What’s Wrong With Background Checks?

The Democratic House recently passed a bill that will require background checks for private transfers of firearms. It’s now before the Senate. Not only is this law unlikely to have any effect on crime, but it also threatens other cherished Second Amendment rights more than might at first be apparent. 

Background checks for firearms sales seem like they would help keep guns out of the hands of dangerous people. After all, some people cannot legally own firearms because of their convictions for dangerous crimes, and many of these people go on to re-offend. But many times policies that have a plausible narrative do not provide much benefit in the real world. 

When Indiana and Tennessee repealed state laws requiring background checks for private sales, it had no measurable impact on the rate of gun crime. Another study found such laws may actually increase the rate of gun crime. Even the Left-leaning Rand Corporation found the evidence in favor of such expanded background checks to be “inconclusive.” 

Background checks are a bit like mask mandates: a plausible barrier to criminals obtaining guns, but useless in practice. 

A brief examination of the issue makes it plain why. Even the 1993 Brady Bill mandated that federal firearms licensees (FFL) conduct background checks on all transfers, private sales are unregulated. This is sometimes described incorrectly as the “gun show” loophole. Contrary to the propaganda, most sales at gun shows are conducted by FFLs, and all FFL sales include a background check. But, whether at a gun show or not, private sellers do not have to conduct a background check. As I was told early in the game, selling a personal gun is like selling a toaster. 

While this conjures images of shady back-alley transactions, these sales often involve family and friends, fellow collectors at a gun show, and sales to FFLs, who have already been thoroughly vetted. Most law-abiding gun owners also feel a moral obligation not to sell a gun to a wrongdoer. More important, knowingly selling a gun to a prohibited possessor is a crime—unlike selling the toaster on Craigslist.

The proposed law requires an FFL to get involved in these private transfers, even when it’s a gift from father to son. 

The New Law Is Designed to Fail

Most gun owners are familiar with FFLs. They conduct ordinary sales at gun stores and also must be involved when a gun is sold over the internet. Even though these procedures are familiar, it’s not clear they accomplish very much. The new law also is unlikely to do any good, and this appears to be on purpose. 

One reason is that there are already a large number of guns in circulation. Estimates range as high as 400 million guns within the United States. Any background check requirement would be unable to determine when a transfer took place and which guns were lawfully transferred before the law went into effect. It would only work through voluntary compliance.

Second, most criminals get guns the old-fashioned way: on the black market. Sometimes, they get their non-criminal girlfriends or relatives to buy them from a licensed dealer, i.e., an illegal straw purchase. Or they steal them or buy them from someone else who stole them. There is little reason to think new laws will present a serious obstacle to motivated violent criminals seeking to obtain a gun, any more than it stops them from obtaining drugs or other contraband. 

There is also little reason to think this law would do anything more than create a trap for the unwary and an opportunity for entrapment. Most gun owners are scrupulously law-abiding, not least because they do not want to be put on the list of prohibited possessors. Even so, many otherwise law-abiding gun owners are likely not to comply with universal background checks for a variety of reasons: because of its offensiveness to the Second Amendment, because their lack of familiarity with this change to the law, or because of the obvious pointlessness of finding and paying an FFL to transfer a gun from one lawful owner to another.

Like most gun control laws, reducing crime appears to be a secondary goal. As with the mid-1990s Assault Weapon Ban, the expansion of background checks has almost zero likelihood of affecting violent crime rates. This is not a bug, but a feature for the law’s supporters. 

An ineffective law, followed by an inevitable high-profile shooting incident, starts the gun control media cycle again. Whatever way the bad person acquired the gun will be defined as a new “loophole.” We will be told that only if some other law were in place, the crime wouldn’t have happened. This law’s predictable ineffectiveness will be blamed on the lack of a gun registry, because there is no way for authorities to determine if a transfer between private individuals took place before or after a background check law goes into effect. 

Such a registry is currently prohibited under federal law. Universal background checks would provide a ready excuse to create one. Such a registry would be a necessary step in the future to find and confiscate unregistered guns, after they’re first demonized as “weapons of war,” “Saturday Night Specials,” or some other charged term. 

Universal background checks also would have the effect of harassing and dissuading gun enthusiasts. Anything that people collect—whether it’s Beanie Babies, comics, coins, or guns—inevitably gives rise to trading and shows. This is how people of modest means don’t go completely broke in what is already an expensive hobby. Even if universal background checks do not stop a single crime, they will likely succeed in demoralizing gun owners, raising their costs, and making gun ownership less inviting to newcomers. 

Time to Be Vigilant 

A new gun control is another way for the ruling class to declare their virtue and their separation from the Neanderthals out in flyover country. Polling data shows that the Democrats are chiefly animated by raging hatred and inordinate fear of conservatives rather than traditional policy concerns. This is why so many of their current obsessions are performative and emotional, such as the overreaction to the January 6 protests. 

With the NRA beset by internal troubles, and the country has a whole weary from lockdowns, political organizing is more difficult than in years past. Senators may be as confused as Joe Biden about how real Americans feel about new gun control laws. It’s important now to let your senator know how you feel about H.R. 8.

It is also important that those on the Right do not give an inch. Universal background checks may seem logical and harmless, in light of existing background checks for federal firearms license purchases. They’re not. The freedom of gun owners to transfer guns, keep such transactions hidden from the government, and generally to have the government out of their lives is an important component of being a free people. After all, the right to keep and bear arms is not rooted in trust of the government, but suspicion of it. 

The events of the last year only reinforce how well-grounded such suspicion is. 

About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

Photo: George Frey/AFP via Getty Images

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