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
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.
Before everyone goes nuts and crazy about the amendment
that the sore-loser Republicans inserted into the background-check bill (H.R.
8) which yesterday cleared the House, I’m going to explain what the language
means and doesn’t mean. The problem is that what Jerry Nadler (D-NY) said
about the background-check process (“Well, first of all, if he fails a
background check because he’s illegally in the country, that means the system
knows he’s illegally in the country. It means they already know that — so
what’s the point of reporting him?”) isn’t really true. But what the GOP said about this stupid amendment
also isn’t true.
The amendment says that when
someone fails a background check because he/she is an undocumented immigrant,
that the Immigration and Customs Enforcement, our new Gestapo known as the ICE, has to be notified so that the
individual can be found, prosecuted and
charged with all sorts of things. I don’t believe, incidentally, that
the amendment contains a specific method for making all of that happen. In other words, after the FBI-NICS people fail to approve a
transaction, who picks up the phone and calls the ICE?
Here’s what happens when the
(hated or beloved – take your pick) background check occurs. The buyer of the gun fills out fields 1
through 10 on the form and gives name, address, date of birth, all the usual
identifiers. The buyer then gives a ‘yes’ or a ‘no’ to 9 questions
covering the various ‘prohibited’ categories (i.e., felon, fugitive, mental
‘defective,’ – I love that one – and so forth.) If the buyer says ‘yes’ to any
of those questions, the FBI denies
the sale. If the buyer says ‘no’ to any of those questions but the person’s
name turns up in one of the databases used by the FBI, the sale is also either prohibited or delayed (the notorious
3-day delay) until more information can be found.
You should know, by the way, that
neither the dealer nor the customer is told why a specific sale was denied or
delayed. The customer will be told if he decides to appeal the decision, the
dealer is left in the dark. And here comes the tricky part. The customer must
also affirm or deny that he/she is a citizen and produce some kind of
government ID to validate his/her current address. But there are currently 42
states which will issue a driver’s license to an
undocumented immigrant either because they want everyone who drives to have a
license, or because they have agreed to issue a license to anyone covered by
the DACA program, which enrolls ‘illegals’ up to age thirty-one.
So the guy who walks into a gun
shop, produces a driver’s license and says he’s a citizen is going to fly
through the background check process unless the FBI finds that he’s committed some kind of serious crime or is
listed in their database for some other disqualifying event. In other words,
the authors of that stupid amendment are simply grandstanding by inserting some
language about reporting ‘illegals’ to the
ICE when said individuals try to legally purchase a gun.
Pace Jerry Nadler, the only way that someone could fail a
background check because they are here illegally is if the individual actually admitted
their illegal status at the time they were filling out the background-check
form. And anyone doing that should be denied a gun simply because he’s beyond
If I were someone in the country illegally and wanted to get
my hands on a gun, I’m not going to get anywhere near the FBI when it comes to buying a gun or when it comes to anything
else. The FBI-NICS system has been
operating for more than 20 years and everyone who hasn’t been brain-dead since
1998 knows what the phrase ‘law-abiding’ means when it comes to buying or
owning a gun.
When it comes to gun violence, there are more important things to worry about than whether some GOP members of Congress want to score a few points with the anti-immigration gang.
Since I long ago gave up the idea that what I have to say about gun violence supports what my friends in Gun-control Nation want to hear, I’m going to spend today’s column taking some pot-shots at the single, most cherished goal of the gun violence prevention (GVP) movement, a.k.a., universal background checks. Let me make it clear again that I have never (read: never) raised the slightest objection to reducing this awful social stain known as gun violence through, among other strategies, adopting public policies which work. But let me also make it clear that just because some piece of research finds a theoretical link between a certain public policy and an alleged outcome, doesn’t mean that the research isn’t flawed.
That being said, it now turns out that Pelosi is telling the GVP that she intends to pass a ‘bold’ package of gun reforms right after the 116th Congress convenes. She said this at a moving memorial service held in St. Mark’s Church, marking the anniversary of the Sandy Hook tragedy, this event part of the month-long, national vigils against gun violence which you can support here.
The Numero Uno issue that Pelosi will doubtless try to pass is a law that would expand background checks beyond the initial point of sale. Before I get into the research used to justify this policy, we need to spend a bit of time understanding what such a law would require in terms of how the infrastructure which supports the background check process would have to change. You can promote any public policy you want, but unless you figure out and implement the logistics required to make the policy actually achieve its goals, I mean, what’s the point?
The theory behind universal background checks (UBC) is that if every gun transfer required the recipient to fill out a 4473 form, then register the transfer registered with FBI-NICS, this process would keep guns from falling into the hands of individuals who, under law, cannot own or have access to a gun. Fine.
In addition to qualifying the behavior of everyone who would be receiving a gun, the process would also make it easier for law enforcement to figure out how a gun that was used illegally or inappropriately ended up in the ‘wrong’ hands. Also fine.
Now here’s where the details meet the devil, okay? First, we have absolutely no idea, and my friends in the gun-research community have never attempted to figure this out with any degree of accuracy, how many guns are floating around in the ‘wrong hands’ right now. Nor do we have any verifiable data on how many guns are stolen each year, thus adding to the arsenal of guns in the ‘wrong hands.’ If my friends in public health would spend a little more time trying to figure that one out and a little less time pretending that regression analyses using synthetic controls really tells us how a new gun-control law impacts gun violence rates, maybe, just maybe we could craft some kind of policy that would diminish the illegal flow of guns.
Since Sandy Hook, three states – Oregon, Washington, Colorado – have instituted UBC. In 2014, these three states experienced a gun-violence rate of 11.37 (ICD-10 Codes: W32-W34, X72-X74, X93-X95, Y22-Y24.) In 2016, the rate was 11.88. Would anyone like to tell me the connection between UBC and a 4% gun-violence increase in these three states? We don’t have official 2017 data yet, but in Oregon they are referring to 2017 gun-violence rates representing a ‘modest spike.’ Great, just great.
If Speaker Pelosi and her GVP allies want to take a bold step forward in the fight against gun violence, I have a simple idea. Why don’t they just craft a bill that would strictly regulate the manufacture, purchase and ownership of highly-lethal handguns?
Oh! We can’t do that! It’s a violation of 2nd-Amendment ‘rights!’ In fact, it’s not a violation of any Constitutional ‘right’ at all. And yes, I will shortly be explaining this on my new Facebook page. Please stop by.
There used to be a joke in the gun business which went like this: “Want to make a million in the gun business? Start with two million.” Well, the FBI has just released the monthly NICS background-check numbers for September, and if things keep going the way they are going, the old joke will have to say that if you want to end up with a million bucks from guns, better start with three million, or even more.
Yea, yea, I know that FBI-NICS checks only count the initial sale of a gun, except that since most gun shops have an inventory which consists of at least 30% used guns, the background check number each month is a very good indicator of the overall trends within the gun industry. And lately, the trend has been going down.
September is a benchmark month for the gun business, because guns have never been able to compete with the beach. The only reason I kept my gun shop open in July and August is because the air-conditioning system worked better in my store than it did at home. But come Labor Day, those boring beach vacations are over, the kids are back in school, the leaves in northern states are just beginning to turn, and the hunting season is in the air. And don’t for one moment believe that hunting is no longer a key activity for driving gun sales. Even if a majority of gun owners claim that their primary reason for having a gun is self-defense, there is still something about Fall weather that translates into an interest in guns.
My point is that September gun sales always show a significant increase compared to the prior month. But if we compare September background checks this year to background checks in the month of September in previous years, the decline of the industry becomes very clear.
The NICS checks cover four separate categories: handguns, long guns, ‘other’ guns and ‘multiple’ sales. The first two categories are self-explanatory; ‘other’ guns refer usually refer to a receiver without a barrel, which is often how AR-15 rifle kits are sold – it’s still a gun because the receiver is serialized but it might be a handgun or a long gun, depending on what length barrel is then attached. Multiple guns means that the purchaser bought more than one gun; he could have bought two, he could have bought ten. In doing my numbers for this column, I’m assuming that ‘multiple’ equals two.
So here we go. Last month NICS background checks for gun transfers from dealers to customers totaled 869,636. A year earlier the total was 957,597. Ready? In 2016 the September number was 1,100,334. That’s a two-year drop of 20 percent. Want to find the last year that September NICS numbers were under 900,000? You have to go back to 2011, which was before Sandy Hook put gun control on Obama’s brain.
Given the fact that I’m a yellow-dog Democrat what I am now going to say may sound like it shouldn’t be said, but from the point of view of reducing gun violence, I’m not sure that what we need in November is a blue wave. Because the truth is that unless the Hill goes blue and Sleazy Don decides to shove Wayne Lapierre under a bus in order to make a deal with the Democrats for something he really needs, I’m willing to bet that the slide in gun sales over the last two years may well continue at least until the next Presidential year, by which time NICS numbers could be almost half of what was registered during the Obama regime.
And when all is really said and done, you can talk about armed, self-defense and terrorism and all that other stuff, but an industry that is selling half as many products as it did ten years earlier, is an industry that will begin to look like…remember something called pay phones?
Last week I posted a detailed paper on the Social Science Research Network in which I examined the arguments made by public health researchers and gun-control advocacy groups about the relationship between gun laws and gun violence; i.e., the stronger and more comprehensive the gun-control laws, the more gun violence goes down.
You can download and read the paper here, but I can save you some time by summarizing what I said. In brief, the point I made about the more gun laws = less gun violence is that the causal relationship between these two factors is vague, at best, and the way in which Brady and Giffords go about defining and judging the efficacy of different laws leaves some pretty big gaps.
The problem with trying to figure out whether any particular law will have any particular effect is that the only way to come up with a reasonably-accurate analysis is to compare the relevant behavior both before and after the law is passed. But even studies which compare before-and-after behavior on what would appear to be a simple issue like speed limits and accident rates, often cannot take into account all the myriad social factors which affect a certain type of behavior beyond the existence or non-existence of a certain law. And if we know one thing about the behavior which produces gun violence, or any kind of violence for that matter, the origins, incidence and reasons for this behavior are terribly complicated and not given to any kind of simple or single cause.
On the other hand, for the first time we finally can look at the effects of a major change in gun laws, not just in terms of whether the new law made any real difference in gun violence rates, but whether the legal change met the expectations and claims of the advocate community which pushed for the change. I am referring to requiring FBI-NICS background checks for all gun transfers, which is probably Gun-control Nation’s single, most cherished goal, particularly because it happens to be the gun law where even gun owners appear to be falling into line; a recent public health survey found that more than 80% of both gun owners and non-gun owners agreed that comprehensive FBI-NICS checks were a good thing.
According to Brady, only 7 states currently impose comprehensive background checks on all gun sales. But four of these states – Colorado, Delaware, New York, Washington – passed their laws after the unspeakable tragedy at Newtown-Sandy Hook. As of 2014, all four states required that any change in the ownership of any kind of gun had to be validated by the intervention of a gun dealer who would initiate a background check. None of these states had a comprehensive background check law prior to 2014.
And here are the results by state, gun-violence rate and two years prior and two years after passage of a comprehensive background check law:
Note that New York was the only state which showed a decline in gun violence after a comprehensive law was passed, but this anomaly is probably explained by the aggressive, anti-gun program of the New York City cops. In Erie County, which includes Buffalo, the 2013 gun-violence rate was 4.1, it then dipped in 2015 to 3.88, but in 2016 went back to 4.1.
In a recent study that attempted to differentiate the impact of comprehensive background checks (CBC), as opposed to CBC which also required specific licensing for each gun sale (permit to purchase or PTP), researchers found “no benefit of a CBC system without a PTP law.” But what if comprehensive background checks, rather than yielding no result, actually coincide with a significant increase in gun-violence rates? Oops! That’s not what gun-control laws are supposed to do. Not at all.
Until Trump stuck his fat rear end on the chair behind the President’s Oval Office desk, the gun industry could count on three things: (1). a mass shooting from time to time; (2). a whine from Obama about how something had to be done; (3). an upsurge in gun sales. The only one of those three events which has continued into the so-called ‘administration’ of Trump is the first one. But neither Las Vegas, Parkland or Santa Fe has moved the gun sales needle to the right. To the contrary, gun sales are not just down, they are staying down.
In May, total FBI-NICS checks were 1,983,346; the total for May 2017 was 1,898,840. Hey – that’s not so bad, right? Except for one little thing. The NICS phone bank isn’t just used for the over-the-counter transfer of guns from dealer to customer; it’s also used for license checks and re-checks, guns going in and out of pawn and private transactions between gun owners themselves. So the real number to watch each month is the percentage of monthly checks representing over-the-counter movement of guns, with the further caveat that as much as 40% of that number probably represents used guns.
Here: the bottom line: in May, for the first time since permit and license background checks were added to the monthly report (February 2016) the percentage of total checks for over-the-counter gun transfers dropped substantially below 50% of all calls to the FBI, and May-to-May transfer checks dropped from 926,516 to 841,583, down by roughly 10 percent. Now let’s assume that of those 840,000 checks, perhaps 40% covered guns that had previously been sold and were now going out of gun shops as used guns. Which means that the entire gun making industry moved less than 500,000 new guns into America’s private gun arsenal.
Now 500,000 guns isn’t exactly chopped liver, but when you consider that there are somewhere between 80 to 100-million gun owners throughout the United States, half a million guns isn’t such a big deal. And it’s certainly not a big enough deal to keep all those gun companies afloat who either started producing or expanded production during the heady days of the Obama regime. No wonder that Smith & Wesson’s stock has dropped from $30 to $12 dollars since the middle of 2016 and was actually down under $10 a share last month. Ruger is doing better – during the same time-period its stock price has shrunk by 25 percent. But Ruger stock is closely held; they haven’t done what Smith did, i.e., rename the company to something called ‘Outdoor Brands’ with a subsequent price drop of the stock by only 50 percent.
By the way, for all the hot air and nonsense about Americans arming themselves because they can’t trust their government to provide for the common defense, the percentage of handgun background checks as a percentage of all gun background checks sits month after month at 60 percent. Now you would think that between Dana Loesch telling women that they should all be armed to Sean Hannity pimping for the United States Concealed Carry Association, that handgun sales would be bucking the downward sales trend. The whole notion of marketing concealed-carry is beginning to smell a little bit like the Edsel, if you know what I mean.
The gun industry has always had a basic problem, namely, that unless you like the noise and excitement of pulling the trigger and the thing goes – bang! – there’s simply no reason to own a gun. And worse, the damn things don’t wear out. So how does a consumer industry grow its profits when nobody really needs what they make plus the product’s obsolescence is fifty years or more? And into the bargain, we now have those fresh-faced high school kids popping up all over the place and saying that guns just aren’t hip or cool.
I think my gun shop is ready to be turned into a mini-mart.
Every time rational and realistic folks try to expand background checks to secondary transfers or sales, the Congressional NRA Caucus jumps up and says,’before we change anything in the NICS system, we need to fix what currently exists.’ Which for a long time was convenient dodge to prevent any expansion of background checks at all. But after it came out that the Sutherland Springs shooter was able to legally buy guns because the Air Force never notifiedNICS that the guy served stockade-time for beating up his wife, the fix-NICS bandwagon has started rolling along, pushed in part by Senator Tom Cornyn, who happens to be one of the NRA’s best friends.
Now it appears that the sudden concern about fixing NICS on the part of the NRA congressional delegation has morphed itself into a bill that will also let every red-blooded American walk around from here to high heaven carrying a gun. I suspect this national concealed-carry will die a natural death when it reaches the Senate, ditto any change in NICS. But if and when some NICS fix actually takes place, I’m hoping that my friends in the gun violence prevention (GVP) community will put some pressure on Congress to fix not just who has to send data to the FBI call center, but how the ATF uses the NICS system as well. Because it really doesn’t matter how much data we stick into the NICS system if the regulatory agency which allegedly uses that data to deal with gun violence doesn’t do what it’s supposed to do.
For 50 years the ATF has been saying that their hands are ‘tied’ because they can only get information from the initial transfer of a gun. Which means that once a gun leaves the shop after the purchaser passes a NICS background check, the ATF can’t figure out what happened between the time the gun was first purchased and when it was picked up in a crime. And since the average time between the initial transfer and when a gun is picked up at a crime scene is more than 10 years (what the ATF calls Time To Crime or TTC) God knows who owned the gun or how it got from a gun shop to where it was used in the commission of a crime.
There’s only one little problem with this scenario – it’s not true. When the ATF says it can only look at the information which tells them who first bought the gun, they are simply lying, which means they know something to be true and consciously choose to say something else. Why is the ATF lying? Because if you walk into the average gun shop, you’ll discover that 30% to 40% of the inventory consists of used guns. I know a retail dealer whose shops is 10 miles from my shop. He only sells consignment guns; his entire inventory doesn’t cost him one red cent. Which means that every gun he sells has been sold over the counter at least one other time, and it’s not unusual for a gun to come in and out of a gun shop multiple times.
Here’s the point: every time a used gun comes back to a gun shop and is sold to someone else, the dealer creates two records of the gun’s in-and-out movement in documentation which is owned by the ATF. That’s right – I have to keep an up-to-date listing of each gun in my Acquisition and Disposition list, and when the gun is sold I also have to create a maintain the background check form known as the Form 4473. The ATF can come into my shop at any time without any notice at all and inspect every, single entry in the A&D book as well as every 4473 form.
Could the ATF ask me to look up the particulars on any gun whether I sold it once or multiple times? Of course they can but they don’t because, after all, why put everyone through the hassle of looking up a gun transaction when you’re not sure of when that transaction actually took place? The ATF knows the date when a gun was initially shipped from a wholesaler to me. But they don’t necessarily know when the first buyer of that gun brought it back or took it to another shop and sold it or traded it for a different gun.
The ATF can pat itself on the back all it wants about the great job the National Tracing Center performs in helping law enforcement agencies deal with crime. But the truth is they do a half-ass job at best and fixing NICS without fixing ATF is nothing other than closing the barn door after the animals have gotten out.
Want to start your day off with a good laugh? Take a look at Wayne-o LaPierre blasting off into outer space in 2016 with a video message about the FBI-NICS background check system which came out two years before last week’s Fix-NICS bill was introduced by Senators Chris Murphy (D-CT), a long-time ‘enemy’ of the 2nd Amendment and John Cornyn (R-TX), one of the NRA’s best friends.
Everyone loves this bill. The NRA and the NSSF jumped on board; ditto Gabby Giffords and Everytown – Moms. Well, almost everyone. The group which claims it’s the only group standing between freedom and fascism, a.k.a. Gun Owners of America, told its members to demand that we stop trying to ‘fix an unconstitutional system’ because background checks of any kind are an ‘infringement on 2nd-Amendment ‘rights.’
But back to Wayne-o patting himself on the back for being a champion of FBI-NICS. Ultimately the NRA had no choice but to support the Brady bill because the idea of an instant background check enjoyed wide public support back then, just as an extension of background checks to secondary transfers appears to enjoy the same degree of public support now. But as a detailed report from the Brady Campaign points out, the moment that the Brady bill became law, the NRA began attacking its constitutional validity even before the system went online.
So when Wayne-o states that the NRA has ‘fought for 20 years’ to put the records of persons adjudicated to be mentally incompetent into the NICS system, what he should have said is that America’s oldest civil-rights organization has fought to keep the FBI-NICS system as far away from being an effective tool for reducing gun violence as it can. But when you watch this video and the phrase ‘the truth about background checks’ flashes across the screen, you can be sure that ol’ Wayne is getting ready to blast off into outer space.
But now that Congress appears ready to do exactly what the NRA claims should have always been done, namely, to make sure that the data sent to NICS really includes the names of every individual whose background, under current law, does not allow them to own a gun, what should the boys from Fairfax be doing to prove their commitment to 2nd-Amendment ‘rights?’ Because if this bill gets a positive vote and the Trumpster signs it into law, the NRA’s rationale for not expanding background checks to secondary sales disappears.
I’m not saying that the process of widening background check procedures to go beyond over-the-counter sales would be a walk in the park or a day at the beach. But the good news is that the NRA has been forced to support the idea that only ‘law-abiding citizens’ should be able to own guns. And if NICS is fixed to everyone’s satisfaction in a way that really prevents the criminals, the drug abusers and the mentally ill from walking into a gun shop and buying a gun, the idea that private gun transfers requiring background checks is a violation of the 2nd Amendment wouldn’t pass muster in any court.
When all is said and done, the NRA’s opposition to background checks boils down to one, simple thing; namely, that government regulation of the gun industry is a bad and unnecessary thing. In that respect, the gun industry’s opposition to regulation is no different from every other industry – banks, financial services, energy, you-name-it – who want to lessen the regulatory burden because one way or another, regulations drive up costs.
The NRA, the 2nd-Amendment Foundation, Sean Hannity and every other pro-gun noisemaker can talk about gun ownership as a Constitutional ‘right’ all they want. But it’s simply a convenient catch-phrase for obscuring a basic truth. And that truth happens to be the unalterable fact that if someone aims a loaded gun at themselves or someone else and then pulls the trigger, the damage can be immense. And only government has the resources and the authority to prevent such acts from taking place.
The Mountain Shakes and Out Comes A Mouse ~ AESOP’S FABLES.
Is this how we should view the ‘FIX NICS’ bill introduced in the Senate today sponsored by Senators Murphy (D-CT) and John Cornyn (R-TX), the latter who’s also shepherding the national CCW-reciprocity bill through Congress and onto Trump’s Oval Office desk?
Or perhaps we should refer to this bill as ‘Better Late Than Never’ because it plugs some holes in a process which is only twenty-five years old.
Figures that the Wise Men and Women of the U.S. Senate would come up with something after the recent spate of mass shootings which seem to be breaking out with almost weekly regularity after almost a year’s peace and quiet following the inauguration of You-Know-Who. And by the way, don’t think for one second that John Cornyn didn’t get his marching orders from the folks he represents who work in Fairfax, VA even though he’s supposedly the senior senator from the Lone Star State. Because what the NRA doesn’t want their Faithful to know is that they have quietly supported laws which strip domestic abusers of their guns in Oregon, South Carolina, Wisconsin and several other states.
In short, what the Cornyn-Murphy bill creates is a process that will providing funding to states which develop and implement a better fail-safe system for sending relevant information to FBI-NICS, and also require the Justice Department to evaluate the extent to which every federal agency (read: Department of Defense), and state meets the compliance goals. It also creates a new program which (I quote from the Press Release which accompanied the bill makes sure that, “states have adequate resources and incentives to share all relevant information with NICS showing that a felon or domestic abuser is excluded from purchasing firearms under current law.”
The phrase, ‘under current law’ obviously refers to the questions which must be answered prior to a background check by everyone who walks into a gun store and buys a gun. If you reply in the affirmative to any of these questions about your legal background, you fall into what is called a ‘prohibited category’ and in theory, the FBI will find you in their database and the purchase or transfer will be denied. The whole point of the FIX-NICS law is to make sure that every jurisdiction sends forward all the information in their possession to keep the names of all ‘prohibited person’ accurate and up to date.
Generally speaking, you cannot get a gun if you are “under indictment or have ever been convicted in any court for a felony, or any other crime for which a judge could imprison you for more than one year. You also are a ‘prohibited person’ if you have been convicted of a misdemeanor crime of domestic violence. But here’s where things get tricky. The NICS approval goes through if you were convicted of a misdemeanor other than domestic violence punishable by ‘’two years or less.” And how many state felonies are plea bargained down to misdemeanors? Plenty.
The good news about this bill is that any time the word gets around Gun Land that the government is ‘cracking down,’ don’t ask me how, don’t ask me why, but people become more serious about complying with the law. I’m not saying that gun owners aren’t law-abiding. Of course they are. But if you live in state which doesn’t require a background check for a private gun sale, all of a sudden the number of such checks starts going up. If you have lots of guns lying around the house, maybe you buy a safe and start locking the bangers away.
The FIX-NICS won’t put the fear of God into anyone who wants to use a gun in an illegal or improper way. But it does bring government back into the issue of gun safety, and that is exactly where the government belongs.