Universal Background Checks are Unenforceable and Easily Defeated at Trial

As you may or may not know, we are fighting this very fight in Nevada. Ballot Question 1, a ballot initiative that was funded by Bloomberg's Everytown and MDA organizations along with the local liberal shrews and limousine liberals will be on the November ballot. Basically the idea is to force you to go to a dealer to have a background check done via NICS before transferring a firearm, with limited exceptions. In Nevada, normally DPS does the background checks for dealers and charges $25 per transaction. I'm not sure what the reasoning is for choosing to use NICS for the private party sales, but that will add another layer of confusion for dealers who have never used it, I'm sure.

Here is the issue that I see with these "universal" background checks. First, I will talk about enforcement. I want you to keep in mind that you are innocent until proven guilty in a court of law. This means that it is on the prosecution and by extension, the police, to prove that you have committed a crime. What would be the crime they would be enforcing? The crime would be failing to obtain a background check. The police have to have probable cause that you did NOT do something in order to arrest you for failing to get a background check.

Then the prosecutor has to prove beyond a reasonable doubt that you haven't completed a background check. It's difficult enough proving that you actually did do something let alone trying to prove beyond a reasonable doubt that you did NOT do something. Keeping in mind that you are innocent until proven guilty, you don't have to tell them what FFL you used to get a background check. You don't have to tell them what date you transferred the firearm. You are free to exercise your 5th Amendment right against self-incrimination. The entire onus of the investigation lies with law enforcement and the prosecution.

For example, Nevada currently has approximately 740 licensed FFLs. There are 365 days in a year. Remember that FFLs keep their records in their "bound book" per ATF regulations. Some may have converted to electronic bound books if issued a variance by the ATF, but this is not yet the norm. That means someone has to physically go and paw through their bound book and possibly the 4473 forms at each dealer to prove that a record does not exist. So they would have to reasonably ensure that they inspect every record at every dealer.

If law enforcement/prosecution do not check every dealer or check every record, they leave the door open for the defense to create a reasonable doubt that the one record at the one dealer that they did not inspect could be the form proving that the background check was completed. Remember that by federal law, the NICS system may not be used to create a registration of firearms or gun owners. This means that under federal law the identifying records on their end must be destroyed after the background check is completed. The man-hours required to attempt to prosecute a single violation of this law would be ridiculously prohibitive.

Second, I will talk about the background checks as they apply to prohibited persons. It is unconstitutional to require a prohibited person to present himself for a background check. Yes, I'm serious. There was a Supreme Court decision in 1968, Haynes v. UnitedStates. The reader's digest is that a man who was a convicted felon was caught in possession of an unregistered NFA firearm. He successfully argued that requiring him to register the NFA firearm is akin to forcing him to make an open admission to the government that he is a felon in possession of a firearm. Remember that 5th Amendment right against self-incrimination? The courts agreed with him that the law cannot compel him to perform an action that would amount to confessing to committing a crime.

While the Supreme Court did not invalidate the law requiring the registration of NFA firearms nor did they invalidate the prohibition on felons possessing firearms, they agreed that the law requiring registration could not be enforced against convicted felons. How hard do you think it would be for a defense lawyer to make this same argument for his client previously convicted of a disqualifying offense (domestic violence, felony, etc), subject to a protection order or adjudicated mentally ill? These are the very people that this law was intended to keep guns away from and they are already exempt from the requirements of this law!

I believe this law was written to intentionally fail. The left wants it to be unenforceable so it opens the door to push for registration. As the law abiding citizens go for background checks at dealers, their updated 4473 forms will help create more accurate, useful records to show who owns which firearms as of a certain date. Then the forms can be pulled to create the registration database. The next step will probably be confiscation of certain types of firearms. Think it can't happen? California and Connecticut have already been reported to be tracking down owners of certain types of firearms. It's not hard to imagine that being stretched into a nationwide system.

-John