Background Checks

One of the most prominent issues in gun legislation is background checks. While some argue they go too far, others say they have not gone far enough.

Updated:
Jun 23, 2022
| Published:
Jun 23, 2022
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In the wake of a mass shooting, federal gun law reform becomes an incredibly polarized issue, with lobbyists and organizations spending millions on each side. Background checks for gun purchases are a legislative issue that consistently generates substantial controversy. 

Gun control proponents (such as Sandy Hook Promise, Giffords Law Center, and Everytown for Gun Safety) argue that background checks are vital to prevent people who should not have guns from purchasing them. However, they say that current federal law provides a loophole, as private sellers — a contentious issue in its own right — are not required to conduct background checks. Pro-control organizations argue that universal background checks would close these loopholes. On the other side, gun rights activists oppose expanding the federal background checks system, calling the move ineffective compared to state systems. They further argue that federalized background checks would restrict the rights of law-abiding gun owners. As gun violence rages on in the United States, both sides largely agree that some action is necessary. Whether that action takes the form of expanded background checks remains to be seen.

History

National Firearms Act (1934)

In light of the rampant gun violence throughout the Prohibition era, Congress wanted to enact stricter gun legislation. In the midst of that political climate, Congress passed the National Firearms Act of 1934 (NFA), the first major law regulating gun possession and sales. The NFA established a tax and registration system for specific firearms, mainly those associated with gang violence. Congress intended to discourage, if not indirectly prohibit, transactions involving these listed weapons and empower law enforcement to go after individuals who failed to register them. However, in Haynes v. United States (1968), the Supreme Court found that this mandatory registration provision violated individuals’ Fifth Amendment right against self-incrimination. This decision left the NFA practically unenforceable.

Federal Firearms Act (1938)

The Federal Firearms Act (FFA) created a federal licensing system for the manufacture, import, and sale of firearms. Any organization or person granted a permit to engage in those activities receives a federal firearms licensee (FFL). Beyond implementing a licensing requirement, the FFA requires all FFLs to maintain customer records and bars the transfer of weapons to “prohibited persons” laid out in the law.

Gun Control Act (1968)

In the three decades following the passage of the FFA, Congress enacted virtually no substantial gun legislation. However, when Congress acted again on the issue, it did so in a big way. Prompted by the high-profile assassinations of President John F. Kennedy, his brother Senator Robert Kennedy, and civil rights activist Martin Luther King Jr., Congress passed the most comprehensive gun legislation at that time: the Gun Control Act of 1968 (GCA). The GCA was a landmark law, superseding the FFA while updating existing gun regulations. Primarily, it broadened the categories of “prohibited persons” and kinds of regulated firearms. A key provision of the Gun Control Act was a federal definition for private sellers, who are not required to perform background checks. The GCA defined private sellers as individuals that sold four or fewer guns each year. However, in 1986, the Firearms Owners Protection Act (FOPA) amended this definition to refer to those who do not rely on gun sales as their primary source of income. FOPA has become a hotly debated issue in recent years, as it greatly expanded who qualifies as a private seller and thus does not need to perform a background check.

The Brady Handgun Violence Prevention Act (1993)

Congress passed the Brady Handgun Violence Prevention Act, named after Reagan Press Secretary James Brady, in 1993. In 1981, John Hinkley Jr. shot Brady in the head during his attempted assassination of President Ronald Reagan. The Brady Act created the National Instant Criminal Background Check System (NICS) and requires FFLs to conduct background checks to ensure buyers are eligible to purchase and own a gun. Federal law bars certain groups of people from owning firearms, including those indicted or convicted of a felony, drug users and addicts, the mentally ill, illegal immigrants, dishonorably discharged service members, some domestic violence abusers, and minors, among others. In theory, when those individuals attempt to purchase a firearm, the NICS will flag such cases and prevent them from doing so. However, it is voluntary for states to submit records to NICS, so data is incomplete. Since its implementation, the background checks system has prohibited over three million people from illegally buying a gun.

Background Checks

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) grants federal licenses to gun manufacturers, importers, and dealers (FFL). While there are many different types of federal permits, it is relatively complex to obtain any one of them. When someone goes to an FFL to purchase a gun, federal law requires that the dealer perform a background check on the customer through the FBI’s National Instant Criminal Background Check System (NICS). The NICS database will flag “potentially prohibited persons,” giving the FBI three days to investigate. Under current law, if the FFL does not hear back from the FBI within the three-day waiting period, it can complete the sale.

However, not every state uses the NICS’ full service, and some allow alternatives to background checks if an individual frequently purchases firearms. Additionally, federal law does not require background checks for sales between two private individuals. Although some states mandate background checks for all sales, the patchwork of state-by-state gun legislation could allow individuals to circumvent certain regulations by purchasing firearms from neighboring states. These discrepancies have prompted the Left’s calls for “universal” background checks, meaning background checks for all gun sales — including private ones. Meanwhile, gun rights groups claim that universal background checks fail to stop criminal purchases and target law-abiding citizens. In 2021, the House passed H.R. 8, the Bipartisan Background Checks Act of 2021, to prohibit a firearm transfer between private individuals unless a third-party FFL conducts a background check before the transfer. Though passed on a somewhat bipartisan basis, the Senate has not acted on the bill since the House passed it in March 2021. To bypass the filibuster, it would need substantial Republican support in the Senate, which seems unlikely anytime soon. Some Republicans argue that H.R. 8 imposes a burden on private sellers, who may sell to relatives or trusted colleagues.

In addition to the private sale gap in federal law, sometimes called the “gun show loophole,” some point to two other possible flaws: the “boyfriend loophole” and the “Charleston loophole.” Current federal law prohibits most perpetrators of domestic violence from obtaining a weapon if the abuser is “a spouse, has a child with, or has lived with the victim as a spouse, parent or guardian,” a provision some argue should include abusive dating partners. In March 2021, Democratic lawmakers introduced the Protecting Domestic Violence and Stalking Victims Act to amend federal law to explicitly include former or current dating partners in this prohibited class. The bill’s path forward seems murky at best, and to date, there has been no further action to pass it. While lawmakers have not made much progress on that issue, the House passed H.R. 1446, or the Enhanced Background Checks Act of 2021, in May 2021 to address the so-called “Charleston loophole.” The name arises from the 2015 mass shooting in a historic African American church in Charleston, South Carolina. In this case, the gunman successfully purchased a gun despite a criminal record because the FBI did not finish its investigation during the three-day interim period. H.R. 1446 extends the waiting period laid out in the Brady Act to 10 days. It is unclear whether this bill has enough Republican support to pass in the Senate, as some argue the FBI should be more efficient rather than forcing citizens to wait longer. As with H.R. 8, the Senate has not taken the bill up for a vote, and it is unclear if there is a path forward for the legislation.

Discussion Questions

  1. Could a stricter federal background check law negatively impact gun sales?
  2. What is your opinion on leaving background checks up to the states?
  3. If the House has passed gun legislation on a bipartisan basis, why are some measures still so polarized?

History

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Narratives

Left Narrative

The current background checks system, while helpful, does not go nearly far enough. To truly protect the American people from gun violence, Congress must pass legislation requiring universal background checks. Universal background checks are life-saving, common-sense measures and will close loopholes in federal gun laws. The public overwhelmingly supports these steps, including gun owners. The only thing that stands in the way is the gun lobby and conservative politicians who are in its pocket. These individuals have an archaic, extreme understanding of the Second Amendment and are far outside the mainstream opinion on this issue.

Right Narrative

Background checks are already conducted before purchase through the National Instant Criminal Background Check System. Federalizing background checks will introduce inefficiencies to the system, resulting in more irresponsible gun owners falling through the cracks and gaining access to guns. Many of the solutions presented are not aimed at solving the problem. How is a police officer supposed to stop a private individual from selling a firearm to a friend when a universal background check is passed? Practically, these measures do not stop criminal behavior but criminalize regular purchases by law-abiding citizens.

Bipartisan Narrative

Background checks are already conducted before purchase through the National Instant Criminal Background Check System. Federalizing background checks will introduce inefficiencies to the system, resulting in more irresponsible gun owners falling through the cracks and gaining access to guns. Many of the solutions presented are not aimed at solving the problem. How is a police officer supposed to stop a private individual from selling a firearm to a friend when a universal background check is passed? Practically, these measures do not stop criminal behavior but criminalize regular purchases by law-abiding citizens.

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