Gun Control Debate Part Five: Background checks for everyone

Universal background checks or a national gun registry would infringe upon no one’s rights.

Mandatory background checks seem to be the in-vogue panacea to eliminate gun crimes. How can anyone be opposed to anything that is as attractively worded as a “universal background check?” However, to ensure that the conversation is on an equal footing, we need to talk about what background checks actually are and what they do. Through my (decidedly un-scientific) studies, it appears that an alarmingly large portion of the population believes that gun buyers undergo no kind of background check. An almost as alarmingly large portion of the population believes that everyone undergoes a background check before buying a firearm. As is usual when discussing almost anything, ignorance is our real enemy. We absolutely need to know what the background check system is, and what it is not, before we can discuss its merits and drawbacks. This portion is informational and is a little bit dry. However, if we do not know what it means when someone says “background check” how can have a reasonable debate about it? Tough your way through it.

What is a background check and what does it actually check for?

When a US citizen goes to a registered gun dealer or Federal Firearms License Holder (FFL) to buy a firearm, they must go through the National Instant Criminal Background Check System or NICS. (Generally speaking, some states have slightly different procedures) NICS is a system to determine if a prospective gun buyer is prohibited from purchasing or possessing a firearm under the Gun Control Act of 1968. NICS was mandated by the Brady Handgun Violence Prevention Act of 1993 and initiated by the FBI on November 30, 1998. A prospective firearms purchaser must show identification indicating that they are residents of the state in which they are purchasing the gun. Identification is also used as proof of age; it is illegal for gun dealers to sell long-guns (shotguns and rifles) to anyone under 18, or handguns to anyone under 21. The prospective buyer is then required to fill out a form 4473. This form requires a copy of a government-issued photo ID, the name, address, date of birth, and the NICS transaction number of the prospective buyer, social security number is optional. Form 4473 also includes the make, model, and serial number of the firearm, or firearms, being purchased, and a federal affidavit stating that the purchaser is eligible to purchase firearms under federal law. Lying on this form is a felony and can be punished by up to five years in prison, in addition to fines, even if no firearms transaction takes place.

Following completion of the Form 4473 the FFL places a phone call to one of three NICS call centers around the country, in Fort Worth, Texas, Barbourville, Kentucky, or Wheeling, West Virginia. The FFL transmits the information from the form 4473 to contracted employees working in the respective call center. A name and descriptive information search is then conducted using three national databases. These databases are the National Crime Information Center (NCIC), which contains information on wanted persons and active protection orders; the Interstate Identification Index (III), which contains records of criminal history records; and the NICS Index which contains records not available in the NCIC or the III pertaining to persons determined to be prohibited from receiving firearms under federal or state law.  These specific prohibitions apply to anyone who:

 18, U.S.C. §922 (g) (1)
Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year

18, U.S.C. §922 (g) (2)
Is a fugitive from justice

18, U.S.C. §922 (g) (3)
Is an unlawful user of or addicted to any controlled substance

18, U.S.C. §922 (g) (4)
Has been adjudicated as a mental defective or committed to a mental institution

18, U.S.C. §922 (g) (5)
Is an alien illegally or unlaw-fully in the United States or who has been admitted to the United States under a nonimmigrant visa.

18, U.S.C. §922 (g) (6)
Has been discharged from the Armed Forces under dishonorable conditions

18, U.S.C. §922 (g) (7)
Having been a citizen of the United States, has renounced U.S. citizenship

18, U.S.C. §922 (g) (8)
Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner

18, U.S.C. §922 (g) (9)
Has been convicted in any court of a misdemeanor crime of domestic violence

18, U.S.C. §922 (n)
Is under indictment for a crime punishable by imprisonment for a term exceeding one year

If no prohibiting records are found pertaining to the prospective buyer then the firearms transfer proceeds. If the search matches prohibiting records to the buyer then the FFL does not complete the sell. Typically this manner of NICS check takes anywhere from five minutes to an hour to complete, depending on volume of sells at the time of the check. However, if a prospective buyer is flagged by a document in the system, the call is transferred to an FBI center in Clarksburg, West Virginia. An FBI legal examiner then searches the records system to determine if the sell can proceed. If the search takes more than three business days then the sale can go through. If it is later determined that the sale was fraudulent then the BATF has the responsibility to recover the firearm(s) from the sale.

Once Form 4473 is completed and the transaction approved, the FFL holder must retain records of the form in a “bound-book” or transaction log. An FFL must keep a copy of all completed form 4473’s in the “bound book” for at least 20 years in the case of completed sales, and for 5 years when the sale was denied by NICS.  The FFL is required to surrender the log to the BATF upon retirement from the firearms business. The BATF is allowed to inspect or request any copy of the Form 4473’s from any dealer during the course of a criminal investigation. Form 4473’s are given the same status as a tax return under the Privacy Act of 1974 and cannot be disclosed by the government to private parties, or other government officials, except in accordance with the Privacy Act. In addition, the sale of two or more handguns to one person within a five-day period must be reported to ATF on Form 3310.4. This form is worth a look if you have never seen it. Basically, buying two handguns within a five day period will get you reported to the BATF and your local chief of law enforcement. Draw your own conclusions.

If a person purchases a firearm from a private individual who is not a licensed dealer, the purchaser is not required to complete a Form 4473, though some states require individual sellers to sell through dealers, in which case the FFL procedures apply. In either case, it is illegal to sell a firearm if the seller knows, or has a reasonable belief, that the buyer is prohibited from receiving or possessing a firearm.

OK, so we know what the NICS system does, and how it operates. Does it work?

Yes and no. The NICS system works as it was designed. However, there are major flaws in the system and it is certainly not the answer to abolishing gun crime

One of the major issues with the NICS system is the massive lack of record keeping, especially when it comes to mental health and drug use. Over a decade and a half after it became operational, NICS is still a patchwork system that relies on woefully incomplete information. This is due to the fact that most states submit very few records to the system, and in some cases, none. Failure to submit these records facilitated the purchase of firearms by the shooters in Tucson, Virginia Tech, and Aurora. The “NICS Improvement Amendments Act” of 2008, provided federal grants in order to help states improve their ability to maintain records and provide them to NICS. Congress authorized $875 million to improve the system but since passage of the bill, only about $50 million has been appropriated. Published reports indicate that two dozen states have submitted fewer than 100 mental health records to the system; multiple federal agencies have also failed to provide records.

Another issue is lack of enforcement for existing laws. The DOJ barely prosecutes background check fraud. In 2010, 74,142 people were denied transfer of a firearm through NICS. Only 44 of those people were prosecuted and just 13 convicted of lying on their form 4473. The DOJ has yet to explain this lack of enforcement of existing laws. No one knows if it is manpower or funding issue. One would think that for people who claim to want to reduce gun crime, prosecuting NICS fraud would be a good place to start.

So, the current background check system is not great. Does that mean that we should stop using it?

Absolutely not, in fact information that the state and federal governments already have, like records of who is a felon, should be added to NICS as quickly and efficiently as possible. Those that have been adjudicated as mentally ill should not have access to firearms. However, the government does not need, and should not have, access to the medical records of the average citizen. The NICS system should be repaired and streamlined but it is not a panacea for gun crime.

A better use of resources would involve relentless pursuit and harsh prosecution of violent felonies involving guns. We know that criminals attain and use firearms. Make them pay for it. The majority of people denied through the NICS are felons, people with active restraining orders, or fugitives from justice. When one of these people lies on a form 4473, have the police show up and arrest them. The police will know right where they are, go and pick them up!

So why not have “universal” background checks?

In the minds of those that support expanded background check laws, the government should be able to able to immediately ascertain if a prospective gun buyer has any legal or mental issues that would preclude them from purchasing or possessing a firearm. This is just not possible. To make this a reality, the government would have to maintain a data base covering legal and mental health records covering every citizen of the US. Should the government have the authority to access the medical records of everyone in the country? I think not, the implications of such a violation of personal privacy are mind numbing. That level of intrusion would certainly be a violation of everyone’s rights. When there is an idea that is so abysmal that the ACLU and NRA agree on how bad it is, that is a real achievement. Universal background checks have reached this pinnacle of success. ACLU and NRA

When the government fails to enforce current laws why are they in a hurry to pass new ones? The Vice President of the United States allegedly said:

“Regarding the lack of prosecutions on lying on Form 4473s, we simply don’t have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.”

Then why do you want to pass new laws? The words “political grandstand,” come to mind. What does it say to citizens who do their best to comply with the law when the government cannot be bothered to prosecute those who violate it? Do you believe that your average criminal goes down to the local gun shop, fills out the form to complete a background check, pays MSRP for a gun, and then uses it in the commission of a crime? The idea is ludicrous.

If you believe, as many media outlets claim, that a firearm can be purchased on the internet, I recommend that you try it. Ditto for exploiting the gun-show “loophole.” What is referred to as a “loophole,” is a personal sale between two citizens, unregulated by the government. This sale does not have to occur at a gun-show, it can take place anywhere. As mentioned above, it is still illegal to sell a gun to anyone that you know is prohibited from possessing it. Most folks are pretty leery of the people whom they sell guns, because most citizens are law-abiding. That is obviously not a fool proof method for ensuring that a gun buyer is not a criminal but neither is a NICS check.  The best solution is to provide incentives for voluntary checks. Gun owners do not want to sell firearms to criminals and would not hesitate to use a system that did not require record keeping. The effects on crime would be very small but similar to the effects of a mandatory FFL transfer. This solution would also allay much of the expense inherent to an expansion of the NICS system and likely increase participation in the program. (It is an interesting aside that many of those most passionate about expanding the requirement for background checks on firearms, are also vehemently opposed to requiring a valid ID be presented prior to someone casting a ballot. I am not making a value judgement but someone please explain that one to me, I just can’t follow the logic.)

One of the huge problems with mandating the use of the NICS system for private sales is that the law would be unenforceable without a national firearms registry. There is simply no way to know if someone sold a gun “off of the books,” without a registration and registration is not something that any student of history can support.  A national gun registry is absolutely a precursor to gun confiscation. A national gun registry does not contribute to the security of the law-abiding and is a role call for citizens that will be targeted for prosecution once currently legal weapons are made illegal. I don’t need to cite any totalitarian historical examples like Nazi Germany or the Soviet Union. Take a look at California and New York. As these states make registration mandatory they are changing the classes of firearm that are legal to own. California is in the process of making every semi-automatic rifle illegal, despite the fact that these weapons are clearly “in common usage,” making them protected by the Supreme Court’s Heller decision. Take a look at Great Britain and Australia. In both countries registration has clearly led to confiscation. Registration is not an acceptable course of action in America.

Who would gun registration target? In Haynes v. US, the Supreme Court ruled that a felon cannot be found guilty of a crime for not registering an unlawful firearm, because it would be a violation of Fifth Amendment rights. Consider the possibilities of a law that requires the registration of firearms. A convicted felon cannot be convicted for failing to register an illegal firearm but a citizen that legally owns a gun, and fails to register it, will become a convicted felon. Proponents of a national firearms registry; who are you trying to punish and who are you trying to restrain, criminals or citizens?

Take a look at the sordid history of Prohibition in America. From the 18th Amendment to the “War on Drugs,” criminals will find a way to get prohibited items to the people that are willing to pay for them. Hence, universality of background checks cannot be achieved. At this point in the argument, someone with a mouthful of snark typically demands, “Should we just get rid of laws against assault, rape, and murder, since they don’t keep people from committing crimes either???”

No dumbass. The background check requirement is intended as a prophylaxis, a preventative measure to keep guns out of the hands of those that are prohibited from possessing them. The laws covering murder, assault, rape, etc. are in place to enforce the apprehension, prosecution, and punishment of those who have already committed a crime. The only practical reasoning for the expansion of background checks is to keep firearms away from those who are most likely to use them in the commission of a crime. These are the people most likely to acquire guns outside of a legal background check system.

I am trying very hard to stay away from statistics on this site; I am a shooter, not a statistician. However, politicians keep claiming that “90%” of Americans support expanded background checks. Where are these people? Is the 10% of the population that does not want these laws only in Colorado Springs? Either that fact is a really interesting statistical anomaly, bearing further study, or people making this claim are full of pre-digested, organic, materials. I have yet to talk to anyone in person who is in favor of new background check laws. I work in a strange place with some strange people so I guess anything is possible though. Someone get on here and tell me I am wrong.

At this point in the conversation someone usually gasps, “But we have to do something!” Look, if someone is on fire, they can run in circles, flapping their arms and screaming until they immolate; or they can stop, drop and roll, thus extinguishing the flames. Both are “doing something.” One option is effective, immediate, and improves the situation; the other is just a panic-induced waste of time.  I have made some effective suggestions above, but I do not have all of the answers. There are some good ideas out there. Rehashing the same tired programs that have demonstrably failed (Virginia Tech, Tucson, and Aurora) just because they are the government control, party-line, is not the answer. Show Americans an idea that will reduce gun crime, without infringing upon their rights, and they will get behind it one-hundred percent.

So, universal background checks would either be an infringement upon freedoms, or expensive and ineffective at the intended purpose, keeping guns from the hands of criminals. The final opposition to universal background checks comes down to trust. Those that are advocating for expansion of background checks have proven, time and time again, that they are not to be trusted.  They have stated, over and over, that background check expansions are “just the beginning.” Advocates for “gun control” have repeatedly demonstrated a desire to totally disarm the American populace. They have displayed a need to infringe upon the rights of others to the utmost limits of political will; as I discussed in Part Four. Those that would disarm the populace, truly believe that they know better than the American people, history, and the founding fathers of the United States. They believe that the Constitution is outdated, elastic, and an impediment to “progress.” Those on the side of liberty would be wise to judge proposed legislation based upon its efficacy and not emotional reaction. They would be wise to judge those proposing legislation by their private speech and acts, not their public rhetoric.  Anyone who values any of the freedoms enumerated in the Bill of Rights, would be wise to oppose those whose heart’s desire is to infringe upon those rights.

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