Dumb or Dumber – Either Way Kelly Ayotte is Clueless About Background Checks

When the Manchin-Toomey bill went down to defeat, I wondered how certain Senators could say they supported background checks while, at the same time, voting against them.  At least the Senators who voted against the bill because they didn’t like background checks (ex. Rand Paul) were being consistent.  But saying yes on the one hand and no on the other?

English: Official portrait of US Senator Kelly...

English: Official portrait of US Senator Kelly AYotte. (Photo credit: Wikipedia)

 

A friend just forwarded to me a copy of the letter that Kelly Ayotte is sending out to people who have taken the trouble to ask her the same question.  And her response is that the NICS system is not working and until it’s fixed, she can’t support extending it to cover additional transactions.  Here’s her first proof that the NICS system is “broken.” She sasy:

“Even if the current background check system was expanded, it’s important to note that a May 2013 Department of Justice report found that less than one percent of state prison inmates who possessed a gun when they committed their offense obtained the firearm at a gun show, and only about 10 percent of state prison inmates obtained their firearm from a licensed firearm dealer. In many cases, criminals find alternate methods to obtain firearms. In fact, 40 percent of state prison inmates who possessed a gun when they committed their offense obtained their firearm from an illegal source such as through a drug deal, theft, or the black market, and that is why we need rigorous prosecution of gun-related crimes.”

Is Senator Ayotte actually saying that if 40% of all guns used in felonies cannot be tracked or controlled through background checks, that we shouldn’t go after the other 60%?  Is a United States Senator saying something quite that stupid? Hold on – it gets better. She also says that the whole NICS is a “broken system that the government is not fully enforcing.”  And she adds: “For example, in 2010, the Bureau of Alcohol, Tobacco and Firearms was referred 76,412 National Instant Criminal Background Check System (NICS) denials, about two-thirds of which were based on the applicant being a felon or fugitive from justice. Of those, charges were brought in only 44 cases – and resulted in just 13 successful prosecutions.”

This business about all the NICS denials that aren’t being prosecuted has been floating around the background checks debate and I’d give anything to find out who said it first. Because I’ve heard it repeated again and again and while it sounds like the system really isn’t working, I wouldn’t assume that there’s any problem at all.  For example, what does the phrase “fugitive from justice” really mean?  In Los Angeles, for example, there are more than one million outstanding bench warrants for such offenses as failing to pay a fine for jay-walking, or smoking, or God knows what else.  The number in New York City is about the same.  None of these warrants will ever be served and every one of these individuals is a “fugitive from justice.”  I’m not saying the system is perfect; there have been NICS denials in my shop and I know at least one instance in which the individual who was denied really shouldn’t have gotten a gun.

The truth is that Kelly Ayotte didn’t want to vote for expanded background checks because for the moment she’s a friend of the NRA.  She can’t come out and admit it, so she cloaks her vote in an appeal for ‘better enforcement’ of existing laws.  Oh well, I guess in politics you get what you vote for.  Maine voted for Kelly and Kelly voted for the NRA.

 

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Background Checks: Do They Make a Difference?

Until 1968, the Federal Government only regulated the sale of automatic weapons.  This changed after the assassinations of Kennedy and King, at which point the Feds got into the gun regulation business big time.  The Gun Control Act of 1968 prohibited mail-order gun purchases but more importantly, defined for the first time certain types of individuals who could not own or purchase a firearm. With a few additions and revisions, the reasons that prohibit individuals from owning firearms anywhere in the United States has not really changed since 1968.

The form used for background checks is known as the 4473.  Every gun that is transferred between a dealer and a consumer requires that the purchaser fill out the 4473 which is then used by the dealer to perform a background with the FBI.  In addition to personal identifiers (name, address, birth date, etc.,) the buyer must then answer a series of questions that, if answered in the affirmative, would prohibit transfer of the firearm, including such issues as felony indictments or convictions, restraining orders, domestic violence and so forth.

From 1968 until 1998 the background check form was filled out for all dealer transfers, but there was no actual check performed to validate the information. The forms were kept on file by each dealer and the ATF could inspect the forms but had no way of knowing whether, in fact, the information on each form was true or false.

In 1998, as part of the Brady Act, the FBI created the National Instant Criminal Background Check System, known as NICS, which aggregates state and federal criminal databases.  The law requires that every time a firearm is transferred between a federally-licensed dealer and a customer, the customer fills out the form and the dealer then calls the NICS phone center and gets approval for the transaction.  If the transaction is denied, the customer can appeal the decision, but of the 12,000 or so background checks that I have performed, I can count total denials on the fingers of two hands.

Most people who purchase guns from a dealer pass the background check which is why people who would fail the check tend to acquire their guns through private transactions which aren’t covered by the Brady Law.  But if the Senate and then the House had actually passed a bill that extended background checks to all gun transactions, would it make us any safer, as the proponents of universal background checks insist?

According to the NRA, background checks and gun violence have nothing to do with each other.  They point to the fact that Adam Lanza’s mother passed the background check when she purchased the rifle and the pistols that her son subsequently used to massacre 20 children and 6 adults in Sandy Hook. The Aurora theater shooter, had he been a better shot, would have killed more people than died during Lanza’s rampage, and he purchased all his guns after passing background checks.

The problem with the NRA position, of course, is that it sidesteps the issue of guns as a contributor to violence, regardless of whose hands, background-checked or not, are holding the gun.  “Guns don’t kill people,” says the NRA, “people kill people.”  But the truth is that in other countries where gun ownership is strictly controlled, there’s still plenty of serious crime, but many fewer homicides take place.  In fact, our serious crime rate is about even with countries like Germany and Denmark, but our homicide rate is three times higher than either  country, largely the result of guns being used in criminal attacks.

The proponents of expanded background checks, on the other hand, point to data from the FBI, which shows that each year more than 70,000 potential gun owners fail background checks, which represents a significant number of guns that do not fall into the wrong hands.  Except we don’t really know whether they fall into the wrong hands, because we have no idea how or when any guns actually fall into the wrong hands.

In 2010, approximately 3 million handguns (pistols and revolvers) came onto the U.S. market,  That same year, there were roughly 31,000 deaths caused by firearms (Yea, yea, I know, guns don’t kill people, people kill people….)  There were also somewhere around 80,000 woundings caused by firearms (Yea, yea, I know again….) So there were 110,000 incidents of gun violence.  Now let’s subtract the accidents (about 1,000 deaths and 15,000 woundings) and the suicides, both successful and not-so-succesful (20,000.)  We end up with 75,000 deaths and injuries where clearly a gun got into the “wrong” hands.

We also know that at least 85% of all killings and woundings from guns involved handguns. So if every single shooting that took place in 2010 was done with a gun that entered the market that same year (which, of course is absurd, but just follow my line of argument a little further) it would mean that less than 3% of all handguns acquired by Americans in 2010 were used in the commission of a crime.

Fact: Every gun that enters the US market goes through at least 3 separate transactions, all of which are both legal and documented as to the identity of seller and buyer.  This is true from the moment the gun leaves the factory or the importer until it is placed in the hands of the first consumer.  Despite the hue and cry of ‘gun trafficking’ and the existence of rogue dealers, the ATF is particularly diligent when it comes to monitoring Acquisition & Disposition records that track the movement of all guns.

Which brings us to the BIG QUESTION: At which point did the 75,000 guns that were involved in all gun felonies move from the legal to the illegal environment?  If we knew the answer to this question we could, at least in theory, begin to develop some mitigating strategies.  At this point we cannot.  And extending background checks to private transactions probably would have some, but not much impact on understanding this problem because once a gun moves into the prohibited environment, it’s not moving back into legal hands.

Most felony guns end up moving into an environment where they will be used illegally or inappropriately because at some point, a legal owner decides that it just doesn’t matter who ends up owning or using the gun.  This decision could be made by the first owner, or the person to whom he sold the gun or the owner after that.  But no amount of legal penalties surrounding the transfer of guns from one person to another will stop 3% of gun owners from having no concern about the disposition of their guns unless every gun owner becomes committed to a safe and secure disposition of their firearms