Thursday, February 7, 2019

Expanding Background Checks Will Accomplish Almost Nothing - There Is A Better Way

DOJ Study Shows Expanding Background Checks Would Not Affect 98% Of Criminal Gun Sources

Democrats are pushing an expansion of
background checks - even though this would only
affect 2% of criminal firearms acquisitions.
The number one priority of gun control advocates is to expand the current background check system to private sales.  This seems reasonable, and many members of the public also think that this is a good idea.  It does seem, at first thought, that expanding background checks reduce criminal's access to firearms, however this is certainly not the case.

So, how can I say with confidence that expanding background checks to private sales will accomplish little to nothing?  Well, to start with, there is US Department of Justice research that proves it.

On 1/11/2019, the US DOJ released a study based on interviews with over 240,000 inmates of state and federal prisons.  One of the primary goals of the study was to identify the source of any guns they possessed at the time of their arrest.  The result proves that gun control advocates are barking up the wrong tree.  The study revealed that the source of criminal's firearms are:

Here are the details starting with the most common sources:


The black market
supplies 43% of
criminal's guns
1) The Black Market 42%

This source consists of street dealers in firearms that intentionally sell to people who are prohibited from possessing firearms.  They are not going to do background checks on their buyers, no matter what laws are passed.

2) Other Illegal Sources 27%

This category includes being given a firearm by a family member or friend (who knew it was illegal for them to have a gun), guns bought from other criminal associates, stealing a gun themselves and guns rented from others (yes, criminals actually can and do rent guns from other criminals).  Clearly, none of these sources are going to obey a background check law either.

3) Straw Purchases 15%

This illegal source involves at least two people committing felonies under current law.  First someone with a clean record goes to a licensed gun dealer, lies on the background check form (felony #1) stating that they are the "actual buyer" of the firearm.  They then transfer the gun to their disqualified friend (felony #2), who is the actual buyer.  They could also be charged with conspiracy (felony #3).  That actual buyer commits felony #4 by receiving and possessing the firearm, and is also guilty of conspiracy (felony #5).  Note that a background check is passed in all these cases - fraudulently passed, but passed never the less.  Again, expanding background checks will have zero effect.

The first question on the required makes it clear that buying a gun
for anyone else is a crime.

4) Purchases From Licensed Dealers 8%

Every one of these transactions included a federal background check.  Some of these purchases took place made before the criminal committed their first crime, they thus passed the check.  That said, many, if not most, of these purchases involved criminals slipping through the background check system.  The problem is that as many as 1/3 of prohibited persons are not in the system - meaning if they go to a dealer, lie on the form and have a one in three chance of walking out with a gun.  Even though this involves committing a felony, they have little to lose,  This crime is prosecuted in well under 1 in 300 cases.  Pres. Obama's ATF Chief testified before congress that prosecuting such "lying and trying" crimes was "a waste of resources".  Never mind that prosecuting such crimes might deter criminals from trying to slip through.  The problem here is not the lack of background checks, it's a badly flawed database and lack of enforcement.

Felons and others prohibited from owning firearms can simply lie in answering the question above (a felony)
and if they are denied they are almost never prosecuted. Why do it?  Simple - they have a good chance of slipping through.

5) Other Sources 6%

This was a catch all category for sources that did not fit into any other category.

6) Private Party Purchases 2%

These purchases were made legally, from a private party who did not know that the person was prohibited by law to own or purchase firearms.  This 2% is what gun control advocates try to sell as the whole problem.  Fix this "loophole" and guns will not get into the wrong hands.  Yeah, right.........

It should be obvious to everyone that even if ALL of these purchases could be eliminated and NONE of these criminals who were stopped from buying guns from private parties turned to other sources for their guns (totally impossible), the largest impact on gun violence would be 2%.  That is within the margin of error of most studies.  It would be effectively unmeasurable.

Of course, this DOJ survey shows that there are lots of other sources criminals could and likely would turn to.  Few if any criminals would be stopped from accessing firearms. 

Why Do So Few Criminals Get Guns From Private Sellers?

Evidence is that most private sellers are very
careful about whom they sell firearms to.
The answer is as simple as it is controversial: Most gun owners are very law abiding.  They therefore do not want to sell guns to criminals.  They know it is a crime to knowingly sell to a criminal or other prohibited person - and that they could be prosecuted even if they unknowingly do so.  Even more significantly, most gun owners do not want to supply a firearm to a criminal.  As a result, most private sellers are extremely careful whom they sell to.

I recently posted a "poll" on the Clergy in Support of the 2nd Amendment Facebook page.  The poll asked if responding gun owners would use the NICS background check system if it were made available to private sellers on an optional basis (not required by law).  Over 800 gun owners responded, with 60% saying that they would use the system when they could not establish the person's non-prohibited status in another way.

The comments were more interesting than the survey itself.  Many people simply said they never sold any of their guns.  Others said that they could usually clear buyers without doing a check.  Examples of how this could be done include the buyer presenting a CCW license, a federal collector's license, or law enforcement credentials.  Another way is simply having known the buyer well for a very long time.  Many private transfers involve close friends or family.  I have had people comment on the page that if they have ANY doubt about someone they are selling a gun to, the tell them that the need to go to a local licensed dealer and have a check done.  If they refuse, then the seller has their answer and they refuse to sell to them.

Another factor is that - contrary to what gun control advocates say - very few guns are sold in private sales.  It is much more common for guns to be passed down to family than to be sold.  Family members know each other well, and again, most gun owners are very law abiding, and those that are not, are not going to be stopped from breaking the law because you pass another one.

The problem of gun violence is much more complex than gun control advocates would have you believe.  As in Brazil, Mexico, and Jamaica, passing new or even highly restrictive gun laws will not reduce the death toll and may even make things worse.  Making background checks mandatory on private transfers will accomplish little - and will accomplish nothing that simply making the system available on a voluntary basis will accomplish.  

A Better, More Practical, Way To Impact Gun Violence

Gun control splits
No matter what side of the gun debate you are on, you surely know how difficult it is to pass gun control laws.  What if there was a way to do far more than mandating background checks on private sales, without passing any controversial new laws?  Well there is: The actual enforcement of current laws.  The truth is that we do not lack laws, the problem is a lack of enforcement.  Passing more laws that will not be enforced will accomplish nothing,

So what can be done?  A great deal actually, starting with these things:

1) Imbed BATFE agents in local law enforcement - implement Project Exile nationwide

A billboard - part of Project Exile
Well over half of all gun violence takes place in urban areas, much of it gang and/or drug related.  Embedding ATF agents in local law enforcement has been proven to reduce gun crime by discouraging the carrying or firearms by drug dealers, gang members and other criminals.

Why does this work?  Well, these, mostly young, criminals expect to go to prison at some point.  They have friends there, they have visited friends there and they expect that when they go to prison they will have their moms, their girlfriends and their children visiting them on a regular basis.  In all but the largest states (CA, TX, etc) if they are sentenced to state prison, they will be within driving distance of home, family and friends.  Federal prison is a different story.  They likely will serve time far away in another state.

In the pilot projects such as Project Exile, they only had to send a few of these criminals to federal prison before the number of drug dealers and gang members carrying firearms dropped.  Clearly, this will not prevent all murders - but it can reduce the number of unpremeditated murders.
Those ATF agents can get them prosecuted for federal gun crimes - and that is something they fear.  If they are sentenced to federal prison, they could end up serving their sentence thousands of miles away.  This is where the project gets its name and why it works.

Most line police officers believe that going after
illegal gun dealers will reduce gun violence.
(Police One survey of 70k active duty officers)
2) Investigate and prosecute illegal gun dealers

By "illegal gun dealers" I mean people who make lots of money intentionally selling guns to people they know are not legally allowed to buy them.  According to that DOJ study 43% of criminal's firearms are obtained from such people.  Imbedding ATF agents in local law enforcement will provide the leads that would lead, after investigations, to many such arrests.  Then we must actually prosecute these people and send them to prison.

3) Arrest and aggressively prosecute people who buy guns for prohibited persons

After illegal dealers, the next most common source of criminals firearms (15%) are "straw purchases".  In a straw purchase, a criminal or other prohibited person finds someone with a clean record to buy a gun for them at a dealer.  This is illegal - and you are required to certify under penalty of perjury that you are not doing this on the application form to buy a firearm.  To erase all doubt, the form actually warns you that doing this is illegal and tells you, if you are to STOP.  Yet, thousands of times every year, people lie on the form, buy a gun, walk out of the store and hand it over to a criminal who could never buy it from a licensed dealer themselves.

A poster for the joint ATF and NSSF (gun industry
association) program to discourage straw purchases.
Unfortunately prison time is almost unheard of.
Both the gun industry and the ATF have worked hard to tell people that this is a serious crime - but it will not be reduced unless we start prosecuting people and sentencing them to serious time in prison.

4) Aggressively prosecute criminals and other prohibited persons who like on the background check from in an attempt to illegally buy guns through legal sources.

5) Fix the broken background check database

Why? Four times more criminals get their firearms through gun dealers - with background checks - than from private parties who don't know they are criminals

The gun industry supported
the 2017 FixNICS act, but
There is more work to be done
The first problem is, that when a convicted felon walks into a gun store, lies on the form and the National Instant Check System rejects them, there is almost no chance they will be prosecuted.  I actually did the math a few years ago and the chances of prosecution was less than 1 in 300.  Not surprising given that Pres. Obama's BATFE head stated before Congress that such prosecutions are, "a waste of resources".  In other words, it's policy to almost never prosecute criminals who try to buy guns.

The huge problem with this policy is that it allows criminals a free bite at the apple.  They can walk into a gun store and try to buy a gun.  Most of the time they will be turned down - but as many as one in three felons and severely mentally ill prohibited persons are not in the database.  These people will slip through and walk out with a gun.

This is exactly how the Sutherland Springs mass murderer got his guns - he simply was not in the system.  Had the database been accurate, he would have been turned down.  However, if he was not prosecuted, he simply could have bought a firearm from an illegal source.  What should have happened was a rejection, followed by an arrest.  Had this happened, 26 people would be alive.  When criminals attempt to buy guns illegally at a gun dealer it is never a good sign.  We need to act when this happens.

That leads right to our second problem: The background check database is flawed because too many government agencies (largely courts) simply do not report all their convictions and mental health commitments.  Both the NRA and the gun industry association (NSSF) have been working hard to increase reporting, but there is still a great deal of work to do.  If the system is to so any good at all, the database must be accurate.  Gun control groups seldom talk about the problems with the database, because it tends to undermine support for expanding background check to private sales.  Never mind that fixing the database would prevent far more criminals from getting guns.......

6) Make the background check system available to private sellers on an optional basis

As outlined above, most sellers are very, very careful about who they sell guns to.  Those who are not, will not do background checks even if they are mandatory.  However, in my informal survey, 60% of responding gun owners said they would use such a system when they could not establish a person who is not prohibited via another method (knowing them well, law enforcement credentials, carry licence, other firearms related license, etc).  The vast majority of the remaining 40% simply never sold guns or only sold them to people they knew really well.  If fact, for most gun owners, making the NICS system easily available would make selling an occasional gun easier.

Finally, in regards to background checks, as Professor Adam Winkler - who is pro-gun control - has said we must be realistic about what background checks can do.  At best, background checks can only force people to turn to illegal sources.  Therefore, if we do not work to suppress the illegal sources, background checks are useless.  Since the illegal market can never be completely controlled, we will never be able to prevent every criminal or other prohibited person who wants a gun from getting a firearm.  No nation has achieved this and we will not be the first.

So, there are six things that we can do, right now to reduce gun violence - none of them are controversial, most require no new laws.  We just need to use the laws we have in a much wiser way.

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