February 13, 2013
Dear Senator:
There has been a great deal of discussion recently surrounding the issue of requiring background checks for firearms purchases. We wanted to take this opportunity to explain some of the history behind this issue; how the system works today; and proposals to expand background checks beyond their current application.
The National Rifle Association supported the establishment of the National Criminal Instant Background Check System (NICS) [6], and we support it to this day. At its creation, we advocated that NICS checks be accurate; fair; and truly instant. The reason for this is that 99% of those who go through NICS checks are law-abiding citizens, who are simply trying to exercise their fundamental, individual Right to Keep and Bear Arms.
Since 1986, those engaged in the business of selling firearms for livelihood and profit have been required to have a Federal Firearms License (FFL). All retail sales of firearms currently require a NICS check, no matter where they occur. While impossible to estimate exactly, the evidence is clear that an overwhelming majority of firearms sales occur through federally licensed retailers, and thus involve a NICS check—either directly at the point of sale, or through the buyer presenting a state-issued permit to purchase or carry firearms that was issued after performance of a NICS check.
Regarding the issue of private firearms sales, it is important to note that since 1968, it has been a federal felony for any private person to sell, trade, give, lend, rent or transfer a gun to a person he either knows or reasonably should know is not legally allowed to purchase, or possess a firearm. In addition, a private person may not sell any firearm to a person who is a resident of another state; nor may a person purchase a shotgun or rifle outside of his state of residence from anyone other than a federally licensed dealer.
Currently, a person who wishes to process a private firearms sale through NICS may do so, provided that he finds a federally-licensed retailer who is willing to process the transaction. This involves the retailer taking the gun into his business inventory—with all the legal liability that entails—and charging a fee for the service. There is no limit on the fee that a retailer may charge, so they often range from $35 to much higher amounts. For instance, the only federally licensed retailer in Washington, D.C. charges $125 to execute a NICS transfer, regardless of the cost of the firearm involved. For inexpensive firearms, that can easily become a punitive tax.
Federal law prohibits the following categories of individuals from purchasing firearms: felons; persons adjudicated mentally “defective” or involuntarily committed to mental institutions; fugitives from justice; persons dishonorably discharged from the military; illegal aliens and most non-immigrant aliens; unlawful users of controlled substances; persons who have renounced U.S. citizenship; persons subject to certain restraining orders; and persons convicted of domestic violence misdemeanors.[7] In attempting to keep the above individuals from obtaining firearms, however, it is important to realize that NICS is only as good as the database upon which it relies. When states fail to transmit felony and mental health records to NICS, for example, felons and the mentally incompetent fall through the cracks. Despite the 2007 passage of NRA-supported corrective legislation, the NICS Improvement Amendments Act, there remain huge gaps in the NICS database. According to a recent General Accounting Office study, as of 2011 23 states and the District of Columbia submitted less than 100 mental health records to NICS; 17 states submitted less than ten mental health records to NICS; and four states submitted no mental health records to NICS.[8] In addition, hundreds of millions of dollars have been authorized for implementation of the Act, but less than four percent of that amount has actually been appropriated.[9]
At the same time, NICS is currently bogged down by hundreds of thousands of records that it shouldn’t contain, such as veterans who have been arbitrarily disqualified by the Department of Veterans Affairs,[10] as well as records that are incomplete or inaccurate, which is “a common occurrence” according to the Department of Justice Office of Inspector General.[11] The denial rate for NICS checks is 1.14% over the history of the system. In 2011, the last year for which data is available, 18.8% of denials that were appealed were overturned.[12] Recent spikes in consumer demand have overburdened the system, which is already operating at maximum capacity. Despite the low final denial rate, eight percent of all NICS transactions cannot be resolved while the dealer is still on the phone with NICS, resulting in further delays for buyers.[13]
As noted above, all firearms sales through retailers must involve a NICS check, regardless of the location. Yet a common misrepresentation is that criminals obtain firearms through sales at gun shows. The evidence, however, does not support this claim. A 1997 Bureau of Justice Statistics survey of state prison inmates who had used or possessed firearms in the course of their 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. Only 1.7 percent obtained firearms from anyone (dealer or non-dealer) at a gun show or flea market.[14] Despite seven more years’ experience with NICS, a similar 2004 survey, analyzed by some of the leading academic supporters of restrictive gun control, produced nearly identical results.[15] 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.[16] Thus, the vast majority of methods criminals use to obtain firearms are already illegal.
In the rare event that a prohibited person does attempt to purchase a firearm through a NICS check, it is worth noting that submitting false information on the federal firearms purchase form is a felony. In 2010, the FBI denied 72,659 NICS checks out of a total of 14,409,616. But only 62 of these cases were actually prosecuted, and only 13 resulted in a conviction.[17] The reason, according to Vice President Biden, is that “we simply don’t have the time or the manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.”[18] Unfortunately, this means that prohibited persons who are caught by NICS are being turned away to obtain firearms elsewhere, rather than being prosecuted to the fullest extent of the law.
Clearly, NICS is not working as intended. Yet rather than focusing on ways to improve the current background check system, which the NRA fully supports, some are insisting on an immediate and dramatic expansion of the system, through calls for so-called “universal” background checks.
While the term “universal background checks” may sound reasonable on its face, the details of what such a system would entail reveal something quite different. A mandate for truly “universal” background checks would require every transfer, sale, purchase, trade, gift, rental, or loan of a firearm between all private individuals to be pre-approved by the federal government. In other words, it would criminalize all private firearms transfers, even between family members or friends who have known each other all of their lives. While discussions of this issue have often included an exemption for some limited category of individuals, those exemptions raise their own definitional issues, such as defining “friends” or the scope of “family.” Recent legislation enacted in New York, for example, defines family in such a limited fashion that transfers between siblings are not exempt, nor may a son or daughter transfer a firearm to a parent.
Of course, exempting any category of individuals from a “universal” background check system ensures that such a system is not truly “universal.” And even if no law-abiding citizens are exempted from the system, the vast majority of criminals will never submit to background checks, but will continue to obtain firearms through theft or other illegal means. While mentioned earlier, it bears repeating here that 99% of those who go through NICS checks are law-abiding citizens, so whatever requirements the system includes disproportionally affect millions of good, honest people who are simply trying to exercise a constitutional right.
Regardless of the manner in which a “universal” background check system is constructed, it is also important to understand what would be required for such a system to actually be effective. According to a January 2013 report from the U.S. Department of Justice’s National Institute of Justice, the effectiveness of “universal background checks” depends on requiring gun registration.[19] In other words, the only way that the government could fully enforce such a requirement would be to mandate the registration of all firearms in private possession – a requirement that has been prohibited by federal law since 1986.
Finally, it bears noting that criminalizing private firearm transfers through a system of “universal background checks” would not have prevented any of the tragedies that have spurred the call for such legislation. Even if accompanied by a change in federal law to require gun registration, most criminal possession of firearms would remain outside of such a system. That’s not to mention that until the necessary records on prohibited persons – including felons, the dangerously mentally ill and others – are transmitted to NICS, the background check system we currently have cannot function as intended, much less a system that is dramatically expanded to include tens of millions of new transactions. The concept of “universal background checks,” therefore, would only incur massive cost and bureaucracy; would not work without a change in long standing federal law to require gun registration; and would unduly burden law-abiding citizens from exercising their fundamental Right to Keep and Bear Arms.
The NRA stands ready to support meaningful efforts to improve the current NICS system, so that it meets its original goals of being accurate, instant and fair. We cannot, however, support a dramatic expansion of NICS under the misleading label of “universal background checks,” which unfairly criminalizes the private transfer of firearms between law-abiding citizens, while failing to address the reality that most criminals don’t – and won’t – submit to the system. More importantly, an expansion of NICS in this manner would also fail to address the root causes of unlawful criminal activity or other incidents of mass violence.
Should you have any questions on this or any other issue, please do not hesitate to contact me or NRA Federal Affairs at 202-651-2560.
Sincerely,
Chris W. Cox
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[1] NRA supported instant check bills introduced by then-Rep. Bill McColllum (R-Fla.) in 1988; Rep. Harley Staggers (D-W.Va.) in 1989; and the 1993 amendment to the Brady Act which mandated the establishment of NICS.
[2] http://www.gao.gov/assets/600/592452.pdf
[3] Caroline Wolf Harlow, “Firearm Use by Offenders,” Bureau of Justice Statistics, (11/01, 189369).
[4] http://www.fbi.gov/about-us/cjis/nics/reports/2010-operations-report/2010-operations-report-pdf
[5] Greg Ridgeway, “Summary of Select Firearm Violence Prevention Strategies,” National Institute of Justice, 1/13.
[6] NRA supported instant check bills introduced by then-Rep. Bill McColllum (R-Fla.) in 1988; Rep. Harley Staggers (D-W.Va.) in 1989; and the 1993 amendment to the Brady Act which mandated the establishment of NICS.
[7] http://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet
[8] http://www.gao.gov/assets/600/592452.pdf
[9] http://www.fas.org/sgp/crs/misc/RL32842.pdf, Table 7, pg 33, accessed 2/7/2013
[10] http://www.veterans.senate.gov/rankingmember/ranking-press-releases.cfm?action=release.display&release_id=24eda349-fc49-4503-9c7b-f69bd3e9317d, accessed 2/6/2013.
[11] http://www.justice.gov/oig/reports/ATF/e0406/results.htm#prohibit accessed 2/6/2013
[12] http://www.fbi.gov/about-us/cjis/nics/reports/2011-operations-report/operations-report-2011 page 14
[13] http://www.fbi.gov/about-us/cjis/nics/reports/2011-operations-report/operations-report-2011 page 13.
[14] Caroline Wolf Harlow, “Firearm Use by Offenders,” Bureau of Justice Statistics, (11/01, 189369).
[15] Daniel W. Webster, et al., “Preventing the Diversion of Guns to Criminals through Effective Firearm Sales Laws,” in Daniel W. Webster and Jon S. Vernick, eds., Reducing Gun Violence in America 110 (2013).
[16] Marianne W. Zawitz, “Guns Used in Crime,” Bureau of Justice Statistics, (7/95, NCJ-148201) and Lynn Langton, “Firearms Stolen during Household Burglaries and Other Property Crimes 2005-2010,” Bureau of Justice Statistics, 11/12. See also “Guns in America: A National Survey of Private Ownership and Use of Firearms,” 5/97.
[17] http://www.fbi.gov/about-us/cjis/nics/reports/2010-operations-report/2010-operations-report-pdf
[18] http://dailycaller.com/2013/01/18/biden-to-nra-we-dont-have-the-time-to-prosecute-people-who-lie-on-background-checks/
[19] Greg Ridgeway, “Summary of Select Firearm Violence Prevention Strategies,” National Institute of Justice, 1/13.