On Thursday I posted a column about an article on gun sales in Business Insider which used the wrong data from the FBI-NICS background check system and thus wrote a piece about the large number of guns sold on Black Friday which was completely and totally wrong.
So, today we get another article about gun sales in another news website, 24/7 Wall Street, which says that gun sales declined sharply in November, 2021 compared to November, 2020. In other words, instead of gun sales going up, gun sales have gone down.
Except there’s only one little problem because the author of this latter piece, Douglas McIntyre, uses the same FBI-NICS background check data used by the writer for Business Insider, and by using FBI-NICS data which doesn’t say what he thinks it says, he also gets it all wrong.
The FBI-NICS group down in West Virginia publishes data on all the calls the group receives. And they refer to all these calls as ‘background checks.’ Except less than half the background checks that the FBI-NICS agents handle each month are for the transfer or sale of guns. In fact, calls come in to the call center for 24 different reasons, of which only 4 of those reasons happen to be calls where dealers are checking whether they can sell someone a gun.
Want to take a gun back from a pawn shop because it didn’t sell? The pawn shop can’t release that gun to you until they get clearance from FBI-NICS. Want to rent a gun to shoot at a public shooting range? Some states require that the rental can’t occur until a background check is done. You can find all 24 categories in the monthly report issued by FBI-NICS right here: NICS Firearm Checks: Month/Year by State/Type — FBI.
But Doug McIntyre didn’t use that report to write a story about how gun sales are way down. He used the report which gives monthly calls on a state-by-state basis but doesn’t break out the calls by why the background checks are being made: NICS Firearm Checks: Month/Year by State — FBI.
So, for example, he tells us that Kentucky registered 372,237 calls in November, which was 17% of all calls received, but the state has only 1.3% of the country’s total population. Man – they must really love their guns in Kentucky, right?
In fact, of those 372,237 calls that came in from Kentucky to the FBI-NICS call center in November, 340,000 were for rechecks of gun licenses so that the cops in Kentucky could make sure that someone who holds a gun license hasn’t committed a disqualifying crime since his license was previously approved. The number of background checks for November gun purchases in Kentucky was 29,060.
I own a gun store in Massachusetts but haven’t done any retail sales in the last couple of years. According to McIntyre, residents in Massachusetts bought 240,538 guns in November and if this were true, I would be crazy not to immediately re-open my shop. In fact (here we go again using that nasty word ‘fact’) the total number of background checks for November gun sales in Massachusetts was 10,851. Thank you very much Doug, but I’ll keep my gun shop closed.
McIntyre also has figured out how many guns were bought in each state this year which gives him the content for another article and gives 24/7 Wall Street more space to run ads.
I can’t wait to see the stories about the Michigan school shooting that will no doubt appear in media sites like 24/7 Wall Street or Business Insider. If those stories are as mis-informed as the stories about how many guns got sold on Black Friday, we won’t have the faintest idea about what happened at the high school in Oxford, or why it happened, or anything else.
As far as I’m concerned, what all this mis-reportage represents is the simple fact that gun violence, even in its most extreme form like shootings of multiple students in schools, has become just another, occasional item of news, without any real concern or sense that something is fundamentally wrong.
So far this year, about 435,000 Americans have died from Covid-19, which means we will probably top out at around 500,000 Covid-related deaths in 2021. So, the Pandemic has added about 15% to our annual death toll. That’s a big deal.
As for the shooting in Michigan, this event has only increased the overall mortality/morbidity gun-violence number by .0001%. No biggie, right? No biggie at all.
No wonder the experts who explain gun violence to the rest of us get it wrong.
Every year about a week into the new year, the FBI
publishes a report covering how many NICS background
checks were performed the previous year.
And while this number doesn’t cover all gun transfers, what we do learn
from this data is the number of guns that move from gun dealers to gun owners,
which is a very accurate way of determining whether Americans are still in love
with their guns.
Gun-nut Nation has been building up expectations about
the gun industry’s recovery from the Trump slump for the past several months.
At the beginning of December, Fox News crowed that “gun background checks on
record to break record in 2019.” And when the year-end numbers came out,
the pro-gun noise machine immediately announced with unbridled joy that “2019’s count is the most since the
National Instant Criminal Background Check System began in 1998.”
Know the old line
about how figures don’t lie but liars sure can figure? What Gun-nut Nation is
saying about the health of their beloved industry based on the 2019 FBI-NICS
numbers is true, except the truth happens to hide an important detail that
completely undercuts the argument about how the gun business is alive and
well. And that detail happens to be the
fact that more than half of the FBI-NICS checks conducted each month have
nothing to do with guns actually being sold or transferred into consumer’s
hands. These non-sale checks cover issuing and renewing licenses, taking guns
out of pawn, rentals, private sales, all kinds of transactions which, if
anything, reflect the extent to which gun ownership is an increasingly
regulated activity which goes far beyond retail gun sales. If anything, the
increase in NICS checks should be seen not as a sign of gun industry health,
but of the degree to which the regulatory environment continues to grow.
What really spurred
the slight increase in December gun sales, which were 4% higher in 2019 than
what was recorded for December, 2018, was that gun makers, wholesalers and
retailers all cut prices in order to bring buyers into the stores. Right now I
can walk into a gun shop near me and buy the Smith & Wesson Shield pistol
for seventy bucks under the MSRP. That’s
a price break? That’s a price collapse.
If and when the
Democrats begin narrowing down the field of Presidential candidates looking to
grab the brass ring and the chosen candidate decides to push an aggressive
anti-gun position as part of his or her campaign, we might see a real upturn in
gun sales without the gun industry forcing the issue by cutting prices. But if
the issue of gun violence is a function not of gun ownership per se, but guns
getting into the ‘wrong’ hands, who cares how many guns are bought and sold as
long as the individuals engaging in these transactions never commit any kind of
violent behavior with their guns?
If it were only that
simple. If we only had a regulatory system which could keep the most lethal
consumer product ever developed away from individuals who are either too stupid
or too violent to behave properly with a gun. On the other hand, what do we
really mean when we talk about behaving properly or responsibly with a gun?
Aren’t we really saying that guns should only be used in ways that will negate
the possibility of injuring yourself or someone else? If that’s the case, we
have a little problem because the whole point of buying a gun like the Smith
& Wesson Shield pistol is to use it, when necessary, to hurt someone else.
One way or another,
we are going to have to face the fact that many people believe in the notion of
‘virtuous violence,’ meaning that using violence
for a good reason (e.g., self-defense) is why they buy a gun. And as long as our approach to regulating guns
allows gun makers to appeal to folks who see violence as sometimes being a good
thing, we will find ourselves looking for some kind of silver lining in the
FBI-NICS numbers each month.
All of a sudden the boys down at Fairfax have become
very concerned about doing everything with guns in a very legal way. The NRA
website no longer contains those obnoxious, crazy videos from Dana, ‘home-school
Queen’ Loesch, or the dance-and-prance shooting lessons from Colion Noir. Instead,
now we get a whole menu of tips and tricks
about how to make sure that everything you do with a gun stays completely
within the law.
Except there’s only one little problem with the NRA‘s
new-found concern for making sure that all gun laws are properly observed. And the problem happens to be the fact that the
way the NRA chooses to describe certain gun laws may not be the way some
of those laws actually work. Take, for example, their advice on how to purchase
a gun as a gift for someone else.
The comment starts off like this: “Giving someone a firearm carries a certain level of legal responsibility
that does not come with gifting iPads or socks. You should know the laws that
apply to buying firearms as gifts for another person.” Fair enough.
I have no problem with the NRA‘s advice up until now.
But then things get a little
sticky, because the text then goes on to mention the fact that if you purchase a
gun from a dealer, you must undergo a background check which involves declaring
that you are buying the gun for yourself. But what if you knew that after
buying the gun you were going to walk out of the store, wrap the gun up as a
gift and give it to someone else? And let’s say further that you live in a
state where giving that gun to someone else doesn’t require another
background check? Which still happens
to be the law in 29 of the 50 states.
Here is what the NRA has to
say about that: “Even if you are not keeping the gun, you are the owner of
that firearm until you legally transfer it to the intended recipient.”
Sorry, but that’s not how the background
check law works at all. Because what the law says is that you have committed a
felony if you knew you were going to transfer the gun to someone else at the
time you first purchased the gun and
claimed on the 4473 background-check form that you were buying it for
yourself.
This issue was decided by the
Supreme Court in Abramski v. United States, which was argued and decided
in 2014. Bruce Abramski was a part-time cop who walked into a gun shop in
Virginia and bought a Glock. He then took the gun to Pennsylvania and gave it
to his uncle who had earlier sent him the money to purchase the gun. But to
take the gun out of the shop in Virginia, Abramski had to undergo a background
check, and even though he was buying the gun for his uncle, he certified that
he would be the legal owner of the gun.
Had Abramski paid for the gun in
Virginia but let the dealer ship it to another dealer in the uncle’s hometown,
he would have been following the law. But by walking out of the Virginia gun
shop with a gun which he knew was going to be given to someone else, he had committed
what we call a ‘straw sale.’
Abramski didn’t lie on the 4473 because
he was going to sell the gun to a ‘street thug.’ He lied to save himself the cost
of shipping the gun to a dealer in another state.
The real problem with gun laws,
and this is probably true of the legal system in general, is that you can’t write
a law that compensates for stupidity, and there’s plenty of stupidity floating
around the NRA.
Congress returned to work this week and the first order of
business is gun control legislation, at least according to all the news we’ve
been reading since El Paso and Dayton.
The mission seems to be, “do something, anything, to make this
stop.” Everyone’s talking about banning
this gun or that high capacity magazine.
There’s also the movement to pass a national red-flag law that will take
guns away from those who shouldn’t be allowed to have guns because of their
mental state. Or the best one yet –
comprehensive background checks for every gun transfer.
It’s all hogwash that might make some people feel they’ve done
something meaningful, but it will not change anything. Sadly, not one thing.
Because, no matter how horrible gun violence has become in
America today, it is not something we can legislate away. The problem goes much, much deeper than
anything a new law or background check can solve. Some would say its root is in bad parenting,
genetics, is the result of our overcrowded prison system, a failed mental
health system, gangs, the list could go on and on.
Dear Congress, write all the new laws you want (whether the
President will sign them or not), wanna know why they won’t put a dent in gun
violence? Because the bad guys don’t
care about laws – isn’t that part of the definition of “bad guy?” No matter how many laws are enacted, the bad
guys have already figured out a way to get around it. I could give two hoots what the NRA says
about this, I’ve seen it first hand as a cop – if a bad guy wants a gun, he’s
going to get a gun and there’s no law that’s going to stop him. Nice try.
Universal background checks are a great idea, if all of the
agencies across the country are reporting as they are supposed to. They aren’t.
Remember the Sutherland Park, Texas
church shooting in November, 2017?
It most likely wouldn’t have happened had the US Air Force reported
Devin Patrick Kelley’s less than honorable discharge after his court-marshal
for a domestic violence arrest. You see,
he passed the NICS check when he bought the rifle he used in the shooting…
because the US Air Force failed to report.
Many states and municipalities do not report criminal or mental health
issues that would prevent someone from buying a gun. So long as there are
states, agencies, and armed forces that are not fully reporting to NICS,
universal background checks will not work.
Another nice try.
So what about those red flag laws everyone is crowing about? Congress can pass a national red flag law
with the best of intentions. At some
point an angry ex-spouse, ex-business partner, angry neighbor, or other person
who is upset with a legal gun owner will fraudulently report that person as
being a hazard to self or others. The
lawyers will be circulating, waiting to sue the reporting party and challenge
the law. The legal beagles will probably
be successful because many of the state red flag laws currently on the books
completely disregard any due process for the legal gun owner. In my home state of Massachusetts, no hearing
is required before the police show up at the gun owner’s door with a warrant to
seize his guns. After the gun owner has
sold his house to pay the legal bills and proves he’s in charge of his
faculties or never made any threats, how does he get his guns back? He doesn’t, because in Massachusetts there is
no mechanism in the law to return the guns to the original owner. He winds up having to keep paying the bonded
storage charges (yep, the owner has to pay for storage when’s guns are taken
away). I give the red flag laws about a
year before the courts over turn them.
What can be done? My point
is that there is no single answer to the gun violence problem. Anyone who tells you passing a law will solve
the problem is flat-out lying to you. If
you believe and embrace this hokum-filled philosophy, I’m sorry, but you are
sadly misguided. This is a much, much
larger problem that has less to do with the gun than with larger societal
issues.
This happens to be the question which at the moment appears to be driving the 2020 campaign. Even the noisemakers who are promoting Trump seem to think that he can only help himself renew the lease at 1600 Pennsylvania Avenue if he comes out with a legislative package that will at least appear to contain some kind of gun-control ideas.
Now it comes as no surprise that The [failing] New York Times is urging passage of a gun-control bill. Big frickin’ deal (to quote Trump’s use of a time-honored expletive right out of any barroom in Queens.) But when The New York Post runs a lead editorial which tells Trump to make gun control Priority Number One, that’s not just a horse of a different color, it’s a different animal altogether and shouldn’t be dismissed out of hand.
The last time I looked, the two ideas which appear to have the best chance of winding up on the President’s desk are a ‘red flag’ law, which just about everyone seems to feel will make some bit of difference to controlling the carnage even though no doubt there will be the usual whining about giving the courts the ability to ‘steamroll’ the Bill of Rights.
The other band-aid to be put on the gun problem will probably be what is referred to as ‘universal background checks,’ which means more work for the FBI-NICS examiners in West Virginia, more complaining by the ATF about how they don’t have the resources to go after everyone who fails a background check now, never mind the many millions of people who will fail the check when every gun transfer has to first be approved.
Both of these bills, however, will help satisfy what has always been the guiding narrative of the gun-control movement, namely, keeping guns out of the ‘wrong hands.’ Now many of these ‘wrong hands’ belong to individuals who couldn’t pass a background check if their lives depended on it. Other ‘wrong hands’ are connected to the arms of people who wake up one morning and go wandering around town with an AR-15, telling everyone they bump into that last night the Martians really did land at Area 51. The latter bunch will be hauled into some courtroom and learn that in the interests of both public and personal safety, a red flag is waving and they can go home without their gun.
With all due respect to my friends in both the Gun-nut and Gun-control Nations who are considering whether to support these ideas, I just want to point out a little problem with this approach. According to the FBI, somewhere around 40% of all gun homicides are committed by individuals who can’t have legal access to a handgun of any kind for the simple reason that they have not yet attained the age of 21. Buy an AR? Yep. Buy a Glock? Federal law says no siree.
When Marvin Wolfgang studied homicides in Philadelphia committed in Philadelphia between 1948 and 1952, it turned out that roughly 20% of nearly 600 murders were committed by individuals under age 25. And only one-third of them ended someone else’s life by using a gun. Now we have a younger population doing more of the murders each year and two-thirds commit these fatal assaults by using a gun.
I’m not against either comprehensive background checks or red flags, not one bit. I just hope everyone realizes that the problems that may be solved by these laws are jjust the beginning of ending gun violence, not the end.
Back in April, 2016 when Trump the Shlump showed up at the NRA show to be anointed as the spear-carrier for America’s gun-nut contingent, I thought (and said) that the boys at the Fairfax home office were making a big mistake. America’s ‘first civil rights organization’ always endorsed the GOP Presidential candidate, but they waited until October to get the word out. By tying the organization to a guy who had never previously run for any political office of any kind, particularly this guy, Wayne-o and his buddies made a deal which bound them to someone over whom they would have no control.
Whatever else you want to say about him, Trump’s a through-and-through
New York guy. Which means that he’s about as connected to guns and gun culture
as the man in the moon. For all his bluster and bull about 2nd-Amendment ‘rights, he’ll say
anything to consolidate his alt-right base. And if it ever suited his political
fancy to throw the NRA leadership under a bus, get out the broom and
start sweeping the street because that’s exactly what happened last week.
Of course the minute bullets started flying around the Wal
Mart in El Paso and then inside a Dayton bar, Trump yanked out the old ‘thoughts
and prayers’ even though he thought the Dayton bar was actually located in
Toledo. Not that his putative challenger, Joe Biden, did any better, because
he got up and told everyone at a San Diego fundraiser how sorry he was about two
mass shootings that occurred in Houston and Michigan.
Meanwhile, by the middle of last week it began to
appear that we may have hit some kind of critical turning-point in the argument
about guns. One of the Fox News anchors, Shepard Smith, delivered an
impassioned commentary
which could have been written for him by Everytown, and by week’s end Trump was
openly promoting the idea of ‘intelligent’ background checks. He also made a
point of saying
that he had talked to both Pelosi and Schumer about going forward with a
background-check bill, those two names being at the top of the most-hated list
for Gun-nut Nation, no questions asked.
Trump may be President but he’s also a 2020
Presidential candidate, and in that respect his support of a background-check
bill makes him probably the 20th candidate to come up with some kind
of gun-control scheme. There’s Booker
with his national ID card, Biden wants a national gun buy-back,
Buttigieg wants an AR ban, Kamala wants dealers to be regulated more
strictly, blah, blah, blah and blah. But the biggest and best plan was just unveiled
by Pocahontas, except it’s not really a plan. It’s a pledge to reduce gun
violence by 80 percent, although she admits she doesn’t have the faintest idea
of how to make this actually work.
All of this Democratic yapping clearly reflects the
degree to which an energized and organized Gun-control Nation may have been an
important factor in turning
a number of red Congressional districts blue in 2018. And if anything, the public
response to California, Texas and Ohio may well presage an even stronger
Democratic result built around gun violence next year.
Except there’s one little problem, a problem named Donald Trump. Because when all is said and done, his quick pivot on gun control and the reaction of Gun-nut Nation to his new-found gun concerns reminds me of what happened when Nixon went to China in 1972. If you were a Congressional Democrat after 1949 and so much as quietly hinted that we couldn’t ignore one-quarter of the world’s population, it was Nixon who stood up and called you a ‘pinko stooge’ or worse. If gun control becomes a political lightning-rod for next year, Trump’s fervent support of gun-nuttery gives him all the protection he needs.
What’s the NRA going to do if Trump signs a background-check bill? Tell their membership to vote for some Socialist who will take away all their guns?
If there is one new gun law which everyone seems to
agree we should enact, it’s the law which would require a background check every
time that anyone transfers a gun. Right now, according to our friends
at Giffords, roughly half the American population resides in states where some
kind of background check beyond the initial over-the-counter check takes place.
But even in the states where some kind of additional background check occurs
after the gun has been sold for the first time, there’s no consistency and the
process varies from state to state.
As for
states which require no kind of background check when a gun owner sells or
transfers his gun to someone else, most of those states happen to be the same
states where a majority of the residents own guns. And don’t think for one minute that it’s only
a coincidence that states with lots of gun owners usually have fewer gun laws.
I have
no problem with universal background checks for guns if I thought for one
second that this procedure might result in less violence caused by guns. After
all, right now we Americans own somewhere between 260 and 350 million guns and
gun researchers have been telling us forever and ever Amen that we suffer from
an extraordinarily-high rate of gun violence, precisely because we have too
many guns floating around and they can easily move from ‘good’ to ‘bad’ hands.
So if we instituted universal background checks, so the argument goes, we
wouldn’t have less guns but at least they wouldn’t so easily end up in the wrong
hands.
This
sounds like a very logical and reasonable proposition, which is why Gun-control
Nation has gotten behind universal background checks (UBC) because the
process is, after all, reasonable, which happens to be a favorite gun-control
word. And UBC wouldn’t be a threat to 2nd Amendment ‘rights’
because everyone, even the nuttiest of the gun nuts agrees that only
law-abiding citizens should be able to own guns.
Mike the
Gun Guy doesn’t agree. Mike the Gun Guy™ actually believes that deciding whether
or not to institute UBC shouldn’t be considered in terms of
reasonableness or 2nd Amendment ‘rights’ at all. In fact, Mike the
Gun Guy™ (that’s right, it’s trademarked) would feel much more
sanguine about the whole background check issue if his friends in Gun-control
Nation would stop proclaiming the virtues of UBC and try to understand
what the term ‘universal’ as in Universal Background Checks really means.
What it
means is that a lot of time, energy, paperwork and money is going to be spent
making sure that a lot of guns which have absolutely nothing to do with gun
violence end up being regulated simply because such items meet the legal
definition of the word ‘gun.’ When our friends at The Tracepublished
a list of more than 9,000 guns that were confiscated by more than 1,000 police
agencies between 2010 and 2016, I ran the entire batch through a word search
using the words Remington, Winchester, Savage, Marlin, Browning and H&R to
see how many times these words came up.
These
six words happen to be the names of gun companies who together probably
manufactured and sold 100 million hunting rifles and shotguns over the past hundred
years; most of those guns, believe it or not, are still in private hands. Know
how many times these words appeared in the list of more than 9,000 ‘crime’
guns? Exactly six times and in every,
single case, those guns were confiscated because the owner didn’t have a gun
license – that was the big, serious crime.
If we believe that background checks will reduce gun violence, why do most background checks involve guns that aren’t connected to gun violence? Sorry, but the idea that I have to drive forty miles round trip to a gun shop to run a background check on my son before I give him my old, single-shot Sears Roebuck bird gun just doesn’t make any sense at all.
Now that all 125 Democrats who have decided to run against Sleazy Don in 2020 have announced their support of universal background checks (UBC), I think it’s finally time to ask what would happen to gun violence rates if everyone in America had to undergo a background check every time they either received or gave away a gun. After all, why bother to go through the whole hassle of a big legislative fight unless we can show that the UBC would make a difference, right? So here goes.
There are currently 11 states which require UBC: CA, CO, CT, DE, NV, NJ, NY, OR, RI, VT, WA. Together these states currently count a total population slightly under 95 million, of whom 57 million live in California and New York. Some of these states, like New York and New Jersey, have for a long time required UBC for handgun purchases, others just implemented UBC in the last several years. But if we take these states in the aggregate and compare gun-violence rates between 2014 and 2017 (the latest year for CDC data) we get a pretty representative picture of the impact of universal UBC in these 11 states.
The picture looks like this. In 2014, these states had an aggregate
gun-violence rate of 7.4; i.e., for every hundred thousand residents, there
were 7.4 intentional fatal gun injuries: homicide, suicide and individuals shot
by cops. In 2017, the rate was 7.8. The national rates were significantly higher
– 10.31 and 11.96. Obviously, the
increase in national gun-violence rates would have been higher if we only
looked at states that don’t have UCB.
Louisiana, for example, has jumped from 18.71 to 20.09. Alabama has gone up from 16.05 to 22.30. Alaska, 18.46 to 22.98. Montana, 16.47, 22.85. In states like Montana and Alaska, the increase is driven by gun suicides, in Alabama and Louisiana it’s homicide. One could therefore argue that while UBC has not driven down the gun-violence rates, perhaps it has kept the increase from being larger than it otherwise might be.
You can argue all you want one way or the other, but
folks, let me break it to you gently, okay?
Until and unless we develop a system that allows us to analyze not only
the geography of gun violence, but the circumstances which result in guns
getting into the hands of the 145,146 individuals who committed intentional
fatal gun injuries between 2014 and 2017, the correlation between gun violence
rates and presence or absence of UCB doesn’t explain anything at all.
We have endless studies which show that gun violence which occurs in UBC states results from guns brought into those states from other states where UBC doesn’t exist. But there is not one, single study which has been done or could be done which shows how those guns got from State A to State B. Are these guns stolen? Are these guns trafficked after a straw sale? We don’t know. We also have no idea how many guns would continue to float around even if UBC became law of the land.
Know why UBC is always promoted as the first, legislative response to gun violence if the 2020 election results give the blue team the upper hand? Because survey after survey indicates that all those meanies who own all those guns are also in favor of UBC. Maybe I’m just a little bit old fashioned, maybe my advocacy experiences reflect what happened during the Viet Nam war. But I didn’t believe then and I don’t believe now that advocacy should rest on what public opinion says. I always thought that advocacy should set the terms of debate, not be based on what the debaters say.
The only way we will make a significant response to gun
violence is to create a national gun registry so that we will be able to track
the ownership and use of every gun. Oh my God! We can’t do that – it’s a
violation of the 2nd Amendment!
Coming up shortly is a debate in the U.S. Senate about a
bill which passed through the House extending background checks to all
transfers of guns. At the same this issue wends its way through Congress,
another approach to reducing gun violence is going through the courts in the
form of the lawsuit against Remington brought by some of the parents of victims
killed at Sandy Hook.
These two initiatives represent different methods for making
us safe (or at least safer) from a type of behavior which kills and injures
more than 125,000 people every year. This
behavior which is referred to as gun violence because it occurs whenever
someone picks up a gun, aims it at themselves or someone else and goes – bang!
I happen to believe that the latter approach is a much
more effective method for dealing with this problem. My proof for that
statement lies in the fact that the gun-control method embodied in the DeSoto v. Remington case aligns itself with
the way in which other countries deal with gun violence, which is the reason
why other countries have gun-violence rates far below our own.
We are the only advanced society which has decided that
the most effective way to regulate a consumer product known as a gun is to
regulate the behavior of the consumer who owns the gun. Therefore, in order to
be a legal gun owner in the United States, you have to prove that you do not
fall into a particular behavioral category which prohibits owning or buying guns.
These categories are all listed on the 4473 background check form which is
filled out when someone buys a gun, but they apply equally as well to owning a
gun, no matter how that ownership status came about. The background check bill
currently before the Senate basically extends the certification of ‘good’
behavior to any way in which someone gets their hands on a gun. But like the
current system, it is still regulating how people behave with a particular
consumer product, not how the product is designed or sold.
The majority opinion in DeSoto v. Remington correctly understood that what is at issue in
this case is not the behavior of the shooter per se, but the conscious effort
by the manufacturer to advertise the product in a way that would attract
consumers who wanted to use this gun to inflict injuries to other human beings.
To quote from the decision: “The AR-15 and M16 are highly lethal weapons that are engineered to
deliver maximum carnage with extreme efficiency.” Which is hardly how guns
designed to be used for ‘sport’ can best be described.
On the other hand, as long as a
gun doesn’t fire in automatic mode, it can be bought and sold by anyone who
doesn’t have a behavioral history indicating that the person buying or owning the gun is at risk for using
the weapon in a violent way. Adam Lanza, who shot and killed himself and 27
other kids and adults in Newtown, used his mother’s rifle but if he had waited
a few months until he was 21, he could have walked into any gun shop in Connecticut
and purchased the same gun himself.
I’m not saying that extending
background checks to secondary sales won’t have an impact on whether or not
guns end up in the wrong hands. But as long as we continue to regulate this
consumer product by believing that purchase and ownership of products as
dangerous as an AR-15 require only meeting minimal standards for lawful
behavior, the number of such guns floating around in private hands will
continue to increase. And as the number of such guns goes up, the number used
to commit violent acts will also go up.
If a consumer product is dangerous because of the way it’s designed, either you change the design or the product can’t be sold. How do you make an AR-15 safer so that it can’t be used to mow down a classroom filled with kids? You can’t.
Prior to 1968, most adults in the United States could purchase a firearm without state interference. Guns were available in local retail stores, as well as mail-order catalogs, and as long as you hadn’t been convicted of a felony and you had the funds, there weren’t any questions asked.
Although many people hold a strong opinion for and against gun background checks, they’ve proven to be an integral part of the state’s gun control apparatus – and they don’t appear to be leaving anytime soon.
Since background checks are such a requirement for today’s gun enthusiasts, it’s important for gun owners (and those who may someday be gun owners) to understand everything they can, including how the current system works and how it came to be.
The History of Gun Background Checks in the U.S.
The history of background checks for gun purchases reaches back to the first restrictions placed on individuals trying to purchase firearms. Here in the U.S., this occured after the Civil War, when several southern states adopted “Black Codes,” which replaced the prior slave codes and worked to suppress the freedoms of black Americans. Among other restrictions, the Black Codes forbade African-Americans from owning firearms.
The Federal Firearms Act of 1938 began restricting the sales of firearms, requiring those in the business of selling firearms to purchase a Federal Firearms License (FFL) and maintain a list of persons who purchased firearms, including their name and address. The Firearms Act of 1938 also listed convicted felons as the first prohibited persons – who are not allowed, by law, to own, purchase, or possess firearms.
And then something happened that would forever change American history. Six days before Thanksgiving, on November 22, 1963, President John F. Kennedy was assassinated by Lee Harvey Oswald using a Mannlicher-Carcano rifle purchased from a mail-order catalog. The Kennedy assassination led to the Gun Control Act of 1968, which was specifically intended to keep “firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetence.”
Through the Gun Control Act of 1968, the federal government placed restrictions on the sale of firearms across state lines and expanded the prohibited persons who were not allowed to purchase or possess firearms. Under the new law, gun purchases became illegal for those who were:
Convicted of a non-business-related felony
Found to be mentally incompetent
Users of illegal substances
To determine this information, those who wished to purchase a firearm from an FFL had to complete a questionnaire of yes/no questions such as “Are you a convicted felon?” and “Are you a fugitive from justice?” Although these questions needed to be answered, they did not require verification from the gun seller.
In 1972, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was formed as a way to help control the illegal sales and use of firearms.
In March of 1981, the assassination attempt of President Ronald Reagan led to further gun legislation with the Brady Handgun Violence Prevention Act of 1993, which amended the Gun Control Act of 1968 to now require background checks for the purchase of firearms from a retailer. The Brady Act, as it’s known today, also led to the development of the National Instant Criminal Background Check System (NICS), which launched in 1998, and is the current law on background checks for gun purchases in the U.S.
The National Instant Criminal Background Check System
The National Instant Criminal Background Check System (NICS) was mandated by the Brady Handgun Violence Prevention Act of 1993, and was launched by the FBI on November 30, 1998. The NICS is used by FFLs to check the eligibility of those who wish to purchase firearms.
Located at the FBI’s Criminal Justice Information Services Division in Clarksburg, West Virginia, the NICS is currently used by 30 states and five districts, as well as the District of Columbia, to check the backgrounds of those who wish to purchase firearms. Those states that opt not to use the NICS have their own point of contact (POC) to complete background checks.
The NICS applies a person’s identifying characteristics, including name and date of birth, to its own index, as well as the National Crime Information Center (NCIC) database and the Interstate Identification Index. These systems compare the intended purchaser’s demographic information against the national databases to see if they match someone deemed a prohibited person. Prohibited persons include those who are or were:
Convicted of a crime punishable by imprisonment for a year or more
Fugitives from justice
A user of or addicted to a controlled substance
Adjudicated as a mental defective or been committed to a mental health institution
Illegal aliens
Aliens admitted to the U.S. under a nonimmigrant visa
Discharged from the U.S. Armed Forces under dishonorable conditions
Renounced their citizenship to the U.S.
Subject to a court order that restrains their interactions with an intimate partner or child
Convicted of domestic violence
Since its conception, NICS has completed over 300 million background checks and has issued more than 1.3 million denials. The NICS is available 17 hours a day, seven days a week, except for Christmas Day.
How Do Background Checks Work?
When you visit a gun store and attempt to purchase a firearm, you must complete a Firearm Transaction Record, or ATF Form 4473 – which requires the intended purchaser’s name, address, and birthdate. The form also requires a government-issued photo ID and asks questions regarding the individual’s appearance, including height and weight.
Once the form’s completed, the gun seller can either call the 1-800 number for NICS or use the online system to run the background check. In over 90 percent of the cases, the results are almost immediate, with the system either approving, delaying, or denying the purchase within minutes.
With an approval, the sale can immediately proceed as planned with you purchasing the firearm. If there is a delay, the NICS and FBI investigate the inquiry over the next three days. If the FFL does not hear anything within that time period or if a determination cannot be made, then the retailer can, but does not have to, continue with the firearm transfer. When this occurs, it’s often referred to as a “default proceed” sale.
When a denial is made, which occurs in only about 2 percent of background checks, the retailer is unable to sell or transfer the firearm to the individual in question. You must submit a request to the NICS to receive the reason for your denial, the most common of which is a history of a felony conviction.
If you believe you were given an erroneous denial, you can appeal the decision by completing a Voluntary Appeal File (VAF), which can be done online or by mailing your request to the FBI. Along with the VAF application, you will also need to be fingerprinted to move forward with the appeal process.
When is a Background Check Needed to Purchase a Gun?
A background check is necessary any time you purchase a gun from a retail provider, which is defined as someone conducting business in the sale of firearms. These sellers must have a Federal Firearms License (FFL) and are legally mandated to complete a background check for every firearm sold to a non-licensed individual.
It doesn’t matter if you purchase the firearm in a brick-and-mortar store, a gun show, online, or through a magazine – if the seller is a retailer provider (i.e. has an FFL), then the background check must occur.
When is a Background Check Not Needed to Purchase a Gun?
Under federal law, any adult can sell a personally owned firearm to another adult in the same state as long as you know, to the best of your ability, that they’re allowed to own a firearm.
Private sellers aren’t required to ask for identification, they don’t have to complete any forms, nor keep any records of the transaction. What’s more, federal law does not mandate a background check to purchase a firearm from a private seller. This includes buying a gun from a relative, a neighbor, or a friend.
Although federal law does not demand a background check for the private sale of firearms, some states do require a background check.
If you inherit or are gifted a firearm, you don’t need a background check.
Do Gun Background Checks Differ By State?
Thirty states, five districts, and D.C. all rely solely on the NICS for gun background checks. The following 13 states use their own full point of contact (POC) data system for gun background checks and do not use the FBI’s system:
California
Colorado
Connecticut
Florida
Hawaii
Illinois
Nevada
New Jersey
Oregan
Pennsylvania
Tennessee
Utah
Virginia
Some states, namely Maryland, New Hampshire, Washington, and Wisconsin, use NICS for long guns, but a state program for background checks on handguns. Iowa, Nebraska, and North Carolina use NICS, but have a partial POC for background checks in relation to handgun permits.
Many of these states have added their own provisions to their background checks, on top of what federal law mandates. In most cases, they also include looking at state and local records to determine if the person in question should or should not be allowed to own a firearm.
Some states have implemented universal background checks via an FFL, even during a private gun sale. While Maryland and Pennsylvania require background checks for all handgun transfers, regardless of retail or private sale, the following states require a background check for all firearm transfers:
California
Colorado
Connecticut
Delaware
District of Columbia
Nevada
New Jersey
New York
Oregan
Rhode Island
Vermont
Washington
In addition, some states require permits to purchase firearms. Hawaii, Illinois, and Massachusetts require a permit for all gun purchases, while Iowa, Michigan, Nebraska, and North Carolina require a permit for purchasing a handgun. These permits often require their own background check as well.
It should be noted that although these laws exist in Nebraska, they’re not currently being enforced, but are expected to be by January of 2020.
But Isn’t There a Gun Show Loophole?
There is no gun show loophole when it comes to background checks for gun purchases. The law clearly states that if you purchase a firearm from a person with an FFL, a background check must occur. If you purchase a gun from a private seller, you don’t need a background check. These same two principles apply whether you’re at a gun show or not.
So if you purchase a firearm from a gun seller with an FFL at a gun show, you will need to complete Form 4473 and have a background check. Under federal law, if you purchase a gun from a private seller at a gun show, you don’t need to have a background check. Your state laws may differ.
Of the average 4,000 gun shows in the U.S. each year, it’s estimated that 50 to 75 percent of vendors have an FFL, and therefore require purchasers of firearms to complete background checks. But that doesn’t mean that 25 to 50 percent of vendors are private sellers of firearms – many of these are vendors that sell gun paraphernalia. Gun shows are filled with vendors who sell everything from t-shirts and ball caps to holsters and concealed carry gear, and it’s these sellers that make up the majority of the remaining non-licensed vendors.
Are there private gun sellers at gun shows? Absolutely. But the idea that criminals are flocking to gun shows to illegally purchase firearms is untrue. In a report by the Bureau of Justice Statistics, only 0.7 percent of convicted criminals purchased their firearms at gun shows.
Have Background Checks Stopped Gun Violence and Crimes?
The research on the effectiveness of background checks to stop gun violence shows conflicting evidence. In an October 2018 published studycompleted by U.S. Davis and Johns Hopkins Bloomberg School of Public Health, in the 10 years following California’s comprehensive background checks, the number of gun homicides and suicides were not impacted. In a similar study published in July of the same year, gun violence did not increase with the repeal of comprehensive background checks.
Yet other studies show that background checks do reduce violence. A 2015 study found that requiring Connecticut handgun owners to go through a background check led to a 40-percent decline in gun homicides and suicides over a 10-year period.
This contradicting research shows that the problem of criminals getting their hands on guns can’t be stopped by mere background checks. According to the Department of Justice Special Report on Firearm Violence, 77 percent of state prisoners associated with firearm crimes received their firearm through:
Theft
Black market
Drug dealer
On the street
Family or friends
Not one of these criminals would have been affected by background checks, universal or otherwise. After all, most criminals don’t feel obligated to use legal means to obtain their firearms since they’ve either broken laws previously or plan to do so.
Beyond theft and the black market, criminals also use straw purchases, which are illegal, to get their hands on firearms. Straw purchasers are people who can pass a background check and intentionally purchase firearms for criminals. The San Bernardino terrorists used a straw purchaser to get the firearms they used to kill 14 people in the 2015 mass shooting.
Background checks for gun purchases often become a talking point after these types of events, but those who partake in this terroristic activity often don’t have criminal histories that would flag a background check. For instance, the Virginia Tech madman legally purchased a gun at a Virginia-based FFL and passed his background check before using it to shoot fellow students.
And then there’s the fact that sometimes the background check system fails. NICS is not a 100-percent absolute system, and time has shown that gun background checks can only be as reliable as the records they contain. Devin Kelley, the Texas Church madman, was prohibited by law to own or purchase a firearm because of a domestic violence conviction while in the Air Force. Yet Kelley purchased four firearms between 2014 and 2017, completing Form 4473 and being approved each time by NICS.
In this case, the Air Force failed to report the court marshall to the FBI’s National Crime Information Center, which the NICS relies on for information. So, again, the system is only as good as the information it contains.
(It’s also worth pointing out that Kelley’s murderous rampage was stopped by a private citizen, a plumber named Stephen Willeford, who legally owned an AR-15. Kelley was shot in the leg and torso by Willeford, stopping him from murdering more people inside that church before the police could arrive.)
And whereas sometimes the system which gun background checks rely upon is incomplete, in other instances it produces false positives. In other words law-abiding citizens get incorrectly matched by NICS or their respective state-level POC data system with criminals who have similar names. And if that happens to you, then you could be denied your right to own a gun because of a bureaucratic error. Estimates from the Crime Prevention Research Center pointed to 93 percent of initial NICS denials turning out as false positives in 2009 with similar estimates in 2010. (The Obama administration quit reporting these statistics after 2010.) Yes, individuals can appeal this denial and restore their gun rights, but dealing with bureacracy can be an expensive hassle.
The myriad of issues with NICS is why the National Shooting Sports Foundation (NSSF), a trade association representing the firearms industry, launched FixNICS.org in 2013. It is also why the NSSF publishes a yearly ranking of the states based on the number of mental health records they provide relative to their population – to encourage the states to comply with existing federal law, and submit any and all records establishing an individual as a prohibited person to the FBI’s databases. Their goal is to improve the existing system for everyone so that gun background checks are more accurate and complete.
Whether you like them or not, background checks are here to stay for gun owners and gun purchasers – but they are not the saving grace that some make them out to be. Background checks for gun purchases can only do so much and are not the permanent solution to keeping guns out of the hands of criminals and keeping Americans safe from gun violence. More concerning is that they give the state an ever-growing list of private citizens who own guns, and such a list has historically been used for subsequent gun confiscation attempts.
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