The Case Against Universal Background Checks

On Capitol Hill this week, lawmakers got a visit from Attorney General Bill Barr and White House Legislative Affairs Director Eric Ueland, looking to sell them on a gun control proposal.

The proposal, an outline of which was released by the Daily Caller’s Amber Athey, parallels legislation proposed by Senators Pat Toomey (R-Penn.) and Joe Manchin (D-W.V.) in expanding federal background check requirements.

“Consistent with the Manchin-Toomey draft legislation,” the White House document reads, “a background-check requirement would be extended to all advertised commercial sales, including sales at gun shows. Background checks would be conducted either through a [Federal Firearm Licensee] or through a newly-created class of licensed transfer agents.”

Essentially, this is a universal background check requirement.

The White House quickly backtracked when the information was made public. “That is not a White House document,” said White House spokesman Hogan Gidley, “and any suggestion to [the] contrary is completely false.”

So what are we to make of the administration ostensibly supporting a plan it later disavows? Either White House Legislative Affairs and the Department of Justice have gone completely rogue, or the White House is merely testing the appetite of the Senate for action.

But either way, it’s a misguided effort. Here’s why.

The “Gun Show Loophole” Doesn’t Exist

By referring to “sales at gun shows,” the Barr proposal attempts to get at the so-called “gun show loophole.” It’s a term bandied about by anti-gun activists, which has contributed to a prevailing belief that purchases at gun shows do not require background checks. This, for the most part, is false.

All retail sales of firearms from a licensed dealer (otherwise known as a “federal firearm licensee, or FFL)—at a gun show, online, or in a backyard—require a background check. Full stop. Sales through FFLs constitute the majority of gun sales in America, some estimates put it as high as 75 percent. This is because anyone who sells guns for profit, or as a business, must register as an FFL.

Some one-off private sales, however, which are mostly regulated at the state level, may not require background checks. These types of sales make up between 10-13 percent of all gun sales.

Still, regardless of federal license, private sellers are prohibited from selling to what federal law deems a “prohibited person,” anyone under 18, or anyone who lives in a different state. Twenty-one states now require background checks for purchases of at least handguns at gun shows, regardless of the license status of the seller.

The oft-cited claim that 40 percent of gun sales are done at a gun show without a background check? Even the Washington Post had to give that one three Pinocchios.

Universal Background Checks Don’t Work

Everybody falls for universal background checks. But they don’t work.

Universal background checks (UBCs) sound good and scratch the itch of needing to “do something” that seems reasonable. Why not make everyone who buys a gun subject a background check, right?

The “universal” in “universal background check” is kind of a misnomer, considering that every retail gun purchase in America requires the purchaser to fill out Form 4473, and be subject to a federally run background check through the National Instant Criminal Background Check System (NICS).

So it’s a wild exaggeration to say that a UBC would fill a large gap, since there really isn’t one. But it’s also questionable whether a UBC actually would be effective in its stated goal: stopping criminals from getting guns.

The White House is on a fool’s errand if the administration thinks these measures will help Trump politically—or, more importantly, stop gun violence.

The NICS background check system itself is full of flaws and false positives. Law abiding citizens already get their gun rights denied because of clerical errors, or because they have the same name or biographical information as some random convicted criminals. The data is also incomplete. It’s how the Texas church shooter was able to get a weapon when he shouldn’t have been eligible.

Yet somehow, we’re supposed to believe that expanding this system will make it work even better? This is the same government that recently allowed an innocent man to spend 82 days in jail when they mistook his honey for liquid meth. In other words, Americans shouldn’t have much faith the government can get this right.

There’s also the matter of enforcement. In fiscal year 2017, the federal NICS system denied about 112,000 background checks for falsifying information (e.g., failure to disclose a felony conviction). As of June 2018, however, the U.S. attorney field offices had prosecuted only about a dozen of these cases.

New laws won’t fix the problem when we aren’t even enforcing existing ones.

This is especially true when one considers that nearly half of illegally trafficked weapons are obtained through straw purchases—the illegal practice of one person purchasing a weapon on behalf of another person. Background checks have nothing to do with stopping this practice.

It’s why California, which has had universal background checks for the last 10 years, hasn’t seen a commensurate reduction in gun homicide or suicide rates.

The reality is that criminals get their firearms from the black market. According to a Justice Department survey of prison inmates, only 10 percent of those arrested with a firearm got it from a retail source. Less than 1 percent obtained it at a gun show. But 43 percent say they got it off the street.

Focusing on prosecutions for illegal weapons, rather than expanding ineffective background checks, is one step that could actually have an impact. On that note, it’s worth pointing out that the Trump administration has well surpassed the Obama administration in going after illegal guns.

A Universal Background Check System Lacks Universal Support

While proponents of these policies trot out the statistic that 92 percent of Americans support UBCs, electoral results suggest otherwise.

In 2017, Nevada’s expansion of background checks passed by a very thin margin of 50.4 percent to 49.6 percent—with only one county voting in favor of the measure. In 2016, a similar effort was put up in liberal Maine, where a ballot measure failed by 51.8 percent to 48.2 percent. In the gun-control friendly state of Washington, a background check measure passed by only 59 percent in 2014. These are hardly the kind of margins you’d expect for a proposal rumored to have “near-unanimous” support.

Much of the hesitation with universal background checks (besides the fact they don’t prevent criminals from getting guns) is what’s necessary to implement them: a national registry of gun owners.

Contrary to popular belief, the federal government does not keep an active list of all gun owners. Or, put another way, the government does not keep a list of all Americans who are exercising their Second Amendment rights.

A federal UBC, to actually work, would require a national registry. And for years, conservatives have pointed out that this would be abused. Need proof? Look no further than the state of New York, which keeps records on all of its gun owners. A New York newspaper got its hands on this information and published the names and addresses of all the gun owners in the database.

These were law-abiding citizens, turned into victims, for the sin of complying with the law.

Also, like so many ill-conceived gun control measures, national registries have failed in the countries that have tried them—most notably in Canada.

The White House is on a fool’s errand if the administration thinks these measures will help Trump politically—or, more importantly, stop gun violence. Just like red flag laws, background checks trample on Second Amendment rights without actually solving any problems.

And that’s really the insidious part. Pushing proposals known empirically to have no effect does nothing but perpetuate the narrative that “guns are bad,” and that restricting access to them, regardless of the actual efficacy of the proposal, is somehow good public policy.

It’s not. And with enumerated constitutional rights on the line, you’d hope our policy makers would be more focused on measures that actually solve the problem of gun violence, instead of on measures which merely make them feel better.

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About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.

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