The Chilling Effect of Background Checks on Second Amendment Rights

[beatledog7]

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.

Agreed, in a sense. But I'd go a step further. A person who is ineligible for the reasons that the laws say make him or her ineligible should not be walking freely among the law-abiding in the first place, and therefore should not be free to walk into a gun store to try to buy a gun. A person who is "legally" too dangerous to own a gun should be under 24/7 supervision of either law enforcement or mental health professionals. If free, such a person can acquire a gun if he really wants one, background check notwithstanding. That's not what we want.

Furthermore, a previously ineligible person deemed to be safe for release into polite society should be able to buy a gun, pure and simple. If we don't think he should be able to own a gun, then why are we sending him out where the guns are?

We shouldn't need background checks at all, since all the people who would fail them should be locked away, leaving only those who would obviously pass the check to be free to walk into a gun store.

Problem solved.

 

[Dean Weingarten]

The customers that I recall (it has been several years) either said that they had been denied before because a criminal had a similar name, or were active border patrol agents.

 

[we are not amused]

I have a friend who has a rather common name. He is denied about 2 out of three times when he attempts to buy a gun.

After challenging the NICS check successfully twice, he just has his wife purchase the guns now.

He is thinking about getting a concealed carry license just to avoid the hassle, but doesn't even own a pistol, just shotguns and rifles.

 

[we are not amused]

Agreed, in a sense. But I'd go a step further. A person who is ineligible for the reasons that the laws say make him or her ineligible should not be walking freely among the law-abiding in the first place, and therefore should not be free to walk into a gun store to try to buy a gun. A person who is "legally" too dangerous to own a gun should be under 24/7 supervision of either law enforcement or mental health professionals. If free, such a person can acquire a gun if he really wants one, background check notwithstanding. That's not what we want.

Furthermore, a previously ineligible person deemed to be safe for release into polite society should be able to buy a gun, pure and simple. If we don't think he should be able to own a gun, then why are we sending him out where the guns are?

We shouldn't need background checks at all, since all the people who would fail them should be locked away, leaving only those who would obviously pass the check to be free to walk into a gun store.

Problem solved.

I agree 100%!

We are talking about one's Civil Rights here! Would we restrict his Freedom of Speech, Religious Rights, Fourth Amendment Rights or the His Fifth?

 

[dogtown tom]

we are not amused I have a friend who has a rather common name. He is denied about 2 out of three times when he attempts to buy a gun.

After challenging the NICS check successfully twice,.

Denied or delayed?
If he's being denied it should happen EVERY time. If he gets delayed there is nothing to challenge with NICS.

...he just has his wife purchase the guns now...

Which is a felony......by both him and his wife.

 

[we are not amused]

Denied or delayed?
If he's being denied it should happen EVERY time. If he gets delayed there is nothing to challenge with NICS.


Which is a felony......by both him and his wife.

Denied, and no, it doesn't happen every time.

LOL! He is legal! It can't be a straw purchase unless he isn't legal to own, which he us!

 

[316SS]

It can't be a straw purchase unless he isn't legal to own, which he us!

18 USC § 922 (a)

It shall be unlawful -

...

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

(my emphasis)

You do not have to be a prohibited person to engage in a straw purchase. You just have to lie.

 

[we are not amused]

(my emphasis)

You do not have to be a prohibited person to engage in a straw purchase. You just have to lie.

Who is lying?

She buys the gun as a gift for her husband.

 

[dogtown tom]

we are not amused Quote:

Originally Posted by 316SS
(my emphasis)

You do not have to be a prohibited person to engage in a straw purchase. You just have to lie.

Who is lying?

She buys the gun as a gift for her husband.

The wife is lying.
When you post "...he just has his wife purchase the guns now..." that sure as hell doesn't sound like someone buying a gift. It sounds like he is directing her to purchase a firearm in order to avoid doing so himself.

 

[Akita1]

The wife is lying.
When you post "...he just has his wife purchase the guns now..." that sure as hell doesn't sound like someone buying a gift. It sounds like he is directing her to purchase a firearm in order to avoid doing so himself.

echo that

 

[AethelstanAegen]

The bar to have a case prosecuted is set very high in our legal system. Just because a large portion of denials did not result in prosecution does not in anyway shape or form reflect that, that group was false positives, it merely reflects the fact that a 4473 form is likely not considered enough evidence to prosecute in a court of law. I think hso and JSH1 have the right idea here. It would seem rather that the majority of denials were indeed correct but simply weren't followed up (likely b/c the ATF simply doesn't have the manpower to do so). It would be interesting to know the exact circumstances of the cases that were prosecuted but my guess would be that the individuals in questions took other actions beyond just lying on the 4473, which gave the ATf enough evidence to try and prosecute.

 

[Dean Weingarten]

It may be that the BATFE and federal prosecutors simply think that the cases are not worth prosecuting. That is possible.

But to claim that a 4473, where the potential criminal identified themselves with picture ID, signed the form, almost certainly left the fingerprints on the paper, and did this in front of withesses, is not sufficient evidence of a felony is simply not correct.

More likely, the prosecutors know that the vast majority of these denials are either false positives or cases where the reasons for denial are so old and stale that no jury would convict.

 

[A-FIXER]

Funding, guess potus should have stayed in the U.S. and used that 100millon+ to fund it you know for the children!!!....

 

[gc70]

Look at another section of the NICS denials report - unlawful possession cases. Unlawful possession cases involve supposedly prohibited persons who have already acquired firearms and LEOs are sent out to retrieve the firearms.

Table 3 in the report shows 1,923 unlawful possession cases in 2010. 60.5% of the cases (1,1,64) resulted in retrievals and 26.5% of the cases (509) were determined to be "Subject not prohibited." Over a quarter of those worst-of-the-worst cases involving LEOs being dispatched to track down people and retrieve guns were false positives.

Immediately following Table 3 is another damning statistic. There were 1,164 unlawful possession cases in which firearms were retrieved from supposedly prohibited persons. And how many of those cases in which prohibited persons were conclusively found to be in possession of firearms were even referred for prosecution? 13 out of 1,164. That represents 17.7% of all referrals for prosecution in 2010 - not for some "paperwork" charge, but for an "in possession" charge.

 

[oldbear]

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.

JSH1, thank you for an excellent job of proving my point.

I believe that the O/P intended to post false and misleading information.

 

[Dean Weingarten]

Table 3 in the report shows 1,923 unlawful possession cases in 2010. 60.5% of the cases (1,1,64) resulted in retrievals and 26.5% of the cases (509) were determined to be "Subject not prohibited." Over a quarter of those worst-of-the-worst cases involving LEOs being dispatched to track down people and retrieve guns were false positives.

If you apply these figures, which are likely the best cases that the government can make for denials, then the minimum number of false positives would be about 26.5% of all denials, which would be .265 X 76,142 or 20,177 false positives.

It is clear that tens of thousands of americans are being denied their rights by this system every year.

But, all of this could be cleared up by a good study. Have independent researchers interview a representative sample of denials that are put out by NICs. It would be easy enough to do. Just take all denials in, say a week, about 1,500, it appears, provide the researchers with the reason NICs gives for the denial, and find out if it is correct in each of the 1,500 cases.

That makes a very simple study.

 

[Dean Weingarten]

Here is a fact check from the Washington Post that does a pretty good job of exploring the data and its weaknesses. They come up with a similar figure for false positives of people where the cases were investigated:

"Then, virtually all of these cases were declined by ATF field offices. Here are some of the key reasons, with essentially one-quarter being a case of mistaken denial — even after weeks of investigation."

I would love to see a good study on this. It appears that there is a minimum of about a fourth of the cases that are false positives, and it is unknown how many of the rest are. It also appears that most of the rest are people that prosecutors do not think worthy of prosecution.

This tells me that most of them are not a danger to society. In my opinion, the legal reasons for denial should be changed to reflect this.

http://www.washingtonpost.com/blogs...7a8c1d4-65b4-11e2-9e1b-07db1d2ccd5b_blog.html

 

[beatledog7]

Let me see if I have this mostly right: we don't prosecute most cases in which a person who knows he's a prohibited person tries to buy a gun via a 4473 because we can't afford to do it and it's too hard to get a conviction without additional evidence.

Evidence of what? Falsifying a federal form? What more evidence do you need to convict a person of falsifying a federal form than his signature on a form with false information that he had to have known was false.

If we can't or won't enforce a law, for whatever reason, it's a bad law. Of course, the police can't catch every speeder, nor is it worth trying. But we're not talking about speeding here. That's just a violation in any case. We're talking about lying on a federal form to obtain something that federal law says you can't have. Seems to me if the prosecution rate were significantly higher, even for a little while, the people who do this would get a clue.

But then there's post #26, which spells out how to render the 4473 and all it accoutrements obsolete.

 

[waterhouse]

I've personally had similar experiences as dogtown Tom. Out if thousands of NICS checks I've had 2 denials.

One guy admitted he had a few marijuana charge convictions within a year, which apparently put him in the "habitual drug user" category. I had to hold his gun for about 7 month until the charge was over a year old, at which point the ATF had me rerun his NICS check which was approved. The drug criteria may be argued, but the system worked in that case.

The second guy they called and requested his address within about 2 minutes of me running the check and telling him he was denied. Like dog town, I'm guessing that wasn't a false positive either, as he later contacted me and asked me to sell the gun on consignment for his legal fund.

I don't believe "declined to prosecute" equals "false positive."

 

[JustinJ]

Let me see if I have this mostly right: we don't prosecute most cases in which a person who knows he's a prohibited person tries to buy a gun via a 4473 because we can't afford to do it and it's too hard to get a conviction without additional evidence.

Evidence of what? Falsifying a federal form? What more evidence do you need to convict a person of falsifying a federal form than his signature on a form with false information that he had to have known was false.

Proving the individual knew he falsified the document is likely a major hurdle. I knew a guy who had done time for a drug offense but couldn't tell me if it was a felony conviction. Based on what he was busted with, more than enough for intent to distribute, it sounded like he was. In reality though, he had gone to a boot camp program in order to avoid the felony conviction.

My point is that, believe it or not, people often don't understand their own legal record.

 

[JSH1]

Here is a fact check from the Washington Post that does a pretty good job of exploring the data and its weaknesses. They come up with a similar figure for false positives of people where the cases were investigated...

http://www.washingtonpost.com/blogs...7a8c1d4-65b4-11e2-9e1b-07db1d2ccd5b_blog.html

The article does not come up with a similar figure for false positives. Why do you keep posting stuff that doesn't support your position and saying that it does? From the article:

Now, let’s back up a moment. As far as we can determine, the very low rate of referrals does not mean that most of the denials were “false positives” or unwarranted. But it does mean that such cases are a low priority for government prosecutors.

“Cases are referred to ATF field divisions in accordance with guidelines established by the field offices and U.S. Attorneys who work within each division’s territory. The guidelines basically cover the types of cases that are considered to be high priority,” said Frandsen. “Because the strength of a particular case will be determined by further investigation, it is more accurate to say that a case is not referred to a field division because it is not considered to be a high priority within that division.

And again:

We could find no study that looked at the rate of “false positives,” though a 2003 NICS Operations report said the rate had increased by 2 percent when an updated system was implemented, and it was working to reduce that. The report did not specify an actual false-positive rate.

 

[itsa pain]

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.

all the guys that want the law followed to every letter of it I bet do not live perfect lives. there were many small infractions added on to the forms so they can expand banning people. all the fire and brimstone preached about the letter of the "law" will be turned against gun owners. they are working on "mental" issues now which can be twisted and expanded without limit. Patrick Henry said- "the object is for ALL men to be armed". not just ones after jumping thru hoops and rubberstamped by govt

 

[Dean Weingarten]

JSH1, you conveniently left out the line that I quoted from the Washington post article:

"Then, virtually all of these cases were declined by ATF field offices. Here are some of the key reasons, with essentially one-quarter being a case of mistaken denial — even after weeks of investigation."

I specifically stated "They come up with a similar figure for false positives of people where the cases were investigated"

That is obviously a tiny subset of all the cases.

But, it is the only data that I have seen where those denied were examined in depth to determine if they were false positives or not, and as these were cases that where the authorities attempted to retrieve firearms, so it is likely that they were some of the strongest cases.

Then you quote the article saying that they "could find no study that looked at the rate of false positives."

So, we know that in the small subset that were intensively investigated, about a quarter were false positives, but we do not know what the percentage is in the vast majority of cases.

I would love to see a study of a random sample of denials, say a week's worth, as I suggested.

 

[JSH1]

So, we know that in the small subset that were intensively investigated, about a quarter were false positives, but we do not know what the percentage is in the vast majority of cases.

Of course that didn't stop you from claiming in your original post that "Most of the people denied the right to buy a gun are false positives" or later posting Lott's blatantly incorrect 94-99.8% false positive rate. Face the facts; you don't know how many denials are false positives. To claim that you do is dishonest.

 

[beatledog7]

My point is that, believe it or not, people often don't understand their own legal record.

I choose not. And even if he really doesn't understand his own record, once someone tries a single time and is denied, I would think he'd want to know why, and learning why he'd either think it's an error and fight it or recognize he's screwed and stop trying to pass a 4473 check. But we see many people try over and over, right?