  Even now, we already know what some of those negative details are.


“McAuliffe’s camp says that the gun-safety crowd got a good deal, and that the progress on background checks and domestic abusers is more critical than concessions on reciprocity.” — The Washington Post, February 1, 2016

The most significant concession in this deal is creating a system of “optional” background checks for private sales at gun shows (HB 1386 and SB 715).  The idea is that the Virginia State Police would be required to attend every Virginia gun show, where they would set up a table.  Any persons participating in “private sales” (which do not require a background check under federal law) would be able to go to the VSP table and have a background check conducted.  This check would ostensibly be “voluntary.”  

But as we will explain below, it’s not that difficult to move from “voluntary” to “mandatory.”  Consider the progression of gun control over the past two decades.  Who would have ever thought in 1993 — when the NRA was pushing the Instant Check legislation (as a compromise to the Brady waiting period) — that almost 25 years later, some Republicans would now be agreeing to a “compromise” which extends those background checks to private sales?

We must realize, of course, that this push toward Universal Background Checks has ONLY BEEN MADE POSSIBLE because the NICS infrastructure already exists.  The lesson?  Today’s compromises will become the starting point for tomorrow’s negotiations by gun-grabbers.  

So with this as a backdrop, there are some serious problems with establishing “voluntary” background checks at gun shows.

A. “Voluntary” Background Checks are a Stepping Stone to Mandatory Ones.

Proponents of “voluntary” background checks keep arguing that they are entirely voluntary.  That may be so, but creating the infrastructure for mandatory checks would certainly create the momentum for mandatory checks in the future since.  After all, proponents will argue, they have been working so well already, and we already have a system in place to conduct them!

The compromise deal would reportedly compel gun shows, under penalty of imprisonment, to give an institutionalized presence to the police.  On its face, the law won’t require you to validate your private sale at their table.  But we have seen, with Project Exile, how the ATF and their law enforcement allies sought to shut down the gun show guarantees from the Firearms Protection Act of 1986.  Remember how law enforcement swarmed into Richmond gun shows — scanning gun owners’ license plates and showing up at their homes — in order to intimidate attendees?

So what if the ATF or the state police install “checks” at the exits?  And what if these checks begin harassing persons who have privately purchased guns without the “voluntary” background check — looking, for example, into whether the seller and purchaser are de facto “dealers” under Obama’s “guidance” for gun collectors?  

We know that Obama is trying to outlaw private sales at gun shows.  And the establishment of “voluntary” checks makes it really easy to do so.

B. The Federal Background Check System is Broken.

Since President Obama took office, there has been a concerted effort to disarm as many Americans as possible through whatever means necessary.  

The NICS background check system has been corrupted to the point where the public would be shocked to know the kinds of people who are frequently being disarmed:

* More than 175,000 military veterans who are suffering from maladies such as PTSD and who were deemed as “mental defectives” when they had a fiduciary appointed to handle their financial affairs.

* As many as 4.2 million senior citizens who will soon be treated by the Obama administration as prohibited persons — not for crimes committed, but because relatives have been appointed to balance the checkbooks of these Social Security recipients.

* Persons with nothing more than unpaid traffic tickets can be slapped with bench warrants — and this can result in NICS denials.  In many cases, the offender has no idea that he or she even had an outstanding warrant.  

* Then there are the people who, decades ago, pled guilty to minor assault misdemeanors (sometimes to just get it over with).  The feds can now claim these are “misdemeanor crimes of domestic violence.”  We have seen cases where the incident did not even involve a person in a “domestic” relationship — but could include a daughter throwing a set of keys at a mother or brothers engaging in a drunken fight that was broken up by the police.

* Often, there are mistaken records in the NICS system — persons with a similar name, etc. — that can result in a wrongful disqualification.  The FBI has an appeal process to correct these mistakes.  But that appeals process has now been totally suspended by the Obama administration, which has illegally transferred all 70 appeals examiners at the FBI to other duties.

What happens when these people show up at the VSP table and the background check comes back denied?  Ordinarily, the FFL would simply state that he cannot sell them the firearm, and ask them to leave.  

But when it’s the police themselves doing the check, will the gun purchaser be placed under arrest?  It is a federal crime to make a “false statement or representation” when purchasing a firearm [according to 18 USC 924(a)(1)(A)].  Will we have law-abiding Virginians being carted out of gun shows in handcuffs based on erroneous results from a NICS system that is broken?

C. The Beginning Phase of Universal Gun Registration.

Federal law expressly prohibits the creation of a national gun registry.  The FBI is required to destroy records associated with background checks after they have successfully been completed, and FFL’s maintain 4473 records — not the ATF.  

But despite this legal requirement to destroy records, many people are concerned that the names and Social Security numbers of gun owners are still being retained in NICS because of an expansive backup system at the FBI.

You may not have to fill out a 4473 form under the compromise deal, but you can bet your bottom dollar that you will need to swear that your purchase is not in violation of federal or state law. 

At all costs, Gun Owners of America has remained vigilant against any and all types of gun owner registration — regardless of the promises that government officials make that they will “never abuse” such information.

One must remember that in countries where guns were confiscated, the ones seizing the firearms were not always the ones who had implemented gun registration.  For example, in Germany it was the “well-meaning” Weimar Republic that imposed the registration policy.  The Nazi’s just took advantage of the system that was already in place when they confiscated privately owned firearms.  

The lesson here is to always look not only at what is being done by a current law, but what how could be used in the future.  Mark our words: if “voluntary” background checks become law today, tomorrow they will be made mandatory.  And along with this expansion will come universal gun owner registration.

3. Domestic Violence Restraining Order Firearms Prohibition

Of all of the law-abiding people who contact Gun Owners of America — complaining that they have just lost their guns — most of them write because they have had a restraining order slapped on them in connection with a messy divorce.

But we have seen, increasingly, how tumultuous personal relationships are resulting in “he-said she-said” reciprocal restraining orders.  

Not only that, we are increasingly seeing how courts are almost summarily issuing these restraining orders and how the only impact of this “restraining order gun ban” is to leave abused women defenseless against their abusive partners.  

And, we are seeing how these dangerous gun bans are only encouraging the Bloomberg people to extend them (unconstitutionally) to ex parte orders where the person who ends up disarmed was not notified of the hearing and was not present in the courtroom when the judge orders his guns to be taken away.

Just because we have ineffectual, counterproductive, unconstitutional provisions on “restraining orders” at the federal level doesn’t mean Virginia has to do the same.

One more thing:  There are representations stating that the Virginia bills involving Domestic Violence Restraining Orders (HB 1391 and SB 49) are just repetitive of federal law.  That is not true.

Under federal law, a person subject to a restraining order must act KNOWINGLY before they can go to prison. [18 U.S.C. 924(a)(2) and 18 U.S.C. 922(d) and (g).]  This standard comes from the Firearm Owners Protection Act of 1986 and was negotiated by our legislative counsel.

The bills implementing the “McAuliffe compromise” have no mens rea or “knowing” standard, leaving open the real possibility that a person who acts reasonably and non-negligently could nevertheless be guilty of a FELONY.  [See subsection B of section 18.10-308.1:4 of HB 1391 and SB 49.]

What does this mean?

Let’s say you’re summoned to a hearing to determine whether to impose a restraining order.  In many states, if the process server can’t locate you, he can post a notice on the door of your last known residence, and this constitutes “notice.”  

There are a couple of reasons why you can’t be prosecuted at federal law.  But, without a mens rea requirement, it is not clear at all that you can’t go to prison under the McAuliffe compromise — even though you had no knowledge of the restraining order.

Furthermore, because of the concept of “constructive possession,” this could apply to anyone in the same household as a person subject to a protective order.

Bottom Line:  It’s a Mistake to Negotiate over Lawless Actions

Increasingly, the modus operandi of lawless presidents and governors is to unilaterally impose executive gun control which has no basis or justification in statute — and then “negotiate” with us over how much of the lawlessness to keep.

The ATF did exactly that with veterans during the Clinton administration.

And, with veterans, rather than challenging Clinton’s lawless actions in court, some gun groups negotiated with him — accepting some of his lawless interpretations, while attempting to blunt others.

It’s generally considered a mistake to negotiate with lawless people about how much lawlessness is okay.  And, if, buoyed by this “compromise,” lawless gun grabbers in governors’ mansions across the country do the same over the next decade, it is going to be a long, slow slog for the Second Amendment community.