Friday, July 25, 2014

Who Could Be Against Background Checks?

The last few years have been tragic ones in America. We have seen several massacres that have been the result of mentally ill or otherwise disturbed individuals who should not have had access to guns. Many people ask: “How can you be against background checks?” It’s a complex issue, so let’s look at it in depth.

The 2012 Aurora, CO theater murderer, who was mentally ill, legally obtained his firearms and passed a background check.[1] Same with the suspect in the Virginia Tech massacre. The Sandy Hook school shooter murdered his mother and stole her guns. A background check prevented none of these shootings. Outlawing me, a responsible citizen, concealed weapons permit holder, and former law enforcement official, from buying a pistol in the parking lot of a pizza restaurant (and I’ve done so) would do little to stem gun violence.

Many of us in the law abiding gun-owning community are against universal background checks. Gov. Sandoval rejected SB 221 in 2013 that would have required universal background checks among other measures. In his rejection statement, he quoted the Nevada Sheriffs’ and Chiefs’ Association: “The sections of SB 221 requiring mandatory background checks on private sales place an unreasonable burden on law-abiding citizens, with the potential to make them criminals. It would be unenforceable by law enforcement. It is our opinion that this bill would do little to keep firearms out of the hands of criminals.”[2] Criminals are such because they break the law; they will not obey a law that prevents them from what they intend to achieve, be it legal or illegal.

For those that don’t know it, here is how the background check process in Nevada works: once you have selected a gun for purchase, you fill out a BATFE form 4473 [3] and a phone call is made to the Nevada Point-of-Sale Firearms Program by the firearms dealer (rather than the federal National Instant Criminal Background Check System, or NICS). Excluding hold times, most law-abiding citizens are approved within a few (like 2-5 minutes) of calling. Approval is either granted, delayed (when further research is needed), or denied.[4] It costs $25 per check, unless one has a valid Nevada concealed firearms permit. NRS 202.254 [5] allows individuals to make the checks themselves, on a voluntary basis, though the actual procedure is not clear.

 President Obama stated that “as many as 40% of guns are purchased without a background check.”[6] John Lott debunks this notion here [7], stating that the number is closer to 10%, specifically by subtracting “guns that were bought, traded, borrowed, rented, issued as a requirement of the job, or won through raffles, 85 percent went through FFLs; just 15 percent were transferred without a background check. If you include these transfers either through FFLs or from family members, the remaining transfers falls to 11.5 percent.” He also details how the study where the statistic comes from was flawed. While those figures are outdated, surely 40% is not accurate even today.

So let’s look at the 10% (for the sake of argument) of guns that are sold in private party sales. Private gun sales to criminals is not the leading way they get their guns. Me buying grandpa’s old Colt at a garage sale is not the same as a drug dealer buying an Uzi from the back of a truck.

A ‘straw purchase’ is when a person who can legally possess a firearm, purchases a firearm on behalf of a person who cannot. A study “found that straw purchasing was the most common channel of illegal gun trafficking, accounting for almost one-half (46%) of all investigations, and associated with nearly 26,000 illegally trafficked firearms.”[8] “In one study, the ATF found that 50.9% of all illegal guns trafficked were originated from straw purchases, while only 14.2% came from unregulated private sales-roughly the same percentage of guns that were stolen.”[9]
            Guns bought legally from dealers are generally not the guns used in crimes. “ATF officials say that only about 8% of the nation's 124,000 retail gun dealers sell the majority of handguns that are used in crimes.”[10] This would probably be due, in part, to background checks and strong ethics of the dealers. This begs the question: shouldn't that support universal background checks?
 “Another large source of guns used in crimes are unlicensed street dealers who either get their guns through illegal transactions with licensed dealers, straw purchases, or from gun thefts. These illegal dealers turn around and sell these illegally on the street. An additional way criminals gain access to guns is family and friends, either through sales, theft or as gifts.”[11] *
Yet “illegal activity by those licensed to sell guns [...] is a huge source of crime guns and greatly surpasses the sale of guns stolen.” So if corrupt dealers don't abide by the system that America has placed its faith in, how would that same system expanded prevent a large segment of people with a lot less oversight and less to lose from engaging in illegal gun sales? Clearly, background checks didn’t prevent licensed dealers from abusing the system them are an integral part of.

So what are we preventing here? I am not arguing against in-store background checks; I think that since the majority of gun sales occur there, it’s good system for keeping honest people honest and making life more difficult for bad guys. I can pass a background check easily, and thanks to Nevada not having a waiting person and allowing me (as a concealed firearms permit holder) to skip the $25 fee, I don’t mind. I do mind when a useless background check system for face-to-face transfers that can’t be enforced is instituted.

The idea of private background checks is analogous to buying a car. Both guns and cars, if used improperly, can injure and kill innocent people. A background check for a private sale is a bit like requiring you to go to the DMV first to prove you have a valid license and make sure the car isn’t stolen. Who would agree to that? While guns are a bit different, a gun is still simply an inanimate object. It is the owner who chooses what to do with it, just as a drunk driver has the choice to get behind the wheel. No law has ever prevented a drunk, determined to drive, from getting behind the wheel. A law can only deter the honest and punish those who break it. I obey the law because I enjoy not being fined, imprisoned, and shamed.

So what does the background check accomplish when it stops a bad guy from buying a gun? In 2010, the FBI conducted 6 millions checks and referred about 1%, or 76,142 cases to the ATF for further investigation. 4,732 of these were referred to field offices for further investigation.[13]


4,184 cases were declined by the ATF field offices. Only 62 cases were referred to prosecution, with 13 leading to guilty pleas. 18 cases were declined by the prosecutor while the rest were either pending or pled out. So 44 cases led to (probable) punishment of some sort. 44 cases out of 4,732 with enough merit for an investigation and 44 cases out of 76,142 referrals.[14]

Why isn't the government prosecuting more people for trying to buy guns? Aren't there laws against attempting a crime? I think attempting to illegally possess a gun would count. Quite frankly, if we truly want to deter this kind of behavior, we should at least prosecute prohibited persons from trying to get a gun. We prohibit people from trying to get lots of illegal stuff. Ever see a prostitution sting?

And shouldn't law enforcement be concerned about prohibited persons trying to get guns? I say the fact they are trying to buy a gun needs to be investigated and followed-up on to see if they obtain one through other means. If it is truly a case of ignorance of the law, then we can move on, but most felons (47.4%)[15] of all denials know better, and the next category, restrained persons or domestic violence offenders probably shouldn't have guns either.

If my neighbor, a felon with a record for shooting his neighbors, tried to buy a gun, I’d be a little concerned, especially if we’ve been having a tiff over which side of the driveway the trashcans go on. I would hope his parole officer would show up a few times a month and do some searches.

So what are the benefits to no background checks for private sales? First off, why do I have to be treated like a bad guy? When I buy a car, no one suspects me of having a suspended license or that I’m buying a car for an alcoholic. Second, it adds an unnecessary hassle, as I pointed our earlier about having to go to the DMV before you bought a car privately. Third, what is it going to stop? Our worst massacres were caused by deranged killers who either obtained their weapons by passing background checks and

Criminals either get a straw purchaser to buy a gun or they steal them. Black market gun dealers and unscrupulous friends and relatives giving guns to felons, thieves, robbers, drug dealers, and gang members won’t bother with a background check. “Oh, sorry bro, you got that felony from when you beat up that girl behind the casino. I can’t sell this to you.” Laughable, right?

Now, what was the process that SB 221[16] sought to institute? Anyone except a concealed firearms permit holder would have to go through a background check. Surely a licensed dealer could do this, for the state fee, of course, any maybe a transfer fee of their own (as many dealers require for current out-of-state transfers). If I wanted to make sure that the kindly old man who wanted to buy my firearm was indeed allowed to possess one, how would I do it? Under current law, I’m not sure how. The NRS doesn’t tell you and neither does the state background check webpage. Google didn’t give me a quick answer the phone number is for dealers only. Am I supposed to send a letter to “The Central Repository” in Carson City and wait for a response? We live in the 21st Century; an instant check on a secure web portal or a phone call 24/7 would be the way to go, but I doubt anyone thought that far.

If we want to do something to reduce gun violence by getting guns out of the hands of bad guys, here’s what I suggest:
  • Prosecute prohibited persons who attempt to get guns; create new laws if necessary. Let the ignorant go and throw the book at those who knew better than to try.
  • Identify straw purchasers and prosecute them. Shut down dealers who knowingly permit straw purchases.
  • Fix the mental health reporting system so that the truly dangerous are institutionalized, forcibly if necessary. If violent or potentially dangerous mentally ill persons are on the streets, they are a danger to public safety and need to be taken away, just like we would quarantine a plague patient.
  • More good guys with guns. Only good can stop evil.

Universal background checks do little to stop criminals and potential psychopaths from getting guns. They make law-abiding citizens into potential criminals and unnecessarily complicate our lives. An unenforceable law is just a waste of paper. Universal background checks are just another feature in the ‘feel-good, do nothing’ of the moment. It’s another wave on the shore eroding our right to keep and bear arms.

*Relatives should know if their loved one is prohibited from possessing a firearm; if they don’t know their loved one well enough to know that, then they don’t know them well enough to entrust a firearm to them. The rates of relatives engaging in straw purchasers should be enough to debunk the idea that regulating family transfers would reduce gun violence, anymore than making it illegal for alcoholics to have access to their relative’s car keys would prevent DUIs.

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