Much as we did after Sandy Hook, we find ourselves debating background checks in the wake of killings that would not have been prevented by one. More than 60,000 Americans died by gun homicide between 2013 and 2017, but our attention is drawn only to the rarest, most spectacular, and most unusual incidents, those where a half-day or so’s worth of fatalities happen all in one place — and in those, it is usually the case that the deranged killer bought his guns legally or took them from someone else who did.
But then again, now is as good a time as any to talk about measures that could affect the killings where that is not the case. And as far as gun-control proposals go, universal background checks are among the better ones: They are politically feasible, might actually reduce gun violence on the margins, and would not unduly burden law-abiding gun owners. There are countless reasons to be less trigger-happy about them than their most ardent supporters are, but if political pressure forces Republicans to give ground on something big, this might be the best way to go.
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Most murders are committed by people who are not legally allowed to have firearms, whether because they have disqualifying criminal records or because they are too young. Obviously, though, they don’t pay much attention to the laws barring them from gun possession. The idea behind background checks is to leverage the law-abiding nature of other people who might stop guns from falling into these folks’ hands.
Under federal law, licensed gun dealers have long been required to conduct background checks on all buyers and store the resulting records for two decades (so that each gun can be traced to its original buyer via its serial number). However, this rule does not apply to private individuals who sell guns from their personal collections. Much ink has been spilled arguing over exactly what percentage of gun sales are completed without a background check, but frankly the overall number is irrelevant. What matters is simply whether private sales are common enough to be easily accessible to the small fraction of gun buyers with criminal intentions, which they are.
In addition, the current system makes it hard to trace guns that have changed hands many times, and hard to prosecute someone who sold a gun to a criminal. In effect, you have to show that the seller knew the buyer wasn’t allowed to have the gun. It’s not enough to show that he transferred a gun to a complete stranger with no questions asked.
The individual criminals roaming the streets with guns typically get their weapons informally, through friends and black-market sellers who are not likely to comply with a background-check law. But since just about every gun in the U.S. begins its life with a legal sale from a gun store, it’s clear that each crime gun must transition from the legal market to the illegal one at some point. Unfortunately, precise data on this process are hard to come by: The ATF has numbers on where traced crime guns were bought and where they ended up, which reveal a flow of guns from states with liberal gun laws to states with strict ones, but the steps in between are hard to nail down without a thorough investigation of each individual case. Often the crossover point takes the form of theft, but trafficking is a problem as well — where individuals procure guns through legal sales and then divert them to the illegal market.
At least in theory, universal checks could stop private sellers from inadvertently selling their guns to traffickers with criminal records. And greater documentation of private sales could deter traffickers from getting guns this way even if they could pass the checks.
Some states have already passed laws like this, but unfortunately, state-level background-check laws are destined to be limited in their effectiveness — for the simple reason that it’s easy enough to cross state lines with a bunch of guns in the trunk. Research on their effects is inconclusive. (I’ve discussed studies on both sides here and here.)
But there’s at least a decent logical case that universal checks could make a difference, especially on the federal level, which is more than we can say for a lot of other anti-gun policies. And let’s face it: “Please make sure the person buying your gun is not a felon” is really not that much to ask.
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That’s the promise. There are also pitfalls. Here I’ll reproduce and update a list of questions about how to structure a background-check law that I first wrote in 2015.
How are we going to enforce this? One recent study looked at the effects of background-check laws in Washington, Colorado, and Delaware. The stunning result: In the first two of those states, a background-check law didn’t even measurably increase background checks. Obviously, if you pass a background-check law and everyone ignores it, it won’t make a difference. For this law to work it would need to be enforced, including in areas of the country where neither the population nor local law enforcement has any interest in doing so. Is the federal government going to do sting operations trying to buy guns via private sales throughout the U.S.? Will it aggressively pursue those whose guns wind up at crime scenes and make an example of them? Will we also require gun owners to report thefts, so they can’t wait until the ATF is at their door to claim their weapon was stolen?
Which gun transfers require checks? Manchin-Toomey, the bipartisan background-check bill that came to the fore after Sandy Hook and is being bandied about once again today, is limited to sales that took place at gun shows or were advertised publicly. A requirement of background checks in a broader swath of transfers, while difficult to enforce in real time and harder to sell politically, would aid the prosecution of those who transfer guns to criminals. Other tricky issues include how to permit inheritances, gifts, and the temporary borrowing of guns among family and friends without creating loopholes or making criminals of innocent people. (For a detailed discussion of how this might be achieved, see David Kopel’s “Background Checks for Firearms Sales and Loans: Law, History, and Policy.”)
Are records kept? Under Manchin-Toomey, gun dealers conducting checks on behalf of private sellers would keep records the same way they do when selling their own inventory. Without records of these sales, police would have less of a paper trail to follow. The objection to keeping such records is that they constitute a de facto gun registry, albeit a scattered one, that the government could use to track down and confiscate legally purchased firearms. This seems rather unlikely, but, in fairness, gun confiscation has happened in other modern Anglosphere nations: Australia, the U.K., and Canada.
Who keeps the records? Currently, records are spread through countless gun stores, and getting to them involves tracing the gun through manufacturers, importers, and wholesalers. When stores go out of business, their records are transferred to the federal government, which must not organize them into a searchable database because doing so would create a registry (which would be illegal under current federal law). All this would become even more complicated with private sales in the mix — different sales of a gun would be documented at different stores, and the gun’s various owners would need to point police to each new dealer. One solution would be to have gun manufacturers, rather than stores, keep track of who has purchased their guns: If the gun is a Ruger, Ruger has its records. Another would be for stores to report the serial numbers of the guns they’ve sold, but not the buyers’ information, to a searchable federal database. This would quickly point investigators to the correct gun store without compromising the privacy of those not under investigation. Of course, these approaches would heighten concerns about a registry.
Who pays? Manchin-Toomey allows those conducting the checks to charge fees. If the government decides to require these checks of people exercising a constitutional right, it should pick up the tab.
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I’ve long described myself as a “squish” on background checks: You’ll pry my 15-round magazines and semiautomatic handguns from my cold, dead hands, but I won’t lose much sleep over something like this. Before enacting them, though, we should think hard about the details and the tradeoffs we’re striking.
The last time around, Manchin-Toomey was watered down substantially and still couldn’t pass. If the political will for this still isn’t there, and it’s not at all clear to me it is, it’s better to focus on something smaller than to botch universal background checks. (Red-flag laws are one option; another is to expand and fund voluntary checks on private sales.) Perhaps this is the kind of policy Republicans should accede to when they are powerless to resist, rather than something they should pass when they control both the Senate and the White House.
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