Sunday, March 29, 2015

Background Checks Lead to Registration; a California Case Study

Background checks for firearm purchases and gun registration are inextricably tied. Enforcement of ‘universal’ background checks are virtually impossible without registration, which is often accomplished by reporting the background check record/sales paperwork. By incremental legislation, background checks lead to registration and California is a prime example.

Registration there is not through gun owner’s voluntary or compulsory registration of their owned weapons, but by recording sales/transfers. Their method is to report the Dealers’ Record of Sale (DROS), which is similar to the federal ATF form 4473. California has had a registry of handgun sales since 1917 in this manner, upgraded to all firearm sales or transfers in 2014. Private-party gun sales in California died in 1991, when all gun sales or transfers were required to go through a dealer, as universal background checks propose to do.

‘Universal background checks’ is caging dealer-only sales/transfers in agreeable language, just as California technically doesn’t register guns; it simply records the sales and transfers of all guns. The universal background check bills and initiatives sweeping through the states are less about keeping guns from criminals than they are forcing gun transactions to go through dealers. Originally, background checks may have been an honest crime reduction measure, but in today’s world they are the first step towards a framework for registration.

There are three main ways to register guns: sales/transfer reporting, self-reporting, and mandatory total registration. Self-reporting puts the burden on the owner/purchaser to register the weapon upon acquisition or importation to the jurisdiction (Clark County's 'blue card' handgun registration). Mandatory total registration required all sales/transfers to be reported, along with guns brought into the jurisdiction, and all existing owned guns. Except for the latter system, guns that are grandfathered or exempt are not registered.

The sale/transfer reporting registration system is the most insidious, because it masquerades as sale reporting, not registration, and gun owners may feel safe about their existing collection because they are not required to register those weapons, even though those weapons cannot legally change hands without their transfer/sale being reported and thus registered.

Summary of California’s History

California has a gun registration system that is built upon records of the sale or transfer of firearms. The state enacted its first registration law in 1917 that required dealers to record and report handgun sales. In 1923, the law was amended to include a one-day waiting period that available evidence suggests was to enable law enforcement to review sales records and potentially halt a gun sale to a prohibited person. In 1991, private gun sales were banned in California, requiring that all sales or transfers between persons be made through a dealer, who would conduct a background check and record the sale/transfer if the gun were a handgun. In 2014, long-gun retail sale records were required to be reported to the state, this creating a long-gun registry.


A sale/transfer based gun registration system is based upon firearm sale or transfer records being reported to the state. It is enforced by requiring that all firearm sales be conducted through a licensed dealer who in turn reports the sale to the authorities. If private sales are banned by forcing the parties to conduct the sale/transfer through a dealer, all the government must do is collect the records to create its registry.

The ‘universal background check’ initiative in Nevada is not about background checks; they are about requiring all sales to go through dealers so that subsequent legislation or initiatives require dealers to report sales to the government. Couching the ban of private sales in terms of ‘background checks’ to limit criminal access to guns makes the legislation palatable to the public as they do not realize the actual intent or its consequences.

A legislative or false grassroots (Astroturf) push to a sale/transfer recording requirement, just like this false background check push, could easily create a firearm registry just like California in other states. Any gun that legally changed hands would be indirectly registered.

A gun registry built on sales/transfer records is by nature incomplete; it cannot account for existing guns that are not required to be registered until they change hands. Given the extreme American antagonism to registering owned guns, sales/transaction registration is the only feasible method available at this time that would not provoke widespread insurrection and non-compliance.

California Case Study

To look at how California gradually gained its gun registry, we will take a look at its history. The gun control supporters of the early 20th Century were no different than the ones today, except their political ancestors were less overt about their disdain of an armed citizenry.

A concealed weapon act of 1917 was where California started down its hodgepodge path to gun registration. It was strengthened in 1923 with a combination of three bills in the legislature.
The California Concealed Weapon Act of 1923 and amended again in 1925. Original sources (including the scans, are from a 1931 edition of the California Penal Code). In 1931, the sections were not formally codified into the Penal Code yet.

Interestingly, legislative intent research mentions that the bill was part of a national push for uniform handgun sale laws, similar to the state-by-state push for private party sale background checks. One news paper headline speaks of the “possible unconstitutionality of clause provided for in drafting” in the 1923 act.

The 1923 Act in Detail

This act addressed only concealable weapons, meaning handguns and sawed-off rifles and shotguns (pistols, revolvers, and other weapons capable of being concealed).

Section 1 addressed ‘dangerous weapons’
  • Outlawed: blackjacks, slungshot, billies, sandclubs, sandbags, or metal knuckles (things to hit people with, except for police).
  • Prohibited carrying a concealed weapon (except firearms for permittees) including explosives and dirks and daggers.
  • The exception was for the police, of course. Violation was a felony. 
Section 2 prohibited felons and non-citizens from possessing handguns. The prohibition against “unnaturalized foreign born persons[s]” was racist, expressly mean to disenfranchise Asian and Mexican immigrants from owning and carrying handguns. Contemporary comments from legislators and other supporters can be found in archives that clearly indicate a racist basis to this law.

Section 3 enhanced sentences for carrying a weapon while committing a felony.

Section 5 made it a felony to carry a concealed weapon without a license on the person or in a vehicle. It did not require a license to own or purchase a firearm, which continues today, unlike other restrictive states such as Massachusetts and Illinois. Open carry was permitted. “Firearms carried openly in belt holsters shall not be deemed to be concealed within the meaning of this section [...]

Section 6 was the first of a wide variety of exemptions that continue in similar fashion today.  Among the exceptions were:
  • Law enforcement, active, reserve, or retired.
  • Military.
  • Security guards.
  • Shooting club members on target ranges or going to and from.
  • Licensed hunters and fishermen while hunting or fishing, or while going to or from.

Section 7 permitted illegally carried weapons to be confiscated and destroyed.

Section 8 governed issuing the license to carry a concealed firearm. Licenses were valid for one year and ‘may issue’. Individual firearms had to be listed on the application in order to carry them.

Sections 9-10 introduced Dealers’ Record of Sale of Revolver or Pistol or DROS, which is still in common use with alterations. Originally, it pertained to handguns only and included a next-day waiting period. Today, it has expanded to include any firearm sold or transferred in California, thus creating gun registration by way of dealer records (which are then reported to the state). Private transfers were restricted to buyers known to the seller, or else required a dealer sale and proof of identification. Excerpts below: 
“Every person in the business of selling, leasing or otherwise transferring a pistol, revolver or other firearm, of size capable of being concealed upon the person, whether such seller, lessor or transferrer is a retail dealer, pawn-broker or otherwise, except as hereinafter provided, shall keep a register in which shall be entered the time of sale, the date of sale, the name of the salesman making the sale, the place where sold, the make, model, manufacturer’s number, caliber or other marks of identification on such pistol, revolver, or firearm.”
“The purchaser of any firearm, capable of being concealed upon the person shall sign, and the dealer shall require him to sign his name and affix his address to said register in duplicate and the salesman shall affix his signature in duplicate as a witness to the signature of the purchases. Any person signing a fictitious name or address is guilty of a misdemeanor.”
“The duplicate sheet of such register shall on the evening of the day of sale, be placed in the mail, postage prepaid and properly addressed to the board of police commissioners, chief of police, city marshal, town marshal or other head of the police department of the city, city and county, town or other municipal corporation wherein the sale was made; provided, that where the sale is made in a district where there is no municipal police department, said duplicate sheet shall be mailed to the county clerk of the county wherein the sale is made.”
“No person shall sell, deliver, or otherwise transfer any pistol, revolver or other firearm capable of being concealed upon the person to any person whom he has cause to believe to be within any of the classes prohibited by section two hereof from owning or possessing such firearms, nor to any minor under the age of eighteen years. In no event shall any such firearm be delivered to the purchaser upon the day of application for such purchase, and when delivered such firearm shall be securely wrapped and shall be unloaded. Where neither party to the transaction holds a dealer’s license, no person shall sell or otherwise transfer any such firearm to any other person within this state who is not personally known to the vendor. Any violation of the provisions of this section shall be a misdemeanor.” 
Part 4 of Section 11 included the prohibition of storefront advertisement of handguns (real or images), which continues to the present. This is being challenged in the suit of Tracy Rifle and Pistol LLC, et al. v. Harris, et al on First Amendment grounds.

Section 12 made selling handguns for business purposes without a license illegal; it did not yet outlaw private party sales of handguns.

Background Checks 1923 Style, The Waiting Period

Copies of the DROS were required to be mailed to the local law enforcement agency that would retain and presumably review the records. The chief change between the 1917 and 1923 act was the introduction of the one-day waiting period. Ostensibly, the police could review received handgun sale records and stop a prohibited person from acquiring a pistol or revolver. Without modern record keeping and computerized systems, background checks in the modern sense were out of the question, but having some system of identifying prohibited persons buying guns was obviously the goal.

The intent of these laws was to make handgun purchase more difficult and to keep the guns out of the hands of ‘undesirable’ persons, not just felons, but immigrants as well. Douglas-20, the San Francisco Police journal, said it was aimed at automobile bandits and gunmen. Through manual review, particular guns or buyers could be traced. Interestingly, there was an honest belief at the time that these laws would reduce instances of guns used in crime.

In 1956, a three-day waiting period was added. A timeline of California waiting period and gun control laws are here. With a lack of photo ID’s, instant checks, and the ease of lying or falsifying one’s identity in the pre-computer days, these laws were essentially paper tigers. Sadly, narrow-minded police and politicians passed this ineffective law that grew into a monster of registration.

1920s Gun Control Attitudes in Government

A 1927 California Crime Commission report circulates the familiar tropes about gun control and shows the mindset of those in power at the time. 
“The sale of automobiles can not be regulated to keep them out of the hands of criminals, but the sale of firearms can be regulated and effectively controlled. Pistols are acquired by criminals in two ways; by purchase of by theft. The purchase of firearms by undesirable persons should be prevented as far as is humanly possible.” 
The report then goes on to cite reports from the New York State Crime Commission, which includes the stupid belief that “[...] the consequence of the use of pistols by criminals can be made so dreaded that they will be deterred from using them.” Nearly 90 years later and that statement has been proven wrong as any newspaper or broadcast can attest.

More galling statements, clearly displaying a statist and anti-gun bias, once again fall into the familiar (and certainly not new) myths that a gun is useless for self-defense. 
“Firearms in private homes cause many tragedies and are of little avail for defense against criminals. The argument that a revolver in a man’s pocket is a protection is a fallacy. He is safer without a gun than with one. The ordinary citizen walking along the street, even though he has a gun in his hip pocket, if suddenly called upon to ‘stick-em-up’ and feels a pistol stuck into his ribs, is likely to comply with such a demand that is if he is an intelligent person, for the crook can always beat him to the use of a gun. Similarly a householder confronting an armed burglar who has invaded his home at night seldom has opportunity to get his gun from where it is kept and defend himself. Here again the crook ‘beats him to it.’ There is no doubt that the Sullivan law, inadequate as it is, has proved a most effective weapon in enabling the police to deal with crime and criminals.” 
This next statement should enrage any decent American, gun owner or not. “We have no patience with the patriot-like cry that no law can be enacted which will keep guns out of the hands of crooks.” These assertions are on the level of bullshit, showing a government/police hatred for the armed citizen and total disregard for their right to bear arms.

As for the general ‘need’ of the public to own and carry firearms, Chief Koening of the Sacramento Police said: 
“Often when applications are made to me for permission to carry a gun I advise the applicants to buy a police whistle; blowing a police whistle is more protection to the citizen than a gun.” He fails to substantiate that statement and it’s laughable on its face. California lawmen apparently have hated guns for a very long time. The chief also laments that the one-day waiting period isn’t enough for the police to make a background check and would prefer if prospective gun buyers were fingerprinted. 
The California Crime Commission went on to call the right to bear arms “a privilege” and suggested that concealed handgun permit holders be fingerprinted, as well as requiring said permit to purchase a handgun (now a de facto reality), along with a 72-hour waiting period.

Analysis of these laws show that the waiting period originated as a period for police to conduct a background check, if they were so inclined, rather than as a cooling-off period to forestall a crime of passion.

Clearly, negative attitudes from law enforcement, legislators, and government officials about citizens exercising their right to keep and bears arms is nothing new. Just as today, these men were skeptical and dismissive of the individual right to self-defense. Even the arguments are substantially similar. The schemes of those who would do good by doing other evils were no different in the 1920s than it is today. Enabled by technology, the plans and ideas for gun control a century old are fast approaching total fruition today.

Long Gun Registration (all firearms)

AB 809, signed into law by Gov. Jerry Brown in 2011, required all long-guns (rifles and shotguns) to be registered in the same manner as handgun owners. He saw no reason why this shouldn’t be. The bill was ‘sold’ to the legislature by claiming that it would "trace crime guns, identify and disarm hundreds of convicted felons, and return stolen [guns] to the rightful owners." The more sinister motives and ineffectiveness of gun registries was never brought up.

Registration can be done either by notifying the state Dept. of Justice (direct registration) or indirectly by the dealer sending his record of the sale to the state. Formerly, these sale records were destroyed within five days. With private-party sales outlawed, all sales and the vast majority of transfers would have to be conducted through a licensed dealer, resulting in total registration of virtually every firearm that changes ownership. Prior-owned weapons would not be required to be registered.

Until 1991, any firearm could be sold by private Californians to each other and did not require registration, a background check, or dealer/government involvement. Prohibiting this is what Nevada will be facing in the 2016 election.

Shortly before the 2014 requirement for dealers to report long gun sales to the state (long-gun registration), Californian shoppers flocked to stores to buy guns before the registration requirement went into effect so that their purchases would be grandfathered unregistered weapons.

In the state senate analysis the LA County Sheriff described the non-registration of long-guns as a 'loophole.' "This bill would also increase the safety of law enforcement by providing better information regarding the guns we may face [...] Many long guns put officers at greater risk because of their firepower and their ability to shoot through protective vests. Moreover, even a poorly aimed shotgun could greatly injure a law enforcement officer or anyone else."

The supporting reasons for the bill centered around identifying and recovering guns from prohibited persons, assisting in tracing a gun to its owner after a crime, and of course, officer safety in knowing who does and doesn't have a gun. All perfectly reasonable grounds, right? In this age of aggressive police, no-knock warrant service, SWAT proliferation and militarization, do we trust the police to react with discretion if they get a call to a gun owner’s residence? Scant mention was made of the potential for a registry to be abused.

How California Gun Registration Works

All firearm purchases/transfers (except for very limited exceptions) must be done through a licensed dealer who records the sale/transfer and performs a background check.

California obtains information on firearm purchases/transfers in the following ways:
  • Dealers are required to keep a register of firearm transactions. 28100 PC (28215 PC details the process of how the transaction paperwork is retained and reported to the state.)
  • Private-party sales are prohibited by 28050 PC and must go through a dealer, who is then required to record and report the transaction.
  • Anyone who moved into California on or after January 1, 1998 is required to register any firearm they personally bring into the state; applies to new residents, not visitors. (17000 PC and 27560 PC) New residents must register their handguns within 60 days of bringing them into California at their expense (cost $19). This previously only applied to handguns. 

All sales/transfers are kept on the Dealers’ Record of Sale (DROS), which is what is used as the actual record and transmitted to the Dept. of Justice.

The Attorney General keeps on file all firearms and is required to "maintain a registry thereof" 11106 PC. Thus California has firearm registration. The registry consists of the following:
  • The description and personal identifying information of the buyer.
  • The information about the seller/transferor.
  • The identifying information (make, model, serial number) of the firearm. 

Of course, since the state (and feds, by extension) has access to the original paperwork, they have a full registry of every gun legally sold or transferred through a dealer since 2014 and handguns since 1991.

Long-guns owned prior to 2014 by a California resident do not have to be registered. There are countless guns that are legally unregistered in California. This is not an absolute gun registry, where every gun owned must be registered to be legal. Even in states like California where gun sales have been tracked for a long, long time, this leaves huge numbers of currently owned guns ‘off the books.’ The loopholes to this law are the untraceable grandfathered guns and criminals who will never comply.

Next Step, Confiscation

Connecticut’s new gun laws passed in the wake of the Sandy Hook school massacre have prompted massive fears of a statewide gun confiscation push. Gun owners, protesting the unconstitutional and flawed system, vowed to resist any patently tyrannical attempt to take their guns. Fears of sparking a revolution seemed to calm when the state backed off its letters warning of confiscation. New York City has sent these letters.

Registration does lead to confiscation. Wars have been sparked in America over gun confiscation.

Not to mention the records systems, particularly the background check system, is incomplete, incorrect, and massively flawed. California’s Armed Prohibited Persons System (APPS) “has been shown to be anywhere from 40-60% inaccurate,” resulting in citizens who had their guns seized incorrectly. One man had his gun illegally taken because of a decade old conviction for something that was no longer illegal and another couple was targeted because of an incorrect hospital chart. Republican lawmakers, an endangered species in California, prompted an investigation.


Reporting gun sales and transactions is de facto registration, which is first made possible by funneling practically every gun sale/transfer through a licensed dealer.

Tracking the sale and movement of guns, as well as making their purchase more difficult, is the aim of sale/transaction based registration systems. No gun could legally change hands without a paper trail. Over time, every new gun sold and lesser numbers of traded used guns would be added into the system. Given enough time, the only legal unregistered guns would be those passed down through inheritance or gifted by a close relative.

Total gun registration is a progressive process that has to be taken one incomplete step at a time. California’s system evolved organically, but it and other systems have laid the ground work for how a national or state-by-state system would be implemented. Once ‘universal background checks’ force all sales through dealers, the next step is to require all firearm transactions to be reported to the government by the dealer (as in the case of California). Lastly, existing firearms that are not already registered would have to be registered to remain legal (several countries have done this).

Curiously, the initiative would require private gun sale background checks to go through the federal NICS system, instead of the Nevada point-of-contact, as currently used, duplicating the effort and making a headache for dealers. Why do this? The goal is probably to force Nevada to switch entirely to the federal background check system. Because total, federal gun registration is the goal and by mandating the federal system for private sales, it will be easier to implement the dealer sale/transaction reporting registration system.

Gun registration need not reach into every home and count every firearm, not at first. Universal background checks are about starting down the road to sales/transaction based registration. Get the guns and buyers into the dealer, then worry about getting the guns into the system. Once gun owners become accustomed to being dependent on a dealer to acquire a gun, they will be less likely to object to dealers having to report all sales/transactions. It’s boiling a frog by starting him off in cold water.

Deceit is the tactic here. Universal background check supporters are all caught up in using male-on-female domestic violence as a justification (which is sexist) along with officer safety and misapplying the horrific acts of psychopathic murderers who would not have been stopped by universal background checks. Variations on this theme have been used since the inception of modern gun control laws and guns in crime is still a big problem, showing that it’s a people problem, not a gun problem.

If the argument that background checks lead to a sales/transaction registration system is incorrect, then why aren't universal background check supporters introducing measures to implement a toll-free hotline for the public to call in, a secure webpage, allowing the police to run a background check, or granting already vetted concealed firearm permit holders an exemption? These would all accomplish the same purpose as using a dealer as well as be cheaper and easier. Enforcement an issue? Take a good look at the text of the initiative. It’s unenforceable.

As California’s evolving system shows us, background checks and mandatory transfers through dealers will lead to a gun registry via reporting sales and transactions. Don't believe it? Take Shannon Watts, one of the leading activists in banning private gun sales, word for it.

Below are images of the actual Act text and some sources. Research material for the 1917 bill here.

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