Of the many common rhetoric of the gun-control lobby, one of the more frequent we hear is a call for “Universal background checks.” This article covers all the core points surrounding the arguments for and against this legislation.
Interestingly various research studies have shown that a majority of gun owners favor Universal Background checks. I don't know how much credibility to put in these studies, however the chance that it's true brings me to feel a need to write this article. WHY are gun owners themselves divided in the ranks?
What Are “Universal Background Checks”
The Brady Handgun Violence Prevention Act of 1994 (Brady Act) requires federally licensed firearms dealers (FFLs) to perform background checks on prospective firearms purchasers to ensure the firearm transfer would not violate federal, state or local law.
Anyone who makes a business out of selling firearms is required to obtain an FFL from the ATF. The law doesn't currently have any provision that requires background checks for private sales or transfers from one individual to the next within the same state. The media calls this the “gun show loophole” or “internet loophole” and feels we need a new law to close the gap.
While we would imagine that some private transactions take place at gun shows, FFLs process the vast majority of transactions that take place and all those require a background check. Put differently, the laws that apply at gun shows are the same laws that apply everywhere else in the country. There are no legal exceptions for gun shows or internet purchases, period. (Great piece from the website ‘Truth About Guns' about the supposed loophole)
In 16 states, local or state laws require universal “point of sale” background checks for every transfer, which include transfers between private parties.
THE CURRENT MAP
States in RED fully restrict any transfer of a firearm without a background check while States in GREEN prohibit any transfer of handguns only without a background check. Some states (both in red and green) require the purchaser obtain a permit in advance of the purchase which requires the background check. We have not distinguished this methodology for purposes of the map.
While States in BLUE do not have incremental state laws that close the “private sale loophole” they naturally still conform to the Federal law and rules maintained and in part enforced by the ATF that require that anyone in the business of buying or selling guns obtain a FFL and once they have one they perform background checks on all buyers.
But We Don't Want Bad People To Get Guns Right? Why In the World Would Anyone Oppose Background Checks?
Ok, on the surface I admit the sales pitch sounds really good. I can see the survey takers calling up random households and asking something like “Do you support legislation that requires all gun buyers to pass a background check?” and I can so easily hear the average person… and gun owner… responding “Yes!”
It makes some logical sense right? If you are a law abiding gun owner why not just subject yourself to a background check you know you will pass and sleep well at night knowing how many criminals might be stopped from buying guns because they fail the backgrounds check.
But I'm here to argue today that it isn't as simple as it seems.
The Misinformation Being Spread
LIE: “40% of Firearms Sold Don't Require A Background Check”
The most common lie we hear from politicians (including Obama and Clinton) is that as much as 40% of firearms sold don't require a background check. This would lead us to believe that for every 100 guns sold in this country, 40 of them were sold by private individuals and thus didn't require a background check. This figure of 40% is derived from a 1994 survey of only 251 people. The survey is flawed in so many ways. First, its over 20 years old. Second, even if the study was trustworthy, studies of the survey data suggest that using the 40% figure is an exaggeration of the findings. At the highest only 22% of gun sales come from private sellers (Washington Post Fact Checker). Third, and most important, no survey based on a sample size of 251 in the context of millions of gun purchases can be considered statistically sound. It wouldn't even pass a high school stats class standard. (Yeah, it's that ludicrous). For more details about the statistically silliness read this great article from Truth About Guns.
LIE: “Criminals Exploit The System By Buying Guns From Private Sellers So They Can Avoid Background Checks”
Probably the most disturbing lie about this proposed legislation is that it suggests it will solve a problem that is somehow responsible for American tragedies. The media and many politicians would have you believe all the famous killers of the last five years all went to a gun show, approached a private seller, and proceeded to purchase big and scary guns without a background check. This is almost never the case. The majority of criminals either A: Get their guns legally by passing a background check, B: Steal the firearm from a friend or relative (stealing is already illegal), or C: Steal the guns in car break-ins, home invasions, or other criminal pursuits (also already illegal). (Chicago Sun Times Reports on a Recent Study) See more info below on this article about where most mass shooters get their guns…
Lie: “The Number Of People Failing Background Checks Proves That It Works”
Some politicians also attempt to point out the success of the law in states like Colorado as a reason to pass it at the Federal level. Don't be fooled by the numbers they give you. They may tell you that a certain number of people have been stopped based on the numbers of how many didn't pass background checks when trying to buy a gun. Check those stats to see how many of those failures took place with FFLs where the person would have had to have passed a background check before the law passed; meaning that with or without Universal Background Checks a high percentage of the failures would have failed anyway… because those buyers go to gun stores to buy guns.
Also, a study in 2009 suggested that 94.2% of denials are actually false positives anyway, which means a lot of those people were able to buy guns after sorting out whatever it was that triggered the denial in the system. Also take note that no research can tell you how many people that fail background checks just proceed to obtain a gun illegally after the denial in the store. Having failed the background check only slows down the “potential criminal” from getting a gun; it doesn't actually stop them.
Frankly can you actually believe that real criminals with bad intention (who are already convicted felons and thus can't pass the background check) march into gun stores attempting to buy guns only to discover to their own shock that they didn't pass? Or is it more likely that they have already been informed that their criminal record prevents them from owning guns and thus if interested in a gun they are likely to commit a crime (again) and buy one via illegal means?
Why It Won't Make Any Difference
This legislation won't make any difference because people who have decided to harm others can still get guns just as easily with a “Universal Background Check” law in place. There is extensive evidence to suggest this is the case by looking where past criminals have obtained their guns. Here is an article published by the New York Times (shocking) in which they outline where the last 16 most popular shooters got their guns. Spoiler alert… they almost all passed existing background check laws except for one who stole the guns from his mother. Put differently NOT ONE of these instances would have been prevented if a Universal Background Check law was in place.
The other reason it won't make any difference is because offenders are rarely prosecuted for breaking the law. Stop and think about this. It is illegal to violate the Brady Act (meaning it is illegal for a prohibited person to obtain a gun) but the criminal is only “stopped” if they are caught and prosecuted. The average number of bad guys that are “stopped” and prosecuted each year for breaking this law… about 3.5 people per year.
Why The Gun Community Sees it As Potentially Harmful
Before we get into the real dangers let's start with something more practical; the cost of enforcement. If you look at states where Universal Background Check laws have been passed you can discern a few patterns. First, local law enforcement has no means or resources by which they can enforce the law. Unless a firearm was clearly manufactured after the law was passed there would be no inference that the owner had acquired it after the law was passed making it almost impossible for law enforcement to detect or prove that the law was violated.
The term transfer is a boiling pot of hot water. If the law criminalizes transfer of a firearm without a background check how can you try out your friend's gun when standing next to him at the range? How can your spouse pick up your firearm in self-defense without breaking the law? In fact, in 2014 in Colorado, a law enforcement agency wasn't sure how to return a firearm to its owner without breaking the law since the agency itself doesn't have a Federal Firearm License and can't run background checks (Story). You may suggest that the law could contain provisions that allow family members to transfer firearms without background checks (like the Colorado law does) but that makes the point all the more invalid and makes the enforcement all the more impossible. Why make a law and then put a bunch of exceptions into it making it almost worthless.
Would / Could It Lead to Registration?
What happens when you pass a law that is impossible to enforce? You pass more laws that make it easier to enforce the first law. In states where Universal Background Check laws already exist; law enforcement doesn't actually have any idea if it is working and they have no way to identify criminals of the law. Lets say I get pulled over or otherwise confronted by a law enforcement office. I have a gun. The officer would like to be able to identify if I passed a background check in order to obtain that gun. They can't. There is no way for him/her to know. What is the solution? Firearm registration is the only solution. By creating new legislation that creates a database of guns and their owners law enforcement would then be able to uphold the Universal Background Law previously passed by otherwise unenforceable.
Universal Background Checks > Firearm Registration
Certainly however the biggest reason gun rights advocates oppose the idea of Universal Background checks is because Firearm Registration takes us one step closer to firearm confiscation. It would be nearly impossible for the government to confiscate guns without knowing who owns what guns. The easiest way to create that database is by making all transfers of firearms require a background check both because it creates the SYSTEM by which the database can be built and it creates the NEED for Firearm Registration in order to enforce the law.
While you may have been told that the Federal government doesn't keep a database of gun buyers you have been misled. Yes, the FBI does destroy the paperwork and evidence of a background check shortly after it is performed, but the ATF requires that FFLs keep detailed paper records of every background check performed. These records must be made available to the government without notice; and should a FFL decide to close up shop the records must be turned over to the ATF. So, yes, there is a paper record of every background check performed and the government has access to it. That record includes the date, the name and address of the buyer, the make/model of the firearm, the serial number, the type of firearm, and the caliber/gauge of the firearm. All that is assuming the AFT actually does purge the data and isn't keeping records of all background checks…. which is hard to believe. Gun rights supporters take comfort in knowing that in the absence of a Universal Background Check law not every single transaction is recorded. If private transfers were criminalized, registration would be next and then confiscation wouldn't be far away.
Universal Background Checks > Firearm Registration > Gun Confiscation
If you do not support Firearm Registration you should not support Universal Background Checks.
This Essentially Creates a Tax on Firearm Purchases
A reminder that in most states Background checks cost money. The buyer has to pay a fee to the governing body for the background check which essentially adds one more expense to exercise a constitutional protected right.
The NRA Thinks We Should Just Fix The Broken System
In this video Wayne LaPierre speaks to the greatest weakness of the system is the lack of valuable data in the database. 38 States submit less than 80% of felony convictions to the system according to this video. Further the NRA urges that the background check system isn't a strong deterrent because those who fail to pass the background check because they are felons should be prosecuted but they aren't.
The argument in the video, while interesting and valid still misses the mark. I understand that making the existing system actually do what it is supposed to do makes sense. Why have the existing legislation if we know it doesn't actually stop criminals… but I would argue that the correct course of action is to do away with background checks entirely.
What do you think? Where do you stand on the idea of Background Checks?