Since the establishment of the National Instant Criminal Background Check System (NICS) in 1998, federal law has required firearm dealers to conduct computerized background checks on all individuals to whom they sale, trade, or otherwise transfer firearms, regardless of whether the transfers take place at gun stores or gun shows. The checks determine whether a prospective purchaser is prohibited under federal law from possessing firearms or ammunition.
Federal law allows a person to occasionally sell a firearm from a personal collection without becoming a dealer, and such individuals account for a small percentage of firearms sold at gun shows. Thus, soon after the establishment of the NICS, gun control supporters began demanding that Congress “close the gun show loophole,” which led some people to incorrectly infer that background checks were not required even on sales of firearms by dealers at gun shows.
Meanwhile, studies by the Bureau of Justice Statistics in 1991 and 1997 had found that less than one percent of state prison inmates incarcerated for gun crimes had acquired their guns at gun shows, including acquisitions from both dealers and non-dealers.
For decades, many criminals who have acquired guns have done so through theft or black market transactions. Today, however, many criminals obtain their guns from “straw purchasers” — people who can pass a background check, that criminals hire or enlist to buy guns for them. Thus, today as always, the vast majority of criminals obtain guns in ways that a background check requirement cannot prevent.
"Universal" Background Checks
Nevertheless, gun control supporters are calling for all transfers of firearms — even sales, gifts, and trades between family members, friends, co-workers, neighbors and other personal acquaintances — to go through a background check.
However, gun control supporters have also called for legislation to require the FBI to retain records on people who pass background checks to acquire firearms, and for the confiscation of handguns and “assault weapons,” and they have said that registration is a prerequisite to confiscation. Therefore, it’s fair to assume that they are currently calling for “universal checks” as a first step toward a more sinister goal.
That suspicion is buttressed by a recent white paper prepared for the president by his Department of Justice, which theorized that the effectiveness of a universal background check requirement would depend in part upon requiring gun registration.
The National Instant Criminal Background Check System (NICS), which became operational in November 1998, verifies that a person seeking to buy a firearm from a gun dealer is not prohibited from doing so by law.1
Federal and state restrictions on sales, trades, gifts or other transfers of firearms include:
- Anyone engaged in the business of buying and selling firearms for profit must be federally licensed as a firearm dealer (FFL). A dealer must maintain a record of every firearm received from, or transferred to, another person or dealer.
- Anyone who purchases a firearm from a dealer must pass a NICS check.
- It is against the law for anyone to transfer a firearm or ammunition to anyone known or believed to be prohibited from possessing firearms or ammunition.
- It is against the law (with rare exceptions) for anyone to transfer a handgun to a non-dealer who resides in another state.
- It is against the law for a non-dealer to transfer any firearm to a non-dealer who resides in another state.
- Anyone who acquires a firearm from a dealer is required to sign a federal Form 4473, stating under penalty of law that he or she is the actual buyer of the firearm. This is particularly relevant to the question of straw purchasers2 — persons who can pass NICS checks, and thereupon buy firearms for prohibited persons.
- Dealers are prohibited from selling handguns to persons under age 21, and selling rifles or shotguns to persons under age 18. It is illegal for anyone to provide a handgun to a juvenile (person under age 18), and juveniles are prohibited from possessing handguns, with limited exceptions.
Where do criminals get guns?
As noted above, most criminals acquire their guns through theft or black market transactions, or from personal acquaintances, such as “straw purchasers.” Thus, the vast majority of criminals obtain guns in ways that a background check requirement cannot prevent.
- 46.3% of firearms traced by the BATFE in relation to firearm trafficking investigations originated with straw purchasers.3
- More recently, a Bureau of Justice Statistics survey of state prison inmates convicted of firearm crimes found that 79 percent acquired their firearms from “street/illegal sources” or “friends or family.” This includes theft of firearms, black market purchases of stolen firearms, and straw purchases. The survey also found that 12 percent obtained their firearms from firearm dealers (gun stores, pawn shops), while only 1.7 percent obtained firearms from anyone (dealer or non-dealer) at a gun show or flea market.4
- The FBI’s National Crime Information Center stolen firearm file contained over 2 million reports as of March 1995, and an annual average of 232,400 firearms were stolen between 2005 and 2010.5
- In 1991, the Bureau of Alcohol, Tobacco and Firearms reported that 37% of armed career criminals obtained firearms from street sales, 34% from criminal acts and associates, 8% from relatives, and only 7% from dealers and 6% from flea markets and gun shows.6
- In 1985, the Department of Justice reported that only about one in five convicted felons obtained guns through legal channels such as retail stores.7
Where do law-abiding gun owners acquire guns?
A survey of gun owners, conducted for the Police Foundation and often misconstrued by gun control supporters, concluded “The predominant sources of guns, unsurprisingly, were stores (60 percent). Other important sources included family members and acquaintances.8
Based upon that survey, gun control supporters have claimed that 40 percent of firearm transactions take place without a background check, with one anti-gun group falsely claiming that some transactions take place “with the added anonymity of the internet.”9 The Washington Post, which almost never holds gun control supporters accountable for their false or misleading claims, gave President Obama “2 Pinocchios” for repeating the 40 percent claim.10
Of course, stores (dealers) are required to conduct NICS checks already, and people are likely to know whether family members and acquaintances are prohibited from possessing firearms. Furthermore, only four percent of gun owners in the Police Foundation survey acquired guns from dealers and non-dealers at gun shows and flea markets, and three percent did so “through the mail” (which, as the study noted, requires a NICS check through a dealer). Acquisitions from strangers are the exception, not the rule.
The claim about the “anonymity of the internet” is false. A dealer is prohibited from transferring a firearm to a buyer who is not a dealer, unless the buyer appears in person and presents ID, for purposes of signing the Form 4473 and running the mandatory NICS check.
Additionally, while anyone can advertise a gun on the internet, a seller who is not a dealer is prohibited from selling a firearm to a resident of another state without going through a dealer, and cannot mail or ship a firearm to another person other than a dealer. As the Police Foundation survey noted, “The 3 percent of respondents who indicated that they obtained guns ‘through the mail’ (which is illegal for all but FFLs) may have misremembered or may have referred to a mail-order purchase arranged through an FFL.”
Would prohibiting private sales reduce crime?
California prohibited private sales of handguns in 1991 and rifles and shotguns in 1994, along with imposing mandatory handgun registration, and rifle and shotgun sale recordation. But the sharp increase in crime that took place prior to those laws, and the return of the crime rate to pre-surge levels, concurrent with the imposition of those laws, was accounted for mostly by juveniles, who are already prohibited from buying or possessing handguns. According to the California Department of Justice:
Between 1986 and 1999 the crime rate increased (peaking in 1991 nationally and in 1992 in California) and then decreased. The increased crime rate was largely due to the crack cocaine epidemic, while the subsequent decrease was largely related to the decline in the use of crack. The use of handguns by juveniles and youth (increasing then decreasing) accounted for most of the changes in the rate of violent crime. Violent crime by adults over 30 years of age and property crime by individuals of all ages did not go through this cycle of increase and decrease, and generally decreased over the entire period.11
The nation’s violent crime rate peaked in 1991, and declined 18 of the next 20 years, 49 percent overall, to a 41-year low in 2011.12 No one seriously believes that requiring background checks on firearm sales by dealers (which gun control supporters claim accounts for only 60 percent of sales) played a significant role in that decline. In its annual crime reports, the FBI lists factors that determine the type and volume of crime in a jurisdiction, and guns and gun control do not appear on the FBI’s list.13 Studies, for Congress, the CDC, and the NIJ, of more intrusive gun control restrictions, have found no evidence that any of them reduced crime.14
Do gun control supporters have an ulterior motive?
Is it reasonable to conclude that gun control supporters believe that subjecting all firearm sales to NICS is a necessary step in the direction of gun registration? And, if so, that they see registration as a prerequisite to the confiscation or some or all guns?
In 1976, the chairman of the National Council to Control Handguns — later renamed Handgun Control, Inc. and now known as the Brady Campaign — said:
The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal.15
Currently, the FBI is not permitted to retain records on persons who pass NICS checks. However, in 2009, Sen. Frank Lautenberg (D-N.J.) introduced legislation, co-sponsored by handgun and “assault weapon” ban advocate Sen. Dianne Feinstein (D-Calif.), proposing that the FBI retain such records for 180 days.16 In 1995, Feinstein said about “assault weapons,” “If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them, Mr. and Mrs. America turn them all in, I would have done it.17 And in 2012, she said that she might introduce legislation requiring owners of “assault weapons” to turn them over to the government within the framework of a “buy-back.”18