The Chilling Effect of Background Checks on Second Amendment Rights

[Dean Weingarten]

The existing background check law has a tremendous chilling effect on the exercise of Second Amendment rights. Most of the people denied the right to buy a gun are false positives. That is, they are falsely denied. It is a travesty of justice that tens of thousands of people are denied their rights by this system every year.

MyFoxTampa reports:

The law requires licensed gun dealers to check with law enforcement before making a sale, which in this state is the Florida Department of Law Enforcement. The goal is to prevent felons -- and people who don't qualify -- from getting their hands on a gun and it's a federal crime if they even try.
But how often is the law enforced?

"Virtually no one is arrested and convicted of attempts to illegally buy a gun in a gun store," stated Gary Kleck, a professor of criminology at Florida State who's done extensive research on gun control laws.

FOX 13 took a look at the numbers across the nation and in the Tampa Bay Area. The most recent figures from the Department of Justice show there were more than 76,142 denials in 2010.

But just 62 cases were referred for prosecution and only 13 resulted in a guilty verdict or plea.

In 2010, only .017 percent of people who were denied the right to buy a firearm were convicted of illegally attempting to do so. This should be proclaimed everywhere as the tremendous infringement on Constitutional rights that "background checks" are.

Dean Weingarten

http://gunwatch.blogspot.com/2013/07/fl999-percent-of-people-who-fail-gun.html

 

[BigG]

That is great. I agree the background checks are just another way to control the citizens. They do not stop thieves from getting guns.

 

[T2K]

That is a VERY useful link! Repeated here "for the record": https://www.ncjrs.gov/pdffiles1/bjs/grants/239272.pdf

When I see that every single denied NICS is investigated, and every single legitimately prohibited buyer is prosecuted and every single false-positive is quickly and effectively corrected THEN we can discuss background checks. Just discuss, mind you. Until then, there is nothing to discuss.

 

[JustinJ]

Whose responsibility is it? For example, is the gun store required to report to LE that an individual was rejected or is there supposed to be an investigation opened immediately by the feds whenever a NICS check is denied? If the latter, which agency has the responsibility?

 

[Ryanxia]

Whose responsibility is it? For example, is the gun store required to report to LE that an individual was rejected or is there supposed to be an investigation opened immediately by the feds whenever a NICS check is denied? If the latter, which agency has the responsibility?

The gun shop calls the NICS to get an approval or denial from them, if the person is denied the wheels start turning on the feds end. The gun shop owner takes no action after that other than to tell the buyer he was denied (sometimes delayed) and is not allowed to sell him the firearm. As far as the agency it is the ATFE. Some states require the gun shop to directly call their LEO department for handgun sales.

 

[JSH1]

That is a VERY useful link! Repeated here "for the record": https://www.ncjrs.gov/pdffiles1/bjs/grants/239272.pdf

When I see that every single denied NICS is investigated, and every single legitimately prohibited buyer is prosecuted and every single false-positive is quickly and effectively corrected THEN we can discuss background checks. Just discuss, mind you. Until then, there is nothing to discuss.

Are you willing to fund the ATFE at a level the will allow them to investigate every person that fails a background check?

 

[JERRY]

yet there is virtually no way of verifying one's legal right to vote or not.....

 

[tyeo098]

yet there is virtually no way of verifying one's legal right to vote or not.....

Yes because a thing called a 'Voters Registration' does not exist.

 

[T2K]

I already do (with my federal income taxes). The fact that said funds are used for other silliness instead is not my fault.

 

[JustinJ]

So it's against the law for a convicted felon to attempt to purchase a firearm. What about other reasons for denial of a NICS? For example, is it illegal to own or attempt to purchase a gun if one is dishonorably discharged from the Armed Forces or under indictment? I can't say for sure but I wouldn't think so and if such, the statistic quoted in the OP and article could be very misleading. Also, we do hear about people being denied for error of records fairly regularly. Are these denials included in the statistic as well?

 

[T2K]

Justin, read the pdf at the link I posted. It has all the answers to the questions you are asking and much more.

 

[JustinJ]

Justin, read the pdf at the link I posted. It has all the answers to the questions you are asking and much more.

Good info. Unfortunately detail is lacking as to why many criminal attempts to purchase firearms are not prosecuted but it does seem that this a bit more complex of an issue than the OP is portraying. The .017% "statistic" is without question incredibly misleading.

 

[JSH1]

I already do (with my federal income taxes). The fact that said funds are used for other silliness instead is not my fault.

Silliness like hand searching 4473 forms to do gun traces because they aren't allowed to create a searchable database?

 

[Iramo94]

Silliness like hand searching 4473 forms to do gun traces because they aren't allowed to create a searchable database?

Precisely. The government having a inability to efficiently search 4473's is exactly why they were designed to be burned in 20 years in the first place.

 

[oldbear]

Dean, nowhere in the article you cited is there any mention of the “false positives” you referred to. If a person is denied the right to purchase a firearm and appeals the decision and the appeal overturns the denial that would be considered a false positive. The fact that the U.S. attorney is not pursuing cases where a person knew or should have known they could not legally buy a firearm yet attempted to do is another matter entirely.

 

[JSH1]

Dean, nowhere in the article you cited is there any mention of the “false positives” you referred to. If a person is denied the right to purchase a firearm and appeals the decision and the appeal overturns the denial that would be considered a false positive. The fact that the U.S. attorney is not pursuing cases where a person knew or should have known they could not legally buy a firearm yet attempted to do is another matter entirely.

The article doesn't mention false positives because the paper the article references shows no evidence that the majority of gun buyers denied purchases are false positives. In fact it shows the opposite:

6,037,394 Applications
72,659 Denials
3,491 Denials reversed on appeal

In 2010, 0.0578% of gun purchase applications resulted in a denial that was reversed on appeal. Not quite the tens of thousands of people denied their rights every year as claimed.

Background checks are designed to prevent prohibited people from purchasing a gun. If the purchase is prevented the system has worked.

 

[hso]

There is significant faulty reasoning in the OP.

Denied vs. denied and prosecuted are completely different. What percentage of denials are immediately reversed with additional information? What percentage are reversed after an appeal? What percentage of people just walk away? What percentage are due to people who didn't know there was something on their record that caused them to be denied? What percentage of these are actually criminal attempts to purchase a firearm?

 

[Ryanxia]

There is significant faulty reasoning in the OP.

Denied vs. denied and prosecuted are completely different. What percentage of denials are immediately reversed with additional information? What percentage are reversed after an appeal? What percentage of people just walk away? What percentage are due to people who didn't know there was something on their record that caused them to be denied? What percentage of these are actually criminal attempts to purchase a firearm?

I think that's the OP's point. How many were eventually allowed to proceed after going through more hoops? These people were denied (delayed actually if they went through the red tape) their Constitutional Rights after doing nothing wrong. That's a lot of mistakes. I don't care if it's too hard to make the system perfect, a right delayed is a right denied.

 

[dogtown tom]

Out of 4,000+ NICS checks since 2008 I've had exactly five customers get DENIED on their FBI NICS check.

Not one was a "false positive".......four told me later that they were either in the process of fighting a DUI ticket or under deferred adjudication. All four successfully appealed their denial and eventually got their gun. All four lied on their 4473 btw.

The fifth one? The FBI asked for his residence address during the initial NICS check......which makes me suspect he wasn't exactly a model citizen.
*********************************************************************************************************



EDITED TO ADD:
Well, yesterday, half an hour after my post above..............I had my sixth denied transaction.

This guy bought an AR back in January. When it arrived in March, he asked if he could "clear up some legal issues" before filling out the 4473. Sure, but after 30 days I begin a $1 a day storage fee.

He calls last week, came in filled out the 4473 and I run his NICS check....delayed.

Yesterday afternoon the FBI called to change the status to Denied. I guess he didn't get things cleared up after all. Now I get to sit on his gun for another five-six months.

 

[Dean Weingarten]

I have had several gun shop owners say that most denials were false positives, as far as they could tell.

That was certainly my experience during the 12 years that I had an FFL.

Here is an article by John Lott stating that 94-99.98 percent of the denials are false positives:

http://johnrlott.blogspot.com/2011/06/problem-with-brady-background-checks.html

 

[Dean Weingarten]

I think the burden of proof should be on the government that those denials were not false positives.

After all, they denied people their Constitutional rights. Supposedly they committed crimes, yet they only prosecuted less than 1/10 of one percent, and only convicted about 1/5 of those they prosecuted.

If you only look at the numbers that they attempted to prosecute, which were supposedly their best cases, they were only able to convict, even including plea bargains, 13 out of the 62 cases that they chose to prosecute."


That is a pretty clear indication that the vast majority of denials are false positives.

In my experience, most denials are because a name is similar to a convicted felon, next would be because of an old arrest that did not turn into a conviction.

There have also been a number of cases where the offense was a misdemeanor when it was ajudicated, but a change in law has now made it into an offense that is punishable by a year in jail. I do not know how common those are.

Here is another quote from John Lott:

" In 2008, 1.5 percent of those having a Brady background check were forbidden from purchasing a gun. Unfortunately, virtually all these cases represent so-called “false positives.” In 2006 and 2007 (the latest years with detailed data), a tiny fraction — just 2 percent — of those denials involved possible unlawful possession; and just 0.2 percent of the denials were viewed as prosecutable — 174 cases in 2006 and 122 in 2007. Even when the government decided that the cases were prosecutable, at least a third of them failed to result in convictions. And even the few convictions were often for people who simply made mistakes — they hadn’t realized that they were prohibited from purchasing a gun.


http://www.nationalreview.com/articles/257026/rounding-guns-interview

 

[JSH1]

http://johnrlott.blogspot.com/2011/06/problem-with-brady-background-checks.html[/url]

He does nothing to prove that the denials are false positives. He gets the first number 94.2% by subtracting the number of cases referred to ATF field offices from the total denials. In effect he is assuming if the ATF doesn't decide pursue a denial then it must be false. He gets the second number 98.98% by dividing the number of people convicted of lying on the form by the total number of denials.

EDIT:
You only have to look at the first report you linked to see he is spinning the numbers.

IN 2010
6,037,394 Applications
72,659 Denials
16,513 Appeals
3,491 Denials reversed on appeal.

Of the 16,513 people that are denied and appeal only 21.1 % of then are successful. That means at LEAST 13,022 of the people that are denied are confirmed to be ineligible to purchase a firearm. It also means that his 94-99.8% figures are BS.

 

[Dean Weingarten]

"Of the 16,513 people that are denied and appeal only 21.1 % of then are successful. That means at LEAST 13,022 of the people that are denied are confirmed to be ineligible to purchase a firearm. It also means that his 94-99.8% figures are BS."

No, it does not mean that the 13,022 are confirmed to be ineligible. It only means that they did not file sufficient proof acceptable to the FBI that they are eligible. The burden of proof here has shifted to the citizen who is trying to buy a gun.

Here is the FBI appeals brochure. Note that it says that:

http://www.fbi.gov/about-us/cjis/nics/appeals/nics_appeals_brochure_eng

Questions of Identity

"You may question the identity of the criminal history record used as the basis of your denial or delay by having your fingerprint impressions rolled or electronically scanned by law enforcement or another authorized fingerprinting agency. The agency preparing your fingerprints must provide an agency name, address, telephone number, and an Originating Agency Identifier number (as assigned by the FBI) and the legible signature of the person who rolled your fingerprints on the fingerprint card. The reason fingerprinted should be marked “For NICS Purposes.” The omission of any required information may result in a rejection of your appeal."

It is possible that most of those 13,022 are legitimately denied. But the statistics cited do not show that. They only show that the FBI did not think they submitted sufficient proof for their appeal.

It is unlikely that very many are going to exert considerable effort and expense to appeal, when they can exercise a "street appeal" by simply trying again another time, or buying from a private party.

If the people involved are dangerous enough to be denied their Constitutional rights to buy (and presumably own) a gun, then they should be dangerous enough to prosecute.

 

[dogtown tom]

Dean Weingarten I have had several gun shop owners say that most denials were false positives, as far as they could tell...

How would those gun shop owners know?
NICS doesn't tell the dealer why a buyer is delayed or denied.

I only knew because my customers told me they had been charged with felony DUI or were on deferred adjudication. Not a one said "I din't do nuffin!"

I doubt that any dealer would know that "most denials were false positives".
That's just a WAG.

 

[we are not amused]

Are you willing to fund the ATFE at a level the will allow them to investigate every person that fails a background check?

No way in hell! Not until some one goes to prison for "Fast and Furious"!