I continue to be gobsmacked by events in Washington. The latest is the controversy over the requirement that people making private gun sales perform a background check on the buyer, just like all licensed gun sellers are required to do. This proposed law has the support of over 90% of the population, including an overwhelming percentage of Republicans and NRA members. It’s so popular, in fact, that NBC News is reporting that the NRA is willing to concede the point and not score the law against members of Congress who vote for it. Except, they have one condition. They don’t want there to be any requirement that the private gun seller keep any record that they performed the background check.
That might not be a problem as long as the government kept the record of the background check, but that possibility is already illegal under existing law, and no one is proposing to change it. The concern is that the government not be allowed to create a national gun registry that they could conceivably use in some dystopian future to round up and confiscate people’s firearms.
Now, all we need to do to see why this is an insane requirement that the NRA is insisting upon is to think about the purpose of the law. If you have a gun that you are thinking of selling to someone, doing a background check allows you to make sure that you aren’t giving the gun to a felon or someone considered dangerous. If the recipient of the gun has a clean record, you are obviously protected against any conceivable liability, but you also can have an easy mind about the sale. And, in the unlikely case that they fail the background check, you have the opportunity to do the right thing and look for another buyer. You can’t argue that the requirement to get a background check is a pain in the ass (although it often will be) because the NRA is conceding that you need to get a background check. You can’t argue that it will cause your name to be on record forever, because the government will still have to destroy the record. About the only legitimate objection I can come up with is that you will potentially be exposed to liability if the person you sold the gun to commits a crime and you can’t produce a record of running the background check. Anyone can lose some paperwork, but that’s an argument for the government maintaining a record that you complied with the law, not a reason to oppose the law in general.
So, what are we left with? You sell a gun to someone and they commit a crime with it. The police determine that you gave them the weapon and ask to see a record of your background check. You can’t produce it because either you didn’t carry it out, or because you misplaced the paperwork. The police ask the government for a record, but they can’t say whether one ever existed because they are required to destroy all records. No one can ever hold you accountable and no one can ever clear your name.
So, would such a law do any good at all?
I think it would, but barely. It would help by making law-abiding citizens more mindful about who they sell their guns to. It would reduce the universe of sellers for people who can’t pass a background check.
Why? Because the Republicans are right about one thing. Most criminals don’t submit themselves to background checks that they know or suspect they will fail. That’s what drives them away from licensed gun sellers in the first place. Insofar as private sellers comply with the law, criminals will be denied guns, at least for a time. Someone who is not eligiible to own a gun will have to worry that the seller will insist on running a background check, so they won’t even ask unless they trust the seller to join them in a crime.
The only problem is that it totally absolves the gun seller of any legal responsibility for that illegal gun sale. And that just doesn’t make sense.
What did you expect? A sane, rational discussion about the issue of universal gun checks? Not going to happen in DC. A lot of things make good sense that Washington won’t touch. Single Payer Health Care. Cuts to our bloated defense industry. Reinstating Glass-Steagal and breaking up the big banks. Hell, we’ve had the “Volker Rule” in place for – how long? – and still nothing has been done to implement it.
Washington has always been out of touch. As long as we have two parties that depend on campaign contributions from multi-national corporations and really obscenely rich people, things aren’t going to change much. Crazy is situation normal in DC because the powerful people who decide what is and what is not acceptable for debate are heavily invested in crazy. That’s how they get paid.
There is no rational person on earth who would think this is effective “regulation” of background checks. Which is why the NRA is proposing it as the “solution”.
First of all, a “record” that a background check occurred is not a “record” of gun ownership. The proposed sale may not have ultimately taken place for whatever reason. Second of all, the entire purpose of “regulation” is the creation and maintenance of records that the gub’mint can from time to time examine to determine if the regulated industry is in compliance. That doesn’t exist here, so there is no effective regulation.
Finally, the failure by a gun seller (licensed or not) to conduct the background check should be a crime, most likely a felony. The record would need to be maintained by the seller to demonstrate that they did not commit the crime of selling without a background check. That would be effective regulation, and not result in a centralized “registry” (as though there is any rational basis to oppose such a thing). That is the sort of thing a serious society would do if seeking to ensure that “background checks” were undertaken.
Of course, a serious people would not find themselves living in an ocean of 300 million privately hoarded weapons….and a serious people would puke at the sight of a raving lunatic like the NRA’s Wayne LaPierre.
Well, let’s be honest here.
Say you did the background check and then can’t prove it because you just can’t find the record? How are you protected?
The are ways to handle this that don’t lead to a gun registry. As you point out, running a background check doesn’t guarantee that a sale occurred. It could be enough for the government to keep a record that the seller (not the buyer) ran a background check.
If it doesn’t say who the check was on, it doesn’t lead to a gun registry possibility. But it shows the seller ran a check on that date. Of course, the seller could make three private sales in one day and only do a background check on someone clean. But, given the resistance to any regulation of private sales, we’re going to be crafting something that still relies on the law-abidingness of most people to be effective.
I went to a gun show once. Lot of crazy people there, and quite a few scary ones.
I’m not sure how that’s responsive to what I wrote, Steve, but my guess is that you are saying we can’t rely too much on the law-abidingness of your typical gun show seller (or buyer).
And if that’s what you meant, my response is that at long as the government can’t keep a record of sales or ownership, then whether or not we require the privates sellers to keep records, we’re still depending on most people to follow the law for this reform to have a real impact.
In the absence of a registry, it still takes gumshoes to trace a gun to its origin. People will still break the law. So, were looking for part deterrence, part voluntary compliance, either way. While agreeing that relying on voluntary compliance is insufficient, we can also agree that it is an improvement.
However, you take the deterrence away from a gun seller, and you’ve lowered the rate of compliance.
If selling you a gun is potentially a crime on my part, I am going to be scrupulous both in making a decision whether or not to sell it to you, but I am also going to be more scrupulous in my record-keeping. But if I can just claim that I did a background check and no one can prove that I didn’t, then were relying on me being a law-abiding person with some scruples. That will obviously be less effective.
I thought the whole point of the exercise was to place gun shows under the same legal regime as licensed dealers. If not, then why not? Are you telling me that the gub’mint doesn’t keep a record of the licensed dealer’s background request, and the licensed dealer doesn’t either?
I’m not in favor of passing essentially inadequate legislation simply to say “something” passed. Even if it might be a mild improvement. The goal of every bizness lobbyist is to pass legislation that is futile and ineffective in dealing with a problem. That shouldn’t be the goal of say, Patrick Leahy or Obama, especially with public approval for a meaningful background check bill at 85+% levels.
I think it best to refuse to buy into the Washington Crazy, even if it can be diagnosed.
I can’t give you an answer that I know to be 100% correct, but I’ll give a shot at answering your question.
I believe that licensed gun sellers keep a record of who they sold a gun to that can be traceable upon attainment of a warrant (or voluntarily) so that if a crime is committed with a gun, the cops can figure out who bought it, at least originally.
The government gets that information basically on a need-to-know basis, meaning that they have no list of law-abiding gun owners. Obviously, state and local laws differ dramatically about registration and the requirements.
As for background checks, licensed sellers must conduct them, but the federal government has to destroy the records after a period of time, so they can’t use the record to infer gun ownership and make up some comprehensive list.
Gun show sellers may be licensed or not, but it’s not a federal requirement.
And then there are private, non-licensed sales and gifts between individuals. Those sales are effectively the same as an unlicensed gun show seller’s sale, the difference being mainly that the individual sales are often between friends and family.
If I have any of this wrong, I am happy to be corrected.
If the NRA’s objections bring up the question “Why not have a registry of gun owners?”, then let’s open that can of worms. Let there be a cost to their raising that objection. Bullies are always cowards, at heart.
If I know what mechanic will help my car “pass” its smog test, a felon knows what seller will “perform” a background check”.
To my mind, if the much neglected first thirteen words of the 2nd Amendment mean anything at all, they would seem to require a registry of gun owners. We’re talking about a “well regulated militia” here, and of course Congress is given the power to call forth the militia in time of need. So how the fuck is Congress supposed to call forth the militia if they don’t know who the militia is?
some dystopian future to round up and confiscate people’s firearms
Are we back to pointing and laughing and right-winger’s black-helicopter conspiracy theories, instead of “standing with” them?
I hope so.
What does a “background check” entail? The devil is in the details. If we are talking about a full exhaustive criminal/medical background check that costs hundreds of dollars. Just call a detective agency and ask. If that is what’s required for each and every sale, then I’m not surprised that gun sellers object. It amounts to a multi-hundred dollar tax on gun sales.
Here in Illinois we have a FOID card (Firearm Owner Identification), similar to a driver’s license but there is no test, just some kind of background check that the Secretary of State does. It might be just an electronic FBI database check. I really don’t know. Gun sellers, including private parties AND at gun shows, are required to check for a valid FOID card. Probably, they should do an electronic or automated phone check too. I don’t know if that is required. I, personally, don’t have a problem with a national FOID card system with electronic database checks required for each sale. However, gun owners object because loudmouth idiots in the Daley administration as well as Daley himself have called for FOID registration as the first step to confiscation. Lisa Madigan, Attorney-General, threatened to make the database with names and addresses public, making the owners burglary targets. THAT’s why gun owners dig in their heels to otherwise sensible records and restrictions. I fear they are right (as well as Right) and the only possible stable states are confiscation or wide open unrestricted ownership. Neither side will compromise except as a strategic trick.
P.S.
I agree with Thom Hartmann that a reasonable safety knowledge test should be required for a FOID and a national registry establishment of titles and liability insurance required. But someone will want to use the registry for blind confiscation, so it won’t work.
Doesn’t matter. Everybody’s a “law-abiding American” until they’re not. I have yet to see evidence that remotely reasonable background check would prevent a significant number of murders and other gun-enabled major crimes. Make assault weapons and so forth available and they will be used for the purpose they were invented in the first place.
My thanks to Booman for explaining the current lay of the land on background checks. As Voice says, what this term is defined to be will be critical.
I’d just like to observe the differing approaches to “regulating” the providers of two constitutional rights—family planning MDs and gun sellers. It sure doesn’t seem like gub’mint can require very much from the priests who provide the nation’s holy hand guns.
Abortion docs, that’s another story…those we let state gub’mint drive out of business via regulation.
“some dystopian future to round up and confiscate people’s firearms”
Did your spellchecker fail you when you meant to type “utopian”?
Anyway, I continue to believe that the anti-massacre folks are barking up the wrong tree with this background check campaign. How many of the recent big gun massacres were committed by creatures that would have failed that check? Or got their guns from others who would have failed? Plus, on this one issue I have to agree with the NRA: this sets a precedent for even more intrusive “security” privacy violations by the government.
The background check is largely a political CYA red herring to distract from the only useful “reform”: ban all weapons except .22 rifles, .22 shotguns, and .22 six-shooter, as well as clips holding more than 6 rounds — Biden has it right on this one. And any ammo that’s more destructive then plain ol’ bullets. Double the minimum sentence for crimes involving guns. Make possession of an illegal weapon a prima facie major felony.