The Case Against Universal Background Checks

After mass shootings, such as those in Uvalde, Texas and Buffalo, New York, there are widespread calls for the adoption of many national gun control measures, such as universal background checks (UBCs), which have been adopted by 22 states and the District of Columbia. Leading gun control organizations (Sandy Hook Promise, Everytown, Giffords Law Center) support background checks.

Federal law does require background checks, but only for guns purchased through licensed dealers. This fails, however, to cover any gun transfers that occur through private transactions between individuals and those sold at gun shows, which is known as the “gun show loophole.” Advocates of universal background checks want to close this loophole and require that the background checks be universal – cover all sales.

Although this seems like a good idea, there are many problems that make this proposal untenable.

Effectiveness. The current background check system covers approximately 80% of purchasers and it is not clear that UBCs would stop any mass shootings. The gunman in Buffalo passed a background check and there isn’t any reason to believe that the Uvalde, TX killer would not have passed the check.

Practical implementation. Many guns are bought as gifts and given to others, including family members; it’s simply impractical to implement.

Enforcement. Even individuals who belong in a background check database often do not end up in it.

German Lopez, 11-7-17, Vox, America’s Poor Enforcement of Its Gun Laws Contributes to Mass Shootings, https://www.vox.com/policy-and-politics/2017/11/7/16617488/air-force-sutherland-springs-texas-church-shooting

America’s poor enforcement of its existing gun laws seems to have contributed to yet another atrocity. We now know how Devin Kelley, who was previously convicted of domestic abuse while he was in the Air Force, was able to purchase guns and on Sunday kill 26 churchgoers in Sutherland Springs, Texas. After Kelley was court-martialed, sentenced to 12-months confinement, and received a bad-conduct discharge, the Air Force failed to enter his record in the National Criminal Information Center database — even though Pentagon guidelines require the Air Force to do so. Based on these facts, this particular tragedy may have been prevented with better enforcement of existing military guidelines and federal law. This gets to one of the fundamental problems in America’s gun laws: It’s not just that they are generally laxer than other developed countries’ laws; they are also poorly applied and enforced. This isn’t even the first time poor enforcement seemingly made a mass shooting possible — with previous failures contributing to the mass shootings at Virginia Tech in Blacksburg and a church in Charleston, South Carolina. How the Air Force failed Under federal law, Kelley should have been barred from obtaining a firearm after he was convicted of two counts for assaulting his spouse and their child. Geoffrey Corn, a former Army lawyer and professor at the South Texas College of Law in Houston, told the Washington Post that Kelley’s sentence effectively acted as a felony conviction for domestic abuse, which should have prevented him from buying a gun. But, he said, there seems to be confusion within the military about which convictions to report. The Air Force’s failure effectively erased Kelley’s record for the purposes of a federal background check to purchase a firearm. And that seemingly allowed him to purchase guns — at least two from retailer Academy Sports, although it’s unclear if those were the guns used in the Texas shooting, according to the Post. The Air Force will reportedly conduct a review of its “relevant policies and procedures.” But as ProPublica reported, this has been a problem for years — going back to a 2015 Pentagon report — and the problems have persisted. And it’s not just a problem in the Air Force and military. Federal gun laws are poorly enforced Poor enforcement is a huge problem with US gun laws. As the Air Force situation shows, the system relies on people properly reporting to the right database. This has always been a problem — not just for branches of the military, but even entire state agencies. In 2007, Virginia Tech student Seung-Hui Cho shot and killed 32 people and himself at his college campus. Cho was not supposed to be able to buy a gun due to a history of mental illness. But the correct records were never sent to the FBI’s National Instant Criminal Background Check System (NICS). Since the Virginia Tech shooting, federal and state governments have taken steps to ensure more reporting is done. But as the advocacy group Giffords Law Center noted, “records of many individuals prohibited from possessing firearms because of their mental health histories are still missing from the database. The greatest gains in the numbers of state records submitted to NICS largely reflect the efforts of a small minority of states, and as of November 2013, 12 states had still submitted fewer than 100 records each.” The federal background check system is also notoriously underfunded, understaffed, and underresourced, allowing red flags to slip through. Although there are no waiting periods under federal law, a check that turns out inconclusive can be extended for three business days for further investigation. But these three days are a maximum for the government — and sometimes, the three days lapse without the FBI completing its check, and a buyer can, at that point, purchase a gun without the completed check.

Most people simply lie when filling out the background check information and are not prosecuted for doing so.

Heather Wilhelm, 11-8-7, National Review, Gun Control and Magical Thinking, https://www.nationalreview.com/article/453513/gun-control-liberals-magical-thinking

Folks, that’s an unacceptable “oops.” It also isn’t an isolated incident of negligence. This week, questions have arisen about the military’s reporting system when it comes to domestic-violence cases. Meanwhile, in an interview after the shooting, Texas senator Ted Cruz noted that in 2010 alone, “48,000 felons and fugitives lied and illegally tried to purchase guns. [The government] prosecuted only 44 of them.”

As a result of these limitations, there is arguably no reduction in gun violence

Lisa Dunn, June 25, 2020, Do Universal Background Checks Prevent Gun Violence?, https://wamu.org/story/20/06/25/do-universal-background-checks-prevent-gun-violence/

But other research has found different outcomes. The state of California has had a comprehensive background check law on the books for 10 years. Researchers at UC Davis School of Medicine have studied gun violence in CA during that period and found there was no change in the number of gun homicides or gun suicides. The researchers use the term “comprehensive background check” instead of universal background check. And another study by the same authors found that the repeal of comprehensive background check laws in Tennessee and Indiana had no effect on gun homicides or suicide rates in either state. Johns Hopkins School of Public Health looked at comprehensive background check laws in large, urban counties in the U.S. and found they were actually associated with an increase in firearm homicides in those counties. That study found “no benefit” of a CBC law without an accompanying permit-to-purchase law

Discrimination. In order for a person to be denied the sale of a gun, they would have to end up in a database with a flag that says they should not be sold a gun. Exactly what would trigger such a label? A criminal offense? Which criminal offenses? A mental illness? Which mental illnesses? Who would have the authority to diagnoses such an illness? Are minorities and/or women more likely to be diagnosed with such illnesses? Is there a process one could follow to petition to be removed from the database? At a minimum, collecting such information is arguably an invasion of privacy.

Poverty. Given that background checks add approximately $80 to the purchase price of a gun, this could disproportionately harm poor Americans.

Racism. The consequences of penalties for those who fail background checks (and other gun control laws) are likely to fall disproportionately on poor and minority communities.

Jonathan Blanks, 6-22-15, Vice.com, Gun Control will not save America from racism, https://www.vice.com/en_us/article/5gjgda/gun-control-will-not-save-america-from-racism-622

Like many criminal laws, gun control legislation has disproportionately affected black people and contributed to sky-high rates of incarceration for minorities in the US. As Radley Balko wrote in the Washington Post last year: Although white people occasionally do become the victims of overly broad gun laws…the typical person arrested for gun crimes is more likely to have [black] complexion…. Last year, 47.3 percent of those convicted for federal gun crimes were black — a racial disparity larger than any other class of federal crimes, including drug crimes. In a 2011 report on mandatory minimum sentencing for gun crimes, the U.S. Sentencing Commission found that blacks were far more likely to be charged and convicted of federal gun crimes that carry mandatory minimum sentences. They were also more likely to be hit with “enhancement” penalties that added to their sentences. In fact, the racial discrepancy for mandatory minimums was even higher than the aforementioned disparity for federal gun crimes in general. [Continues] Far too often, our gun laws and criminal laws—even when well intentioned—have disproportionately burdened the black community. As calls grow for more gun laws, let’s not compound a tragedy by continuing the same mistakes of the past.

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Con Articles

Against Universal Background Checks (2019)

Why Background Checks are not the Answer to Gun Violence (2018)

Why the Firearms Industry Opposes so-called “Universal Background Checks”

Four reasons universal background checks for gun buyers are bad ideas

Why universal background checks won’t work

This is what is wrong about universal background checks

Why Mentally Ill people are allowed to buy guns

Background checks open the door to a national gun registry

Loopholes in good laws allow criminals to skirt background checks .