Gun Background Checks and Prosecutions

by Robert VerBruggen

Inspired by a debate that took place during a recent congressional hearing, Brad Plumer asks whether we should prosecute more people who fail background checks. Right now, very few people who fail the checks are prosecuted, but it’s not clear there’s much to be gained by going after them. As I wrote before:

The FBI releases a report every year about these denials; the most recent one covers data from 2010. That year there were 153,000 denials, about half by the FBI and half by state agencies. Of the more than 76,000 denials the FBI referred for investigation, more than 71,000 — about 94 percent — were “not referred to field, overturned, or canceled.” (On rare occasions, checks are canceled when they should not have been conducted to begin with.) Of the cases that were deemed worthy of investigation, many fell through (because there was insufficient evidence, the person turned out not to be a felon, etc.).

Most of the cases that were not “referred to field” (about 68,000) were not overturned or canceled, either, so it’s not the case that we’re talking about only “false positives” here, as some gun-rights supporters claim. It’s also not the case that these folks were necessarily kept from “getting their hands on a gun”: They were left free, and able to buy a gun from a private seller without a background check if they so desired. A 2004 DOJ review argued that the low number of investigations and convictions stems from the difficulty of prosecuting these cases.

What’s going on here is that very few people submit to background checks knowing they’ll fail. Most of the people who fail checks didn’t realize they’d be denied — they did something noncriminal (such as being discharged dishonorably from the armed forces), did something a long time ago, etc. Some of these people are eligible to have their firearm rights reinstated but did not think to apply. The funniest example I’ve come across is that of a man who had been convicted of stealing a pig in 1941, which was technically a felony.

It’s awfully difficult to get a jury to convict someone who claims he didn’t realize he was doing anything wrong — and who, as evidence, points to the fact that he voluntarily had his name run through a background-check system. The system succeeds mainly by making it impossible for criminals to get guns directly from licensed dealers, not by catching people when the checks are run.