I'm working on a series of essays to share on social media and perhaps direct mail on why the gun control proposals the anti movement is so enamored of won't work the way the anti's think they will, if at all. The first is on Universal Background Checks. I'd appreciate feedback and input, and remember, you are not the target audience. You've seen all of this before.

Universal Background Checks
The pro-increased gun control demographic, PGC for short, are nearly unanimous in their desire for a universal background check, either for all sales or all transfers. This is seen as a “common-sense” gun control measure that will help keep guns out of the hands of those who would do violence, criminals and the violently mentally ill. I don’t think anything thinks that keeping guns out of the hands of criminals and madmen is a bad idea. The issues around UBCs are definition, effectiveness, enforceability and onerousness.

Sources: Data sources used by the author will include the FBI Uniform Crime Reports; FBI Active Shooter website; the CDC’s WISQARS searchable database; various publications from Department of Justice, National Institute of Justice and Bureau of Justice Statistics; and ATF publications.

Definition

A background check is the requirement that a buyer, recipient or transferee (hereafter just buyer), along with the seller (donor/transferor) meet at an FFL, the buyer complete the Form 4473, both provide identification, the necessary fees, if any, be paid and upon the NICS clearance of the buyer the transfer can occur. Currently, all new guns and all used guns sold by an FFL must be sold after clearance by the NICS background check system.

NICS, or National Instant Criminal Background Check System, is a U.S. system for determining if prospective firearms or explosives buyers are eligible to buy. It was mandated by the Brady Handgun Violence Prevention Act (Brady Law) of 1993 and launched by the Federal Bureau of Investigation (FBI) in 1998. Prohibited person input comes from authorized local, state, tribal, and federal agencies who update NCIS Index data via the NCIC front end, or by electronic batch files. In addition, the NICS Section receives calls, often in emergency situations, from mental health care providers, police departments, and family members requesting placement of individuals into the NICS Index. Documentation justifying entry into the NICS Index must be available to originating agencies.

Prohibited persons, ie, those who should be denied by NICS, are defined by law as: Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; Is under indictment for a crime punishable by imprisonment for a term exceeding one year; Is a fugitive from justice; Is an unlawful user of or addicted to any controlled substance; Has been adjudicated as a mental defective or committed to a mental institution; Is illegally or unlawfully in the United States; Has been discharged from the Armed Forces under dishonorable conditions; Having been a citizen of the United States, has renounced U.S. citizenship; Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; Has been convicted in any court of a misdemeanor crime of domestic violence.

Some states have their own BGC systems, used in conjunction with NICS. Some use the state process for all firearms or just for some subset eg, handguns.
A uniform background check system seeks to impose the requirement for a NICS/state background check for all private sales and transfers. Some proposals state that all transfers of any type and duration require a background check but most have exceptions to a mandatory background check. Some of the more common exceptions are for some or all transfers between close family members; temporary loans for hunting and other recreational use; or for emergency self-defense purposes.

Arriving at a useful, acceptable standard for what is required and exempted from UBCs is a difficult task made more so by the ignorance and bias of those writing the laws, and recent implementations at the state level have shown that UBC laws written by PGCs are self-contradictory in some cases, unwittingly restrictive in others and aren’t actually enforceable as written. I’ll address the first two concerns here, as enforceability will be discussed in a later section. In Colorado’s HB 13-1229 law, firearms transferred as “bona-fide” gifts and loans to immediate family members are exempt from the background check requirement, but sales between family members are not (“bona-fide” is not defined in Colorado law). The PGC Democrats who constructed this law generously extended the exemption to loan a firearm for hunting from the first draft’s “72 hours” limit to “while hunting”, but failed to define “while hunting”. That grey area was further restricted in the law in that the transferee was only exempt from the background check requirement when the hunter possessed the firearm where a license to hunt was possessed and where hunting is legal. Since hunting generally isn’t legal at one’s domicile, nor on the highways from said domicile to the hunting area, the law limits an exempted transfer to take place at the actual hunting area, which could be hundreds of miles from the domicile of both parties. Additionally, law enforcement is not exempt, as LEOs must pass background checks to be issued their service firearms.

In Washington State, the new law requires a background check before the owner can allow a second party to temporarily take possession of the firearm at either’s domicile, even to merely hold it for examination. Laws that contain these clauses will not be considered as “common-sense”, and the use of this term by PGCs will only make it more difficult to reach common ground. Likewise, the use of the term “gun show loophole” is also regarded by pro-gun rights people as a misnomer used in ignorance, as most gun sellers at gun shows are FFLs, and they are already required by law to have their buyers pass a NICS check. A private sale at a gun show is simply a private sale at a specific venue.

Lastly, “internet sales” from a commercial seller with an internet presence must be shipped to an FFL in the buyer’s state and not released to the buyer until a NICS check is passed. Interstate private sales of firearms must also be sold through an FFL in the buyer’s state, subject to NICS checks.

Effectiveness

The push for increased gun control is based on the shared desire to reduce gun violence and increase public safety. Commonly, PGCs use a figure of “30k gun deaths per year” as “gun violence deaths”. The actual CDC figure (2013 data) is 33,636: 11,208 homicides; 467 legal interventions; 21,175 suicides; and 505 unintended deaths (accident/negligence). CDC also listed 281 of undetermined intent. While there may be some indeterminate number of suicides that may be prevented by a NICS check, the legal difficulty of getting mental health data into NICS and the easy substitute of non-firearm methods suggest that suicide prevention is not a significant benefit of background checks. Likewise, legal intervention homicides and negligent deaths won’t be affected by a universal background check system. It’s clear that the principal goal of a UBC is to keep firearms out of the hands of convicted criminals and those currently in the criminal justice system as prohibited persons with the sole purpose of increasing public safety. If public safety isn’t increased, there is no benefit.

In the 2013 DOJ internal memo “Summary of Select Firearm Violence Prevention Strategies”, the DOJ identifies three requirements for an effective UBC: an ability to curtail straw purchases, required gun registration and an easy gun transfer process. Given that we don’t currently have universal gun registration (prohibited by federal statute), and while straw purchases are illegal they are difficult to detect and prosecute, we can’t get a perfect universal background check system. Any proposed system will necessarily be imperfect and crimes resulting from firearms acquired outside the system will continue.

Since all commercial sales currently require background checks, this new requirement is focused on extending NICS background checks to private sales and transfers. Private transfers can be divided into four basic categories: Lawful sellers selling to known lawful sellers (eg, friends, family, CCW holders, law enforcement) – in other words buyers who can be expected to pass any background check; lawful sellers selling to buyers of unknown legality; criminal sellers selling to known lawful buyers, and criminals selling to buyers of unknown legality. No decrease to public safety that could be prevented by a background check happens when lawful buyers purchase a firearm from a legal or illegal source, although the latter may be a crime if the property is stolen. No criminal seller will require that a buyer pass a background check. The only transaction where public safety is potentially at risk and where public safety will possibly benefit is when a lawful seller sells to an unknown buyer who might be a prohibited person.

The effectiveness of a UBC for private sales in entirely dependent upon the lawfulness of seller and the perceived risk of the buyer to the seller. Given a lack of perceived risk in the eyes of the seller, the chance that he/she will require a known lawful seller depends upon the ease of transfer and the enforceability of the law (to be discussed in the next section). If the recipient or transfer type fits an exemption to the law (family, CCW holder, particular activity), then the transfer is a simple as it gets, requiring no legally required action on either party. If the transfer is not exempt but the transferor perceives no risk (sale to a best friend, loan for legal purposes not otherwise exempted, etc), then the transfer process needs to be easy, quick and cost effective to expect 100% compliance. By definition, lawful sellers don’t want guns in the hands of potentially violent users so they’ll be much more likely to use a BGC process for unknown buyers. Again, the only benefit to public safety is if the background check stops a sale to a prohibited person.

The current Colorado law, in effect since July 1 2013, showed mixed results during the first year. Of the 311,000 background checks conducted by the state run background check process, 13,600 were for private sales. This shows that either private sales were only 4% of total gun sales, rather than the 40% number held to by PGCs and cited constantly in the rush to pass HB 13-1229, or upwards of 93% of private sales didn’t bother to use the required UBC check. 260 of the 13,600 checks were denied or 1.9% denial rate. Records indicate 3 arrests resulted from the private sale denial process. In 2013 NICS processed 21 million background checks with a denial total of 88,000, for a denial rate of 0.4%. Once denied, a potential transferee can appeal the denial if they feel that the denial was in error. The average appeal success rate is 30%.

In 2010, 73,000 applicants were denied, and with a 30% successful appellant rate, that means that around 50,000 prohibited persons who attempted to purchase a firearm legally were denied. As an FFL won’t submit a Form 4473 for NICS processing if any of the questions indicate prohibited person status, the applicants would have had to falsely complete the 4473. Lying on the Form 4473 which includes questions on previous criminal convictions and drug use is a felony. In 2010, less than 50 of those denied by NICS while seeking firearms were arrested, and this arrest rate is typical for most years. In the DOJ study “Summary of Select Firearm Violence Prevention Strategies”, ATF research found that about 75% of guns used in crimes were acquired through straw purchases and theft. Given that about 50k convicted felons and violent misdemeanors were not arrested or detained, leaving them free to search out illegal methods of firearm acquisition, extrapolation using the ATF data shows that up to 37,000 violent criminals acquired firearms in methods completely unstoppable by any background check requirement. That figure could be even higher if we assume less than 100% compliance for normal private sellers to use a UBC. In regards as to why the arrest rate for felons who gave their name and address to authorities is so low, VP Joe Biden, the Administration’s Gun Control Czar, said “…we simply don’t have the time or manpower to prosecute everyone who lies on a form, checks a wrong box, that answers a question inaccurately”. 38,000 violent felons, looking for guns, committing a least one felony in the process, who gave their name and address, and the government can’t be arsed to arrest them – those who are against more gun control laws can rightfully point to this and suggest that perhaps we should enforce the laws we have before creating new laws, especially ones that can’t be enforced. How many homicides, assaults and other violent crimes could be prevented by arresting these felons?

Enforcement

This is the fatal flaw of a universal background check. There is simply no way to enforce it. It isn’t possible to determine if a firearm in the possession of a citizen was purchased through a required universal background check. There will be hundreds of millions of grandfathered firearms already in public hands that could have been sold private seller to private buyer, legally, safely, multiple times prior to the enactment date of any new UBC requirement. Additionally, given the various exemptions that will likely go along with a UBC, law enforcement simply won’t have the capability to determine if the UBC law was followed or not.

The DOJ report reference multiple times pointed this out: A UBC, to be effective, has to be accompanied by a full gun registration. Registration is currently against US law, and even the Manchin-Toomey amendment did not try to change that restriction on the government. Even if the requirement somehow made it past Congressional and Executive approval along with SCOTUS review, the efficacy of such a program is in doubt. The state of Connecticut recently enacted a law requiring registration of “assault weapons” and “high capacity magazines”. Failure to comply is a class D felony, yet numbers indicate that only about 15% of the estimated gun owners complied. In Canada, gun registry efforts there were ended by parliamentary action. 72% of citizens polled believed that the registry had no effect on crime. The Edmonton Police Association voted 81% in favor of scrapping the registry process. In “Gun Control and the Reduction of the Number of Arms, Franz Csaszar, a professor of criminology at the University of Vienna, Austria, wrote, “non-compliance with harsher gun laws is a common event.” He estimated that Germans registered 3.2 million of 17-20 million affected weapons when registration was implemented in that country in 1972. Austrians, he says, registered perhaps a quarter to a third of weapons subject to a similar law in 1996.

Onerousness

A successful UBC process must have an easy gun transfer process. Any system that follows the current federally defined transfer process requiring NICS screening must take place in person with an FFL. The states that have instituted UBCs acknowledge that the time for an FFL to conduct a transfer from one third party to another has economic value and allows FFLs to charge for this transaction. FFLs are not typically a 24/7 operation, which creates limited transaction windows for prospective buyers and sellers. Additionally, not all FFLs will conduct third party transfers at all, and some of those that do limit the days or hours of normal open operations times for these transfers. All of these increase the burden to sellers and buyers for private sales and transfers.

A common retort is that PGCs don’t care how much of a burden is added to a UBC as long as the process has a positive impact on public safety. Perhaps that’s the wrong position to hold. As has been discussed here, the only type of transaction that a UBC can possibly positively affect public safety is when a lawful seller is transferring to a potentially prohibited person, and it’s incumbent upon the seller to require the background check. Given that the UBC law is unenforceable, the public is dependent upon the seller to force a background check for the sale. The harder that transfer is to do legally, the more likely that the seller will simply ignore the requirement and allow a possibly prohibited person to purchase the gun.

Alternatives to UBC

Make the transfer easy. Allow individuals the ability to access NICS directly, perhaps via an app or website.
Enforce the law. Make the government do its job and track down the 50k felons who failed a BGC while looking for a gun.
Make it cheap. Currently the states with UBCs require the buyer to pay for the background check. If background checks are a public safety issue, have the public pay for them. Otherwise, the buyer is being forced to pay to exercise a right.