Someone on this forum posted this years ago, many of the stats and references are quite old but it does a great job of explaining the current background check system and the problems of past introduced bills. Also some of the links may not work as this is 5+ years old.
I really wish I could remember who the original poster was so I could credit him but that has long since slipped my memory.
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First, here is a
brief essay explaining how the existing background check system works for non-NFA firearms. This system is a result of the
1968 Gun Control Act, which in turn is
rumored to have been inspired by the
Nazi Firearms Law.
As you'll see, the system above is not a background check system and does not actually do anything to verify that the purchaser is legally allowed to purchase firearms. At best, the paper form provides evidence as to whether the purchaser lied during his purchase of a firearm; but does nothing to verify that the purchaser was not a prohibited person.
The job of determining whether a person is a prohibited person is done by the
National Instant Check System. The 1994 Brady Act proposed a requirement for a backgroundcheck on firearms purchasers to be conducted during a 5 day waiting period. However, during the debate, an amendment was proposed to replace the 5 day waiting period with the National Instant Check System (side note: Portions of the Brady Act relating to background checks were later struck down by the Supreme Court in
Printz v. United States.) The NICS system became operational in 1998.
Currently, NICS checks are only required (at the national level) when sales are made from a Federal Firearms Licensee (a gun dealer), regardless of whether that gun dealer is at a gun show, his own house, or a business. Private sales (or other transfers such as loans of firearms, gifts, etc.) do not require a NICS check unless the firearm is shipped interstate (simplified version, there are exceptions). Additionally, some states have stricter requirements that extend even to private sales.
Initially, NICS was limited to only FFLs. The concern was that unscrupulous people might use the system to conduct their own background checks on neighbors and acquaintances if the system were accessible by anyone. As a result, access to NICS is still relatively controlled. However, because NICS is conducted primarily through FFLs for privacy reasons, every NICS check also generates a Form 4473 under the recordkeeping requirements under the 1968 Gun Control Act.
EXISTING PROBLEMS WITH NICS
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In 2010,
NICS denied about 153,000 purchases (73,000 Federal and about 80,000 through State agencies) making a grand total of 2.1 million denials since NICS became operational). The most common reason for denial was a felony conviction (47%). Fugitive from Justice was the second most common reason (19%). Of the 153,000 denials - around 12,000 were appealed and later reversed.
Of those 153,000 purchases, only 4,732 were referred by FBI to ATF for further investigation (even though a prohibited person lying on a Form 4473 - which would be a part of the NICS process - is a Federal crime punishable by up to ten years in prison).
Of the cases referred to ATF for investigation, fully 26.5% of them (509 cases) turned out to be a person who was not prohibited from purchasing firearms. Of the remaining cases, ATF confiscated the firearm in 1,164 cases (same source) and prosecuted only 62 cases in 2010.
So, one thing we immediately notice with the current background check system is that even with incomplete record reporting from many states (currently seven states don't report people who are prohibited for reasons of mental illness at all), actual violations of the law in prohibited persons attempting to purchase firearms are rarely investigated. On those rare occasions where they are investigated, usually nothing more is done than to take the gun they know about. In a very tiny minority of cases, there are actual prosecutions and criminal trials.
So currently, we do absolutely nothing to stop the criminals we do catch violating the law from obtaining firearms. This is the system that some think should be expanded to cover all private sales. Some influential Second Amendment advocates (such as Alan Gottlieb of Second Amendment Foundation and CCRKBA fame) have even argued that gun owners should surrender on UBCs now while they can still get a good deal - Gottlieb's idea of a good deal being the 2013 Schumer-Toomey-Manchin bill opposed by the NRA.
WHY UBCs ARE BAD FOR GUN OWNERS:
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There are two major problems with expanding background checks to cover transfers between private parties: privacy and enforcement.
The 2013 Schumer-Toomey-Manchin bill included a telling piece of legalese that explained exactly what the goal of UBCs are ultimately. The bill expressly exempted Concealed Handgun Licensees from having to go through a NICS check - because after all, if the purpose is to make sure that a person is OK to buy a gun, a CHL does that just fine. Yet, the same bill still required that even though there would be no NICS check, a private transfer to a CHL still had to go through an FFL and have a Form 4473 filled out. So, we aren't even going to run the guy's name through the system to verify that nothing is changed; but we are going to record what gun he purchased.
And that right there is one of the major threats to privacy posed by expanding UBCs - because the Form 4473 is tied to the NICS check under the current system of laws, even though it has absolutely nothing to do with verifying whether the person is prohibited, expansion of UBCs is de-facto registration - albeit, a backwards, 1933-style, decentralized registration.
The second major threat is enforcement. Currently, no federal agency has the resources necessary to investigate even the 72,000 denials generated just at the federal level - let alone the 80,000 additional state denials. As you can see, ATF investigated only 4,732 denials in 2010 - and even after they had discarded over 60,000 denials as unworthy of further investigation,
they still ended up with 26.5% of their investigations being innocent, non-prohibited people who were not only wrongly denied a right to purchase a firearm; but then were investigated by a federal law enforcement agency for attempting to do so. Expanding that very broken system, when we already make no attempt to enforce it, is going to fail.
Even worse, it will fail in a very predictable manner. There are about 300 million firearms in the United States that have not been tracked past the point of first sale. Prosecuting someone for selling one of those without a UBC would be extremely difficult unless prosecutors can prove the transaction happened AFTER UBCs became law. Within five years, you are guaranteed to have a media worthy shooting incident where the firearm used will fall into this category. At that point, it will become obvious that under the 1968 GCA recordkeeping system - the only way to prove the crime (that you weren't going to enforce and haven't been enforcing) is to register all privately owned weapons.
Other obvious avenues for gun control will be to remove the 1933-style paper forms in favor of computerized, central registration - thus removing all of the obstacles to identifying and confiscating firearms on a mass level.
And of course, like every form of bureaucracy, once the paperwork on owning a firearm becomes burdensome enough, you will have fewer and fewer people who choose to legally own a firearm. They will either hide their firearms ownership (and quiet their anti-gun control political activity accordingly to avoid undue attention) or they will simply not become firearm owners. Over time, gun owners will simply cease to be an effective political force as their numbers dwindle. You need look no further than the National Firearms Act to see this principal in action.
Q&A
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Discussing this issue with different people at various times, I've come across various objections/questions - which I will address here:
Quote:
Fighting UBC's, as has been noted, doesn't portray the Pro gun side well. We look like we want to hide in the shadows and sell guns like dope dealers.
There are plenty of valid, legitimate reasons to oppose expanding a background check system to 300 million private citizens when we don't even enforce violations of it on the roughly 70,000 FFLs using it right now. That is a brief, factual argument that resonates and doesn't require an in-depth knowledge of gun laws to understand. Further, you have to fight on UBCs; because if you aren't willing to fight UBCs because "it looks bad" what are you going to say when they shoot up a school with a gun that nobody can prove was sold illegally after UBCs pass?
Quote:
We don't gain any more Pro 2A supporters by fighting UBC's. If you think otherwise, please explain how... I'm open to hearing it and would like to believe it; but I don't see how we do.
You certainly aren't going to expand gun ownership by making the paperwork necessary to own one legally more expansive and burdensome. Even if you think that registration of guns, gun owners and background checks for everyone is just fine and dandy - you've got to acknowledge that trying to extend a paper forms system first developed in 1933 to a population of 300 million people in the 21st century is going to make the DMV look like a joy and center of excellence in government. That isn't going to bring more gun owners into the fold.
Look at the statistics above - out of the 4,732 cases that ATF did bother to investigate, 509 of them (26.5%) had not even broken the law. You go to buy a gun at the gun store. The gun store runs a check and you are denied. You don't even make an effort to appeal (which think about that for a second - that could be as many as 26,000 new gun owners a year who are being deterred from their legal right to own a firearm just by the existing system). Despite that, you then find a Federal Agent at your door telling you that you are being investigated for a federal crime punishable by up to ten years in prison. That's what we have RIGHT NOW. Does that sound like a system that encourages future gun ownership? What happens when that system expands to every single private transfer.
Quote:
There isn't a chance in heck that the recordkeeping outlined 1969 GCA will be destroyed. Is there any meaningful litigation or piece of proposed legislation even attempting that?
The current recordkeeping system HAS to be destroyed if you really believe that surrendering on UBCs is the best thing for gun owners to do. It has no connection to actually verifying whether someone is a prohibited person. It has basically two values: A) as an enforcment tool for a crime that is rarely investigate and even more rarely prosecuted (<100 per year) B) knowing who owns what guns.
The current recordkeeping system is entirely unnecessary in determining who is actually a prohibited person and worse, it stifles the development of more forward thinking systems that could remove the ban on interstate transfers of firearms between private parties and better protect gun owner privacy.
Senator Tom Coburn proposed a UBC along these lines in 2013. After Newtown, Coburn actively worked with Schumer, Manchin and Kirk to develop a "compromise" that would extend UBCs to ALL SALES. Coburn actually covered more sales/transfers than Schumer-Toomey-Manchin would and did away with lots of meaningless paperwork that affects gun owners as well as establish the seed of an alternate system to the 1968 GCA. Schumer, Manchin and Kirk refused to accept that language and instead went after Pat Toomey to be their stooge. Coburn proposed his bill as an alternate to Schumer-Toomey-Manchin in 2013; and even after Reid promised from the Senate floor that all bills would be heard, Coburn's bill never got a vote or was even brought up for consideration (again choosing to push a bill that favored more recordkeeping and fewer checks over a bill that expanded checks to everyone and reduced recordkeeping).
Coburn's bill was flawed in that it still relies on the 1968 GCA recordkeeping as its underlying basis (even though it streamlined a lot of those records) and it still has the same problems with non-enforcement creating opportunities for worse gun control; but it shows some innovative thinking on privacy as well as showing how gun ownership can be less burdensome on the paperwork side.
At the end of the day, if your fear is that like Gottlieb, you'll lose political power and be forced to accept a worse deal than what you can get now, I don't see how accepting a deal that is a clear step towards an even worse gun control law right now is going to benefit you when you lose political power in the future. And accepting any kind of expansion of UBCs based on the 1968 GCA recordkeeping is going to be worse
), or are a significant number other these "underground market" guns sold (no theft involved) into that market? If so, they had to originate in legal hands, and at some point leave legal hands and enter prohibited ones.
