02.20.2013 2

Background Checks deemed discriminatory by Obama Administration Agencies

By Rick Manning — Criminal background checks have become all the rage in Washington, D.C., as politicians scramble to try to ensure that anyone who ever even thought of owning a gun is subjected to a thorough electronic proctology exam.

However, one group that appears immune to background check fever are the ever helpful Obama officials at the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor’s  Office of Federal Contract Compliance Programs (OFCCP).

The EEOC and OFCCP have each determined that employers who use background checks as one of the determinants of whether to hire a prospective employee may be engaging in prohibited discrimination.

These federal agencies reason that the use of criminal background checks can lead to a disparate impact on minority job applicants.  According to these government agencies, in order for an employer to avoid claims that using a criminal background check is discriminatory, they must show that excluding applicants based upon criminal history is job-related and consistent with business necessity.

And the EEOC for its part is threatening lawsuits against companies which employ background checks.

Doesn’t this make you feel safer just knowing that the cable guy you are letting into your home may not be able to pass a basic background check because the cable company has decided to avoid an expensive federal government fueled lawsuit?

But let’s apply the EEOCs logic that criminal background checks have a disparate impact on minorities to the hot topic of the day — background checks for purchasing a firearm.

Clearly, the government would have to then agree that the expanded criminal background check proposals that are backed by Obama would have a disparate impact on the ability of African Americans to purchase firearms legally.

Given that the origins of gun control are firmly rooted in the Jim Crow laws of the post-Civil War south, it should concern everyone that the federal government is admitting that their background check solution actively discriminates against minorities.

Jim Crow laws emerged as a response to the 14th Amendment prohibition on states denying “the equal protection of the laws,” modifying many gun control laws passed immediately after the Civil War.  This 14th Amendment dictated change, where the law could no longer overtly discriminate against freed slaves, led to the racially “neutral” Jim Crow gun control laws that created bans on inexpensive firearms, prohibited the carrying of firearms and imposed licensing and registration of firearms.

As David Kopel points out in his column, “The Dark Secret of Jim Crow and the Racist Roots of Gun Control,” in the 1941 Florida Supreme Court case, Watson v. Stone, one Justice acknowledged that the laws were, “never intended to be applied to the white population.”

This unequal application of state laws prohibiting the carrying of handguns was often used as the rationale when then Texas state house representative Ron Wilson (D-Houston) introduced and eventually won passage of the law which allows all Texans who qualify access to a concealed carry license in the late 1980s.

Now, twenty five years after Ron Wilson’s victory in Texas, the Obama Administration is pushing for the same solutions that appealed to the Jim Crow Democrats in the 1880s, because ultimately, they have the same objectives — people control.

As the former Police Superintendent for the state of New Jersey, Clinton Pagano, admitted before an Assembly Judiciary Committee hearing in 1989, “it’s not about gun control, it’s about people control.”

What most people don’t realize is that the modern Congressional battle over background checks has almost nothing to do with whether they should occur, but instead the debate revolves around what should be done with the record of the background check.

Current instant background check laws, that the National Rifle Association supported, require that the record of the check be permanently deleted within a short time frame.  This prevents the background check request from becoming a de facto gun registration system.

The same type of gun registration system that were imposed in states like Mississippi during the Jim Crow era and repealed in 1986, that had the simple purpose of allowing the local sheriff to collect data on blacks who owned guns to enable confiscation if necessary.

Ironically, the first black president may effectively push through background check legislation that two of his own Administration’s agencies charged with preventing racial discrimination argue would have a disparate impact on African Americans.  Legislation that is likely to be used as a cudgel against them in the future.

Sounds more like a 1950s southern sheriff than a supposed 21st century post-modern president.

Just something to think about, as the gun debate continues to rage.

Rick Manning (@rmanning957) is the Vice President of Public Policy and Communications for Americans for Limited Government and is the former National Rifle Association lobbyist in Texas, Mississippi, Florida and New Jersey among other states.

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