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Explaining the Objections to Background Checks

DOL Press

March 27, 2016

Guest post by Keith Coniglio, Good friend and fellow 2A advocate

Gun owners’ opposition to background checks is probably the most difficult position for non-owners (and even some owners) to fathom.  They’re supposed to prevent “people who shouldn’t have them” from getting their hands on guns – or at least that’s what we’re told.  But the objection isn’t about what they’re supposed to do, it’s the fact that they have been used to deny an increasing number of people their second amendment rights, long after the headlines over their passages fade.  They’ve not only been used to deny purchases, they’ve been used to force the surrender of arms that had  been legal for decades, only to be reclassified long after the purchase and with no wrongdoing by the owners.

Often, this devolves into pro-gun rights activists chanting “registration is confiscation” while anti-rights activists respond with cries of, “Paranoid gun nuts!”  What we hope to accomplish in this piece is to explain the mechanics of how a background check works, what becomes of that information, and how it has come back to harm those who go through the process.

The Cliff Notes version is that, to an extent, both sides are right.


Understanding the Process

To understand the distrust and objections, you must first understand how the process works.  Since November of 1993, any commercial purchase – and, in many states, any private transaction – requires a National Instant Criminal Background Check System (NICS) check to be performed by a Federal Firearms Licensee (FFL).

[NOTE: The “internet loophole” is a deliberate misstatement.  All communication regarding gun sales can absolutely be made online, just as with any communication about any subject.  But, unless the seller is deliberately seeking to violate federal law, any gun crossing state lines must then be shipped to an FFL in the buyer’s state.  The FFL then performs a background check.  If both buyer and seller are in the same state and that state does not require background checks for private sales, then no FFL involvement is legally required and no law has been broken.]

This background check process begins with the purchaser filling out a federal form known as a “4473.” The 4473 requires the buyer to provide personally identifying information such as full name, address, and state-issued driver’s license number.  There is a field for social security number, which is currently optional.   The seller then fills out the remainder of the form (viewable here), which includes the make, model, and serial number of the firearm(s) being purchased.

The information from the 4473 is provided by phone or computer (where online submission is an option) and a NICS check is run.  If approved, a unique authorization code is generated for the transaction and provided to the FFL for their records.

Federal law requires the FFL to retain the 4473s for completed transactions for twenty years, and 4473s for potential buyers who decided not to complete the transaction for five years.  There is no retention requirement beyond these periods.  However, the National Shooting Sports Foundation states in its FFL information sheet that the “ATF prefers that these records be retained.”

During the twenty years that the records are required to be stored, they can be inspected annually by agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE or, more commonly, the ATF).  By law (27 CFR 478.23(d)), agents are not legally allowed to copy/scan/photograph records unless it is part of an active criminal investigation.

When the FFL eventually goes out of business or has its license revoked, all records – including all 4473s in their log book – must be surrendered to the ATF.

Objection One: Abuse of the System

The unique identifying record that ties a specific firearm to a specific individual is required by federal law to be destroyed after 24 hours.  However, not long after the system was implemented, it was found that the Department of Justice under then-Attorney General Janet Reno had been keeping such records for several months for “audit purposes.”  Since then, there has been a persistent, recurring effort to remove the retention limit from existing law.  In 2009, Senator Frank Lautenberg introduced SB 2820, which would allow the DoJ to keep those records “indefinitely.”  In 2013, Representative Barbara Lee introduced HR 661, which would also remove the requirement.

Of course, even when that transactional record is deleted, the information is available for twenty years – or longer – through ATF inspections and surrendered records.  While ATF agents are not legally allowed to copy or remove records unrelated to a specific investigation, incidents of this taking place are not uncommon.  In fact, a consulting group created to help FFLs stay in compliance with regulations specifically offers advice regarding how to behave when it occurs.  The advice, essentially, is that the agents should be allowed to do what they will, and the matter will be taken up in the courts later – after the records have been copied or removed.

The only thing preventing the existence of a decades-long (assuming laws are not amended to allow indefinite retention) federal record of individual and specific firearm ownership is private transactions taking place in states that do not require background checks.

This is what is meant by “background checks are registration.”

Defining the Terms

A frequent counter to concerns about registration is simply, “So what?  If you have nothing to hide, you have nothing to fear.”  That sounds logical but ignores some important things.  The first is that it’s completely irrelevant – a Constitutional right should not have a scrutiny clause for its exercise.  The second is that it’s a frankly offensive and insulting stance, implying that opposition could only mean that you are in the wrong or somehow “up to something.”  And, finally, it’s factually incorrect.  Because, while we shouldn’t have anything to fear, the history of gun law implementation shows that innocence is a relative term that can be redefined at the whim of a legislator (or sometimes even just a police administrator).

For well over a century, firearm laws “for the common good” have been used to reduce who is eligible to exercise their Constitutional right.  In some cases, new regulations were implemented, requiring permitting criteria to be met – and often prohibitive fees to be paid – for continued legal possession of already-owned guns.  In others, the class of “prohibited persons” was expanded to include people that were previously considered legal gun owners (Supreme Court Justice Clarence Thomas recently had something to say about this), requiring the immediate transfer of ownership or surrender to authorities of all firearms.  In still others, classes of firearms were redefined – a person could still own a gun… just not one they’d owned for years because it was now banned.  In each case, the only way to determine that you, personally, needed to be brought into compliance with the new law was by consulting registration rolls – local, if available, or through federal 4473 records.

The dictionary definition of “confiscate” is to seize private property by public authority, and this is the scene envisioned when people mention confiscation.  But it would be dangerous, expensive, and inefficient to literally send officers to the homes of thousands of gun owners to physically do so.  What actually happens is that registration records are consulted by state or municipal authorities to identify affected owners.  A letter from government attorneys is then sent, advising the registered owner of the change in law, and ordering them to either prove that the firearm was sold outside of the jurisdiction or to surrender it to the local police.  It is made clear that failure to do one or the other will result in arrest and prosecution.

Being law-abiding, most gun owners begrudgingly comply rather than ruin their lives with a criminal charge (which would preclude them from owning other firearms in the future).  The pool of holdouts is usually small enough that sending law enforcement becomes less dangerous, and the expense is well worth the psychological effect of using overwhelming force to make an example of the scofflaw.  There is also the added advantage of making the firearm seizure incidental to an arrest rather than the whole point, avoiding the textbook definition of “confiscation.”

Despite semantics, forced disarmament under threat of confiscation is confiscation, and the existence of registration rolls has been instrumental in these actions.

Objection Two: Abuse of the System… Again

New York City has witnessed just about every form of abuse, and will make for a good case study.

Prior to 1911, residents of NYC could own a pistol and carry it concealed, if they so chose – and many did so, given the pervasive violence and crime perpetrated by various ethnic gangs.  However, those same gangs also served as bodyguards and enforcers for the corrupt leadership of the Tammany Hall political machine.  One such Tammany Hall politician was Timothy Daniel Sullivan.

Involved in everything from prostitution and gambling to extortion and election fraud, “Big Tim” Sullivan found a clever way to give himself an edge over his political opponents.  Under the guise of “public safety,” he was able to lobby state lawmakers into passing the Sullivan Act, which required New Yorkers to obtain a police-issued permit for handguns (along with any other weapon that could be concealed in a pocket).

In theory, anyone in New York City could still own a pistol and carry it.  In practice, such permits became the nearly exclusive perk of Sullivan and his cronies, who all but owned the NYPD.  The “right” criminals got permits.  The “wrong” criminals found ways around the law.  Truly law-abiding citizens who relied on carrying a gun for self-defense were disarmed or faced a felony conviction.

Today, New York City pistol permits – permits simply to own, not carry, a handgun – cost approximately $450.  The fees are non-refundable, and denial rates can run over thirty percent, depending on the county.  You must provide photographs, proof of citizenship (this is apparently only racism when applied to voting), proof of residence, an Affidavit of Familiarity with Rules and Law, and an Affidavit of Cohabitation to be filled out by anyone over the age of eighteen who lives with you.  These must be notarized and turned in, in person, at One Police Plaza in Manhattan (you cannot merely go to your local police precinct) between 8:30am and 3:00pm, Monday through Friday.

You will now wait up to three months for the next phase, at which point you will be advised of the officer who will interview you for suitability.  You will schedule that face to face interview and find out if any additional documentation is required.  You will need to provide personal reference letters from at least three people who have known you at least two years.  During the interview, you will be asked a battery of questions regarding why you want a gun, what you plan on doing with it, if you’ll be transporting it, and if you’ve ever been the victim of a crime.  After another one to three months, you will get a letter with the interviewer’s determination.

If you are approved, you will then be required to travel once again to One Police Plaza and pick up your license in person, along with your Purchase Authorization – which is good for 30 days.  The one gun you purchase – you will not be able to get another for a minimum of 90 days – must be NYC compliant, and the FFL selling it must fill out the authorization form.  Once you purchase the gun, you must again return to One Police Plaza to have it inspected and the serial number recorded on your license (check it carefully, as any typo or mismatch between the gun and your paperwork can lead to your arrest).  You may now purchase ammunition for that caliber.

In contrast, Colorado’s process for purchasing a pistol is… go to the store when the whim strikes you, have a background check performed by the FFL, then leave with your gun.  Local law enforcement doesn’t care about the transaction, unless it’s a particularly cool gun, in which case they might ask permission to shoot it with you.  You may buy as many as you can afford, as often as you wish, and can buy any ammunition at any time for any caliber that strikes your fancy, in as large a quantity as you desire.

But, Wait – There’s More (Abuse)!

Returning to our New York case study, in 1967, then-mayor John Lindsay signed into law a long gun (rifle or shotgun) registration ordinance passed by the New York City Council.  From that point forward, anyone seeking to possess any rifle or shotgun within the city limits merely had to register it by make, model and serial number to obtain a permit for legal ownership. The fee was set at very “reasonable and common sense” $3.  Gun owners were promised that registration rolls would never be used to confiscate the firearms of law-abiding citizens.  Bill sponsor City Councilman Theodore Weiss vowed that that the fee would never be raised, and that “the city would always bear the brunt of the real costs of administering the law.”

Immediately after passage of the law, Mayor Lindsay proposed amendments to increase the fee to $25.  As of this writing, the cost is approximately $230 ($140 for the application fee and $90 to process fingerprints).  So much for a politician’s promise.

Then, in 1991, Mayor David Dinkins signed a City Council bill banning the possession of many semi-automatic rifles, claiming they were a now considered “assault weapons,” a term recently defined but now codified in NYC Administrative code, S 10-303.1. The registration rolls established in 1967 – the same rolls that “would not be used to confiscate the firearms of law-abiding citizens” – were used to identify the owners of such arms, which had been legal just the day before.  Another promise broken.

2,340 citizens received letters demanding the forced sale or surrender of the guns.  A Staten Island man who announced his refusal to comply was the subject of a police raid. He was arrested, and his guns were seized.

In 2006, NYC Administrative code S 10-306 was added, outlawing any “ammunition feeding device greater than five rounds.”  This further reduced the number of formerly-legal rifles that could continue to be possessed, but no real enforcement effort was attempted until the passage of the statewide “SAFE Act” law in 2013.  Then, once again, the records that “would not be used to confiscate the firearms of law-abiding citizens” were consulted and “sell or surrender the guns we know you own” were sent out to New York City residents.

Guns were being confiscated – again – even if doors weren’t being kicked in.

Objection Three:  It’s All For Nothing

We’ve shown precisely how universal background checks are used as a direct form of registration, and have illustrated how, in the lifetime of anyone old enough to read these words, registration rolls have been used to disarm citizens – people just like you, who have committed no crime and done no wrong – under threat of legal action.

This sort of codified abuse would be unacceptable even if background checks achieved what they promise.  But, adding insult to injury, they do not.

Background checks are sold to the public as a means of ensuring that “folks who shouldn’t have guns can’t get them.”  But that doesn’t happen.  According to the Department of Justice, 2010 saw 72,659 denials… out of 6,037,394 NICS checks.  That means only 1.2% of all attempted commercial purchases were denied.

Of those 72,659 denials, 47% (or 34,459 people) were under felony indictment or had a felony conviction, 19% (or 13,862) were fugitives, and 11% (or 7,666) were prohibited by their state law.  However, only 13 of them were ever successful prosecuted.

That’s not a typo; there’s no missing percent sign.  13 people out of 55,987 faced justice for violating the background check laws – translating to 55,974 felons, fugitives, and other denied parties simply going about their business that year.  This hardly seems like an effective public safety tool.

Now consider the people who did pass their background check:

  • Colin Ferguson, perpetrator of the 1993 Long Island Rail Road massacre in which six were killed and nineteen were wounded;
  • Seung Hui Cho, the 2007 Virginia Tech shooter who killed thirty-two and wounded seventeen;
  • Nidal Hasan, who murdered thirteen fellow soldiers at Fort Hood in 2009;
  • Jared Loughner, who shot Congresswoman Gabrielle Giffordsin 2011, killing six and wounding thirteen others in the process;
  • James Holmes, who killed a dozen Aurora Theater moviegoers in 2012;
  • Aaron Alexis, who murdered a dozen people at Washington Navy Yard in 2013;
  • Karl Pierson, who murdered a fellow student at Arapahoe High School in 2013;
  • Elliot Rodger, who fatally shot, stabbed, and ran over six victims, injuring another fourteen during his Isla Vista spree in 2014;
  • Dylann Roof, who killed nine church goers in Charleston in 2015.

And before you ask, there are others.  Background checks don’t “stop” anything.  All they do is create a record that can be exploited to disarm citizens years after the promises are forgotten.

The Bottom Line

As we said at the start, both sides of the argument are right, to an extent.

Background checks create a record of which specific firearms are owned by which specific citizens.  Those records have been used – repeatedly, recently, and not just in New York – to force such citizens to surrender or sell their firearms.  This isn’t opinion, propaganda, ignorance, or delusion – it’s all verifiable and part of our legal and historical record.

And when a segment of society is repeatedly targeted and abused by a system, it is natural for that segment to be suspicious and distrustful – paranoid, even – of any attempt to expand that same system.  We gun owners are somewhat paranoid about the matter.  But it is perfectly justifiable paranoia, given our irrefutable treatment.

We hope all of this has provided you with food for thought and that you’ll join us in opposing the use – especially the mandated use – of background checks.  But if you need any further persuasion, we’d like to offer one more thing.

Go re-read the section on the process required to purchase a single pistol in New York City.  Now imagine it all – the months of waiting, the documentation required, the travel back and forth from your home borough to Manhattan, the subjective interview, the time limit if permission is granted by some bureaucrat – applied to any other Constitutionally-protected right we enjoy as Americans.

You don’t need to have something to hide to have much to fear.

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