You can’t challenge the constitutionality of a law that hasn’t harmed you. Or in other words: No harm, no foul.
That was the ruling of U.S. District Judge Benjamin Settle in Tacoma, who last week threw out a challenge to I-594, which passed with 59 percent approval in November. The initiative extended the state’s existing background check law to create a universal requirement for all sales, including online sales and gun shows as well as gifts and transfers of firearms.
The plaintiffs, including Alan Gottlieb of the Second Amendment Foundation, had no standing to file suit, Settle ruled, because none of them had been prosecuted for violating the law nor were they at immediate risk of prosecution.
Gottlieb and others in challenging I-594 had criticized the law’s provisions as being “so vague that a person of ordinary intelligence cannot understand their scope.”
There is a list of exemptions to the background check requirement, including gifts between family members, including cousins, or transfer to a gunsmith for service or repair. But foes of the law faulted I-594 for not being specific about whether an unmarried couple or a FedEx worker who transports a package containing a gun might be arrested. But the intent of the law should be clear enough — even to those of us with ordinary intelligence — that it wouldn’t take but the slightest exercise of logic to see that neither FedEx workers nor unmarried couples need fear arrest or prosecution.
Perhaps the best example that most gun owners aren’t likely to risk arrest was a demonstration staged on the Capitol grounds in Olympia shortly after the law’s passage where protestors handed their firearms back and forth in full view of law enforcement. Public protests are not a specific exemption, yet no arrests were made.
Gottlieb seemed disappointed no one was hauled off that day, the Associated Press reported last week, quoting him: “The state has gotten away with this because they haven’t prosecuted anybody. Why do we have a law on the books that nobody is prosecuting?”
Bob Calkins, a spokesman for the Washington State Patrol explained: Law enforcement isn’t likely to go after violations directly, but will go after violations of the background check law as officers investigate the history of weapons used in other crimes. Sell a gun without a background check to a felon, who then uses it in a crime, then you can expect to be prosecuted.
And beyond prosecution, the reason we have laws on the books is to help everyone understand where the lines are drawn and what is expected. A majority of voters determined it was reasonable to ask those wishing to obtain a firearm to submit to the relatively minor inconvenience of getting a background check, because doing so would increase public safety by making obtaining a firearm more difficult for felons and others prohibited from owning one.
We expect Gottlieb and others to appeal or to sue on different grounds, but if these are their best arguments, I-594 should stand.
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