took our NRA friends at Fairfax less
than 24 hours to
respond to the opinion published by the Connecticut Supreme Court after the
Court deliberated Soto v. Bushmaster
for more than 15 months. And what the boys from Fairfax said is what is always
said by the alt-right when a legal decision goes the other way, namely, that it
was the product of an ‘activist’ court; ‘activist’ being a code-word for any
judicial opinion they don’t like.
reason Gun-nut Nation doesn’t like the decision is because it may start a trend
around the country where busybody tree-huggers and other liberal types who hate
guns will dig up some consumer-protection statute in their state which can be used
to take away from the gun industry its beloved federal protection from torts,
a.k.a. the Protection of Lawful Commerce in Arms Act, a.k.a. PLCAA.
This law exempts the gun industry from the kind of lawsuits that have
been plaguing the tobacco industry for years, namely, taking responsibility for
damages from their product even when the product is sold in a lawful way.
PLCAA was passed in 2005, the law
contained certain exemptions for state laws that gave consumers a basis for
legal redress if the product’s use created an injury or a financial loss. Connecticut
has such a law, known as the Connecticut Unfair Trade Practice Act (CUTPA), and it was this law which was
used by the Sandy Hook plaintiffs to ague their case. It was also this law that
the CT Supreme Court majority held to
be applicable while a minority of the justices said it was not. I’ll deal with
each in turn but first I have to mention a detail of the case that may prove
difficult for some to read.
the morning of December 12, 2012 a 20-year old named Adam Lanza woke up, took a
bolt-action, single shot rifle and shot his sleeping mother in the head. He
then took an AR-15 rifle with multiple, hi-capacity magazines, drove to the
Sandy Hook Elementary School and within five minutes killed 26 adults and
children, then pulled out a pistol and took his own life.
Lanza didn’t own the AR-15. His mother had purchased the gun a year earlier,
and at no time did she state that she had purchased the gun for him. This is
the reason that the case could not go forward under the doctrine of negligent
entrustment, because the plaintiffs would have been required to prove that the
actual purchaser of the product had used it in an unsafe manner, which was
obviously not the case.
At the same time, the CT Supreme Court majority held that the
case could proceed under CUTPA,
because that law “authorizes any person who has suffered an ascertainable
financial loss caused by an unfair trade practice to bring an action,” no
matter who committed the unfair act. The majority further found that the PLCAA law exempted CUTPA because even though
PLCAA exempted only laws which specifically referred to firearm commerce,
the CUTPA statute prohibited unfair
or deceptive advertising in any kind of commerce, which would supersede the specific
limitation found in PLCAA.
was the minority opinion which the NRA grasped like a veritable last straw? It
was the idea that since PLCCA only
covered state laws which contained specific reference to guns, that the CUTPA law couldn’t be used by the plaintiffs in this case. And if there
is any doubt about where the NRA stands
on this issue, they applauded the minority dissent because it would protect the
gun industry from – ready? – frivolous litigation, obviously a category which includes
the Sandy Hook case.
many people have to get killed by someone wielding an AR-15 before such an act would’nt
be considered frivolous? Only 17 people
were killed at Parkland, so I guess that one was even more frivolous an event
than what happened at Sandy Hook. Maybe we should set the bar at 50 dead bodies,
maybe 100, maybe more.
It took the Connecticut Supreme Court more than fifteen months to issue a ruling in the Sandy Hook case, but when the opinion was announced, it was a doozy. Not only did the Court reverse the Superior Court’s ruling and hold for the plaintiffs against the gun maker whose product was used to kill 26 adult and children at the Sandy Hook Elementary School, but the decision got right to the fundamental issue which the gun industry has been trying to wish out of existence for at least the last twenty years.
When gun makers realized that hunting was going the way of the dial telephone, they came up with a brilliant marketing plan to keep the factories humming, namely, the idea of guns as being essential for self-defense. Now the fact that most Americans never find themselves in a situation where they need protection from a criminal threat isn’t at issue here. What is at issue is that enough consumers believed this malarky to keep the gun industry from sliding into the red.
With the advent of terrorism, non-ending battle engagements in the Near East and a generalize fear that something like 9-11 might happen again, however, the whole notion of armed, self-defense was transmogrified into messaging which blurred the traditional boundary between civilian and military weapons, with the gun industry finding its strongest new market in something called ‘tactical’ guns.
Of course the gun industry also knew, particularly after the Heller decision in 2008, that they couldn’t push this move into military-style armaments too far, because Scalia specifically refused to grant 2nd-Amendment protection to what he referred to as ‘weapons of war.’ So the industry invented the idea that guns like the AR-15 weren’t military weapons; they were ‘modern sporting weapons,’ meaning that the word ‘sporting’ could be applied to any gun which fired in semi-automatic mode.
The CT Supreme Court decision is quite lengthy, primarily because it deals not only with the state laws covering consumer protection (CUTPA and negligent entrustment) but it also explains in detail why the gun industry in this instance cannot use the federal tort immunity law – PLCAA – to shield itself from legitimate damage claims. And on Page 12 of the opinion, the rubber meets the road with the following accurate and very strong text: “The AR-15 and M16 are highly lethal weapons that are engineered to deliver maximum carnage with extreme efficiency. Several features make these rifles especially well suited for combat and enable a shooter to inflict unparalleled carnage. Rapid semiautomatic fire ‘unleashes a torrent of bullets in a matter of seconds.’ The ability to accommodate large capacity magazines allows for prolonged assaults.”
Folks – the CT Supreme Court got it right. The AR-15 wasn’t designed to be a ‘sporting’ gun, unless you want to define ‘sport’ as the ability to kill 26 human beings in 4 minutes or less. And if a shooter can deliver that amount of lethal firepower in such a short period of time, it makes the idea of differentiating between full-auto and semi-automatic modes a stupid and sick joke.
What happened at Sandy Hook is that someone used a product that is too dangerous and too lethal for civilian sale. Because the product was used precisely in the way it was designed to be used – to kill as many human beings as possible in the briefest period of time. In all of this my great regret is that in order to force the gun industry to acknowledge the lethality of this product, beautiful and precious lives had to be lost.
Last week three ‘experts’ on gun violence – Morall,
Stewart, Webster – unanimously condemned the idea of creating a national gun
registry to help control guns. In fact, these same three individuals have also
supported comprehensive background checks (CBC),
which would eventually create a national gun registry whether these experts
know it or not.
Here’s how. Every firearm in a gun shop is listed in
the shop’s Acquisition & Disposition book, known as the A&D. When a gun
comes into a shop, the gun dealer makes an entry in the Acquisition side of the
A&D book which shows where the gun came from, along with the make, caliber
and serial number of the gun. When that gun leaves the shop because it’s been
sold, the dealer then fills in the Disposition side of the book, identifying
the new owner of that gun. Before the Disposition information is entered, a
4473 FBI-NICS background check form
is also filled out, and is linked numerically to the relevant entry in the
Why will they know it? The ATF owns every, single
collection of 4473 forms and every, single A&D book located in every gun
shop in the United States. If H.R. 8 becomes law, then over time the whereabouts
of every gun that has been transferred to anyone after the law goes into effect
will be known by the ATF.
In the ‘olden’ days, a.k.a. pre-internet days, gun
dealers kept their A&D book by hand. Now virtually every dealer maintains
his inventory on disc, and the agency encourages dealers to digitalize their
data because it makes it easier for the ATF agents to conduct an inspection
without having to stand there and read through every page of the A&D. Incidentally,
the idea that the ATF has been ‘handcuffed’
since 1998 because they can only do a trace of the initial sale of a gun
happens to be a big, fat lie. If someone walks out of a gun shop with a piece
and gives or sells it to someone else, obviously the movement of that gun from
one pair of hands to another won’t be known. But walk into any gun shop and you’ll
discover that upwards of 40% of the inventory consists of used guns.
that was originally sold by that shop may end up being re-sold multiple times
by that shop or other gun shops nearby. Every single one of those sales can be
traced by the ATF. Why don’t they do it? Because they’re lazy and dumb. The ATF still sends out trace requests to
dealers through manual fax. They haven’t heard of emails or online fax? Oh no, not those guys who are now complaining
that taking away regulating
tobacco is nothing more than a bunch of bureaucrats trying to protect their
saying that by creating a virtual network of all gun shops that we would then
have a national registry of guns in the strict sense of the word. What we would
have is the ability to do a much greater and more effective tracing process
which would only become even more effective if CBC at some point became law. Given the average age of the
gun-owning population and the continued weakness of sales, every year more gun owners
are being subtracted for natural reasons from the gun-owning population than
the number of new owners who appear. Which means that all the guns that are in
the hands of Gun-nut Nation would also end up requiring a CBC transfer and thus would become data that could be easily
accessed by the ATF.
including those three experts on last week’s Congressional panel who disavowed
a national gun registry know full well that the reason we have much higher
levels of gun violence than any other country in the OECD is because the government doesn’t know who owns the guns. I’m
suggesting there’s a very simple way to make a huge dent in this knowledge gap,
which would only take a modest degree of initiative that the ATF evidently lacks.
Last week The New York Times published a lengthy op-ed by an African-American historian, Tiya Miles, who from her secure academic perch known as Harvard University believes she has discovered a new breed of gun-owner, namely the gun owner who happens to be Black and holds strong, positive views about gun ownership and also about the NRA. Her discovery appears to have come about when she visited a home in the hoity-toity Boston neighborhood known as Beacon Hill (where Ted Kennedy had an apartment) which had once been a stop on the Underground Railroad and now sports a NRA window decal right next to the front door.
Professor Miles describes herself as being ‘anti-gun’
and a supporter of ‘strict gun laws.’ But after seeing an NRA logo on a house that is considered a monument to the history of
civil rights, she decided to dig deeper into the history as well as the current
situation covering Blacks and guns. Her review of how Blacks justified arming
themselves both before and after Emancipation is judicious and sound. On the
other hand, her understanding of how the present African-American community
relates to guns borders on the absurd. Frankly, if Professor Miles had
submitted the second half of her op-ed to me as a research paper in a graduate
course, she would have received a big, fat ‘F.’
To begin with, Miles bases most of her knowledge about the
current situation on an article published by NPR which is, pardon the pun, shot full of holes. This article,
which claims, according to Miles, that Black gun ownership has ‘surged,’ is
based wholly on a single interview with Philip Smith, who heads an organization
he founded called the National African American Gun Association. The NAAGA’s Facebook
page contains a video of the group’s 4th Anniversary meeting this
year which appears to have attracted somewhere between 10 and 15 folks. Smith
told Professor Miles that his organization has 75 chapters in 30 states, a
claim she repeats as if because he said it, then it must be true.
The op-ed’s vision of a burgeoning Black gun
constituency is bolstered by an interview with Sharon Ross, who claims to be
involved in a movement known as Afro-survivalism, which appears to be an
offshoot of the wacky, how-to-survive-the-end-of-the-world nonsense which Glenn
Beck used to promote on his television show by hawking freeze-dried foods and
other products that were essential to keeping us safe from whatever Armageddon
was about to erupt. Sales of all this crap were particularly brisk after Obama
was inaugurated in 2008.
Actually, if you really are worried about the imminent
collapse of Western civilization, you can purchase survival foods on Sharon
Ross’s website, along with survival tools, survival
medical supplies, survival this and survival that. What I really love is the disclaimer
on the website which evidently Professor Miles didn’t bother to read: “Sometimes companies pay me, either in cash
or free product, to write about them or their products. However, I only work
with companies I can stand behind.” Ross calls herself an Afrovivalist –
too bad the Khoi-Hottentot tribe in South Africa didn’t have Sharon around to
help them when they were basically wiped out in 1850 after they rebelled
against British rule.
If The New York Times is now publishing op-eds based on such an egregious mix of nonsense, self-promotion and outright lies, then either the newspaper has abandoned any concern for responsible journalism or, as I suspect, they are only guilty of the usual condescendingnoblesse oblige which characterizes mainstream media coverage about Black ownership of guns.
Every year somewhere around 40,000 or 50,000
African-Americans use a gun to shoot themselves or someone else. How come
Professor Miles didn’t bother to interview some of those folks, all of whom
would have told her that being Black and being armed was hardly a new state of
affairs? Oh, I forgot. When it comes to the so-called surge in Black gun
ownership, we’re only interested in legal guns – the others don’t count. Right
– they don’t count.
I have been connected to the gun business one way or
another for more than sixty years, and for the very first time I am seeing
something about the business that I have never seen before. What I am talking
about is the fact that the latest release of background-check data from the
FBI, the numbers for February, confirm that so far the sales slump which
followed the inauguration of Sleazebag Trump has continued well past the 2018
election which brought about an abrupt change in gun politics on Capitol Hill.
The very first thing that the new Democratic
majority did (or maybe it was the second thing) after the 116th
Congress convened on January 3rd was to pass H.R. 8, calling for
universal background checks on the transfer of all guns. This was followed at
the end of February with another bill extending the time for the FBI to
complete a background check from 3 up to 20 days, Now the fact that neither of
those bills will probably get through the Senate, and even if they do, will
probably languish unsigned on Sleazy Don’s desk doesn’t alter a new political
dynamic that has clearly emerged, namely, that gun control as a viable point of
political discussion has once again reared its ugly head.
Now you would think that these developments would do for
the gun industry what such developments have always done in the past, which is to say, provoke a mad rush
into gun stores to clean off the shelves before the dreaded government comes
along and gets rid of all the guns. And despite what the ‘experts’ told a
Congressional hearing last week (they weren’t under oath so they couldn’t be
accused of lying to Congress), if you implement universal background checks for
all gun transfers, sooner or later you wind up with total gun registration. And
we all know what happens when the government can identify everyone who owns a
So how come gun sales continue to slide into the
toilet, no matter how busy the gun-grabbers seem to be? At the end of August last year, Smith &
Wesson stock was selling for less than $10 a share. It closed at $13.60 the day
of the election, it’s now drifting back down to under ten bucks. Before all the
votes came in, the market was anticipating the possibility that the political
return of the tree-huggers would produce a new surge in buying guns. The market
has turned out to be wrong.
We need to wait another couple of months before
proclaiming the great de-coupling of fear and demand as the driver for the
purchase and ownership of guns. But if things keep going the way they are
currently going, from the perspective of America’s love affair with firearms, a
new age may have definitely dawned.
There’s a website out there which sells ammunition
delivered direct to your door. Right now they are advertising 500 rounds of the
best, 22LR ammo on the market for $16.99.
I remember when you couldn’t find any 22LR ammunition because of the
hoarding and over-consumption which occurred during the heady Obama days. The
ammo is now so cheap that they can’t even give it away. And nothing is a more
accurate barometer of the state of the gun market than the cost of 22LR.
The one thing we continue to get from various
public-opinion surveys is that the percentage of Americans who own guns hasn’t
really increased; it’s more likely that the average gun owner now owns more
guns. But at some point, even most of the die-hard gun nuts just can’t find the
space, or the money, or simply the interest to go out and buy another gun.
Remember when every kitchen had something called a Mixmaster? Maybe some day my
grandchildren will visit the Smithsonian and walk past an exhibition of
‘vintage’ guns. I can just hear one of them saying, “Didn’t Grandpa used to own
Perhaps the single most cherished myth floating around
Gun-nut Nation is the idea that gun registration has always led to gun
confiscation which then leaves citizens defenseless, allowing dictators like
Hitler and Stalin to impose tyrannical rule. It’s a myth usually referred to as
the ‘slippery slope,’ and it briefly appeared in last week’s Congressional hearing when Andy Harris (R-MD) asked the
panel whether they supported national gun registration, and all three
gun-control ‘experts’ said or mumbled ‘no.’ Had any of them – Morral, Stewart,
Webster – been honest enough to respond to Harris’ question without first
measuring their answers against what they believe is the politically-correct
point of view, a national audience might have learned that the ‘slippery-slope’
argument has no basis in history or truth at all. So much for how we can rely
on the practitioners of evidence-based gun research to align their advocacy
with the facts.
The slippery-slope fantasy was most recently in full
display when Alaska’s long-time Congressman, Don Young, told an audience last
year that the Holocaust happened because Hitler had disarmed the
Jews. You can’t really blame Young for saying something that dumb; after all,
the Republican Party briefly flirted with the idea in 2016 of running a Presidential candidate named Ben
Carson who said exactly the same thing.
If you think, by the way, that the murder of six
million ‘defenseless’ Jews was originally the handiwork of some nut-job,
far-Right conspiracy theorist like Alex Jones, think again. In fact, the
argument can be found in a detailed, scholarly work by Stephen Halbrook, an attorney who argues many 2nd-Amendment
cases for the NRA. In this book, Halbrook argues that the Nazi Regime used the gun-control laws
previously passed by the Weimar Government to identify and disarm domestic
‘enemies’ like Jews and Communists, thus making it easier to consolidate
fascism which led to both the Holocaust and World War II.
Granted, the Nazis made full use of gun-control lists
compiled by the Weimar Government after they took power in 1933. But what
prompted the Weimar Government to institute a gun-control system in the first
place were threats against the government’s authority posed by widespread
political agitation from the Left, largely the handiwork of Germany’s Communist
Party, which happened to enroll substantial numbers of Jews.
Where Holbrook’s argument falls apart and the myth of
an ‘armed citizenry’ as representing the first bulwark of protection against
tyranny collapses as well, lies in the fact that the Weimar Government made no
effort to disarm the Nazi Party’s street militia, known as the SA, which Hitler formed in 1921. Over
the next 12 years, the SA became
increasingly violent in its attacks on opponents. By 1931, its 400,000 members,
mostly otherwise unemployed street thugs, were engaged in armed battles with
government authorities, as well as committing physical assaults on political
opponents and Jews.
The point is that the SA armed itself not as a defense against tyranny, but as part of
the Nazi strategy designed to create widespread distrust and anger against a
democratic state. The disarming of the Left after 1933 wasn’t a slippery-slope
at all. The Nazis imposed a military dictatorship with the support of the army
and the help of a trained, armed and organized citizen’s militia known as the SA.
Funny, but the only time the NRA and its apologists like Holbrook get concerned about protecting
America from government tyranny is when the government happens to be in the
hands of the gun-grabbing, tree-hugging liberals who most recently staged a coup d’état and took over what had previously
been a bastion of freedom, a.k.a. the House of Representatives, on November 6,
2018. And worse, now they are trying to extend their coup by running a ‘legally-elected’ President out of town.
The only thing which will stop this mad power-grab are
the patriots who stand fast with their God-given AR-15s to protect us from the
tyrannical, liberal elite. They did it at Lexington and Concord, they can do it
To paraphrase Jonathan Swift who was paraphrasing
either a Greek or Persian proverb, so the mountain shook and out came a mouse.
Which is the only way I can describe the Congressional hearing in DC yesterday
covering gun-research funding for the CDC. The House Appropriations Committee
(actually its subcommittee) heard testimony from four witnesses – Andrew Morral
from RAND; Ronald Stewart from the Trauma Committee of the American College of
Surgeons; Daniel Webster, who runs the gun research program at Johns Hopkins;
and the hated John Lott who, on occasion, is allowed to show up at
public-policy meetings to represent the ‘other side.’
rather long-winded remarks by Rosa DeLauro (D-CT) who chaired the hearing and
some less-winded remarks by the Ranking Member Tom Cole (R-OK) each of the
panelists were given 5 minutes to make an initial statement. I listened very
closely to these comments, but by end of the 15 minutes taken by Morral,
Stewart and Webster, I found myself having difficulty staying awake. It wasn’t
only that they didn’t really explain the connection between the lack of CDC
funding and the persistence of gun violence over the past twenty years
(although to Webster’s credit, I think he was about to offer such an
explanation when his time expired and he was cut off) but they delivered their
remarks in a manner which made them all sound somewhat bored and almost reluctant
to have shown up.
On the other hand, when John Lott delivered his opening
remarks, whether or not you would agree with anything he said, at least he was
animated and sounded excited about the issues that were going to be discussed.
You would think that the panelists who were testifying in favor of resuming the
CDC funding would have gone out of their way to make the Committee feel that
this hearing marked a very important day. Frankly, I’m surprised I didn’t see
Webster, Morral or Stewart stifling yawns.
Near the end of the hearing, the mouse truly emerged
from the mountain when the panelists were asked to list priorities for gun-violence
research. Morral wanted more research to determine who was right and who was
wrong about such hot-button issues as open carry, gun-free zones and stand your
ground. That’s a biggie. Stewart knew that gun violence was caused by
‘hopelessness’ and wanted more research on how to change hopelessness into hope.
A very clear agenda, I must say. Webster believed that more work needed to be
done to identify ‘bad’ gun dealers although he failed to mention that most
felons get their guns from sources other than retail stores.
Lott then actually stated a fact. It was the only fact
mentioned by any of the ‘experts’ on the panel. He said that 50% of all
homicides occurred in 2% of American counties and were connected to the drug-selling
gangs which operate in those high-violence zones. He suggested that more
research was needed on ways to de-incentivize people who commit gun crimes
while selling drugs – the one, specific strategy for reducing gun violence that
was mentioned during the entire event.
At one point, things actually got interesting when Andy
Harris (R-MD) asked the three proponents of more research dollars whether or
not they supported a national registry of
guns. Morral shlumped around in his chair and tried to beg off entirely, stating
that he was just a ‘social scientist;’ Stewart said he was against it even
though he heads a medical organization which has come out explicitly for just
such an idea; Webster dithered a bit and then decided that he also should
respond with a ‘no,’ although he has been gung-ho for comprehensive background
checks which would eventually create a national list of everyone who owns a gun.
Why do gun-control researchers and advocates like
Morral, Stewart and Webster kid themselves into believing that anyone on the
pro-gun side would ever think they have any interest in protecting gun ‘rights?’
If those guys are really interested in finding ‘non-partisan’ solutions to gun violence,
it’s time to man up and admit that they don’t like guns.
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
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:
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:
District of Columbia
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:
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.
happened? New York City was supposed to be a very safe place. But yesterday the Mayor and his Chief of
that homicides in the city during January and February had jumped by almost 30
percent over the same months in 2017, and if this murder activity continues at
the current pace, the Big Apple will once again be known as a city where the
streets aren’t so safe.
What caught my eye about this situation, however, was
the geography of where those murders took place. Most of them were in neighborhoods that have
always been centers of poverty an violence, places like Upper Manhattan, Bed-Stuy
(Do or Die) and Brownsville in Brooklyn and Jamaica in Queens. But one other
neighborhood jumped out at me, which was a neighborhood known as Parkchester
which is in the northeast corner of The Bronx.
I attended high school in Manhattan from 1958 to 1962,
and I was a student at one of those specialized schools – High School of Music
and Art – which drew kids from throughout the city. Several of my friends lived
in Parkchester and I often visited them in their homes. I thought that
Parkchester was a public housing project (it certainly looked like one) but in
fact it was a private apartment development built in 1939-40 by Metropolitan
Life. It was also racially segregated when it first opened its doors, which I
guess is the reason why I never recall seeing a person of color when I walked
to the apartment of one of my high school chums.
According to the 2010 census, Parkchester’s population is now
at least 75% Hispanic and Black. And given the spike in murders, I suspect that
the demographics of the community have steadily gone downhill. What this means is that possibly the
geography of what we refer to as ‘underserved’ urban neighborhoods is changing
in New York or in some areas getting worse.
What’s DeBlasio’s plans for keeping violence under
control? The 43rd precinct in
Parkchester will get some more men, there will be a greater presence of the
CeaseFire street monitors to intervene in gang disputes and here’s the one I really
like, increased efforts to get guns out of the hands of domestic
abusers. – that’s a direct quote.
Maybe these efforts
will make a difference, maybe they won’t. But if the Parkchester complex is beginning
to attract the kinds of folks who put a dent into someone’s head with a baseball bat or a hole
in their head with a gun, we may be looking at a more general problem, namely,
the degree to which violent crime seems to go up as socio-economic conditions
in a neighborhood go down.
Next week I’m going to review a new book, An American Summer by Alex Kotlowitz,
which is a series of first-person narratives from residents of Chicago’s most violent
neighborhoods, in which these folks talk in graphic and chilling terms about
the violence they see all around them which is often violence caused by guns.
This book is a clear departure from most of the social science that explores
urban violence because it doesn’t attempt to present a solution to the problem,
it simply gives the reader feeling of what
life inn these brutal streets is all about.
Over the last several years, there have been any number
of projects mounted by organizations trying to reduce gun violence in which the
survivors of shootings tell what happened to a family member who was a victim.
You can listen to a collection of these stories collected by
our friends at The Trace here.
The news out of Parkchester, however, is a reminder that you just can’t reduce something as complicated as violence, particularly gun violence, to the usual data on income, housing, economic opportunity, all the issues which are always thrown up to explain why some people feel the need to grab a gun and let it rip. We really have no idea why the streets around Parkchester have become unsafe, and I’m not sure we even know how to figure it out.
Last week I received an email from an outfit called
Outdoor Survivor offering a free book, The
Firearms Survival Guide. The book is
all about how to ‘protect’ my 2nd-Amendment ‘rights’. It’s free. Why
not grab one, right?
The moment I clicked the ‘buy’ button, I was then taken
to another screen where I was given an amazing opportunity to grab the best
tactical knife ever made, complete with a spring-assisted opening latch and
German stainless steel. This beauty
normally retails for $99.99 but just today, just for a few hours more, I could
scoff it up for $19.95. I did.
Which took me immediately to another screen and here I
was given a fantastic, remarkable chance to buy a tactical, self-defense pen
and LED flashlight which can be used to break open a window if I need a quick
escape from my home. This amazing product also comes with a multi-tool for
everyday use and for close-quarters combat work. And all of these features for
the incredibly low price of $29.95 which I grabbed with the click of my mouse
because I’ll be visiting stepson next week and should bring a gift.
And now I found myself looking at another screen with a
picture of the four-in-one tactical backpack which holds – ready? – a hydration
kit for those desert treks, a compass which is guaranteed to be water-resistant
up to 100 yards deep, a digging tool for making sure I can fit into my foxhole
when that enemy ordnance whizzes overhead and an emergency rescue blanket for
covering me up after I’m wounded by the enemy assault. I’m not sure about the
need for the blanket but hey, there’s always room for it in the car when we
need something to sit on at the beach.
The tactical backpack retails for a hundred bucks or
so, but if I buy it today there’s a one-shot offer of $59.95 and putting it
together with the gun survival guide, the tactical knife, and the flashlight with
the LED gets me free shipping, unless I want everything rushed overnight. In
that case, I just need to add $24.95 to the order which means that once they
charge my credit card $134.80, I’ll have this entire pile of crap sitting on my
front porch tomorrow – oh…my… God, I can’t wait.
Now what do you think the odds are that I will ever
even remotely need any of this stuff I just bought because I’ll find myself in
a tactical situation where having this gear will make any difference at
all? The odds are about as great as the
odds that I will lose the 20 pounds that my internist has been telling me to
lose for the last – uhhhh – twenty years.
Yea, that’s about right.
Note that this entire sales promotion kicked off with a
book whose title contained the two magic words – ‘firearms’ and ‘survival.’
Note that I will ever need any of these items like I’ll need a hole in my head.
But the reason I’m on the email list rented by this marketing company is because
at some point or another the internet found out that I both like and therefore
own guns. Maybe they got my name from the NRA
or maybe from some other marketing group which sold me some other piece of
gun-related junk that I never used.
The truth is that there’s no necessary reason to buy or
own any gun-related products at all, just as there’s no necessary reason to buy
or own a gun. I just happen, God knows
why, to like guns. And what I don’t think my many friends in Gun-control Nation
understand is, that all the heated rhetoric about ‘freedom’ and ‘rights’ and ‘self-defense’
to the contrary, most people who own guns just happen to like owning guns.
If I didn’t like to eat, I could easily shed those twenty pounds. If I didn’t like guns, I wouldn’t give one rat’s damn about my 2nd-Amendment ‘rights.’ Get it?