Universal background checks for gun purchases are an attempt to address a legitimate problem: It really is easy for criminals to get guns, and it really is hard to prosecute those who sell guns to criminals. While licensed gun dealers are required to perform background checks and maintain records, private citizens may sell their guns without so much as asking a question. To prosecute a citizen for an illegal sale, the government must prove that the citizen knowingly gave a gun to a criminal or bought a gun for the sole purpose of transferring it to another party. In surveys, a large percentage of criminals report procuring guns through friends, family, and other private sources, yet these suppliers rarely face charges.
But the fact that the problem is real does not mean this proposed solution would be helpful. Universal checks might be an inherently unworkable idea. And a universal-check policy capable of passing the current Congress will certainly not do much good. It is time for legislators to direct their efforts elsewhere.
The issues with Charles Schumer’s bill have been ably laid out by our own Charles C. W. Cooke, and they highlight the practical hurdles any such policy will face. Under the bill, Americans would be charged a fee — of an amount to be determined later, by bureaucrats — for exercising a constitutional right; the only alternative is for the government to shoulder the costs. Law-abiding Americans could face prosecution for various temporary, everyday gun transfers, but exemptions that are too generous could make the law difficult to enforce. Gifts between family members are not covered, which is reasonable and politically necessary — but also a significant loophole. Adam Lanza and countless other murderers have obtained guns through family.
Further, Schumer’s bill would require record-keeping, presumably by the gun dealers and law-enforcement agencies that conduct the checks. (This too would be fleshed out in future regulations.) Such records could improve efforts to trace crime guns, and the absence of a required record could in some cases be good evidence of an illegal gun transfer. But Republicans argue, not entirely unreasonably, that a large-scale record of gun transactions constitutes a firearm registry, currently forbidden by federal law, even if it does not include within-family transfers and is maintained by private parties. Many gun owners don’t want to be in a permanent database for merely exercising a constitutional right, and fear that if the government ever were to seek — in an unlikely scenario — to confiscate guns, a registry would be a necessary prerequisite. Tom Coburn, the leading Republican in negotiations over the bill, has insisted that no records be kept. He seems unlikely to budge on this point.
No worthwhile option is available: With records the bill cannot pass, and without records the policy loses any potential it holds for reducing crime.
There are very few ways in which a politically feasible universal-check law — one with liberal exceptions for temporary and within-family transfers, and no record-keeping — would do any good. It would prevent the rare cases in which a law-abiding person unwittingly sells a gun to a criminal. It would enable sting operations on citizens who sell guns through classified ads. And even without record-keeping, those who sell guns to criminals would need to lie about whom they sold to and whether a check was conducted, and such lies could prove useful to prosecutors.
But let’s not kid ourselves. Criminals and their enablers will not conduct background checks, it will be difficult to prove they didn’t, and oftentimes the policies under consideration won’t even require them to. There is not nearly enough benefit here to outweigh the substantial cost.
If a background-check compromise is truly needed, we suggest providing incentives for voluntary checks. Gun owners are overwhelmingly law-abiding, and they do not wish to sell guns to criminals, even if they can get away with it. Many would not hesitate to use such a system for transactions with strangers, and even the NRA has supported voluntary checks at gun shows in the past. The effect on crime would no doubt be small, but the enforcement problems and much of the expense inherent in a mandatory system would be avoided. Further, Congress might consider some other elements of Schumer’s bill, such as those requiring better maintenance of mental-health records.
Well-meaning people of all political persuasions would like to make it harder for criminals to get guns without burdening legitimate transactions. But Congress cannot pass a universal-background-check bill that has any chance of achieving this. It should drop the idea.