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Gun Control Policy: Universal Background Checks Aren't the Cure-all People Think They Are

There has been much hue and cry for universal background checks to be mandated for every transfer of firearms in this nation. There is a much publicized myth that 40% of all firearms sales in the U.S. are conducted without a NICS (National Instant Criminal Background Check System) check. This myth was based on a telephone survey of 251 people conducted during the Clinton Administration, three-quarters of which dealt with sales before the Brady Act was passed in 1993.

The survey specifically asked respondents if they thought they were making a purchase from a licensed dealer. Considering that in 1993 there were over 283,000 Federal Firearms Licensed (FFL) dealers in the nation, many operating from their homes , there is room for confusion.  How many would think a person was a licensed dealer if the sale was made at a kitchen table?  Despite the fact that FFL dealers had the same requirement for reporting, documentation, and storage as the FFL dealers who worked from a store. 

If one considers guns that were bought, traded, borrowed, rented, issued as a requirement of the job, or won in contests, 85% went through FFLs. Just 15% were transferred without a background check. Many of that 15% are transferred within families as gifts or inheritance or are transfers between friends.

Imagine a grandfather who wants to give a family shotgun to his 12-year-old grandson having to do a background check on his grandson before giving him the shotgun. Or a friend having to do a background check on his lifetime best buddy before lending him a hunting rifle. Or, if your mother had a prowler at her home, having to do a background check on your own mom before you could give her one of your guns for protection.

Now consider the following laws are already in place:

It is a federal felony to be engaged in the business of buying and selling firearms and ammunition without having federal firearm dealers license.

It is a crime for a federally licensed dealer to sell a gun without doing a background check. This applies to all dealers, including at retail stores (like Walmart), gun shows, flea markets, or anywhere else.

It is a federal felony to sell, trade, give, lend, rent, or transfer a gun to a person you know or should have known is not legally allowed to own, purchase, or possess a firearm. The penalty for selling a gun to a person who is a criminal, mentally ill, mentally incompetent, or an alcohol or drug abuser is a 10-year federal felony. 

It is even a federal felony to submit false information on a background check form for the purpose of purchasing a firearm. According to a 2012 report to the Department of Justice (DOJ), more than 72,000 people were turned down on a gun purchase in 2010 because they didn't pass the background check. Only 44 of those cases were prosecuted. 

Logically, the question is "why?" Vice President Biden answered that question in an interview with the NRA's Jim Baker during their recent meeting about gun control. 

“And to your point, Mr. Baker, regarding the lack of prosecutions on lying on Form 4473s, we simply don’t have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.” 

In 2010, prosecutors considered just 22 cases of information falsification, according to a 2012 report to the Department of Justice by the Regional Justice Information Service. 40 more background-check cases ended up before prosecutors for reasons related to unlawful gun possession. Federal prosecutors pursued just 44 of those 62 cases. Gun prosecutions in 2011 were down 35% from the previous administration’s peak in 2004, according to Justice Department data.

So, more laws that will not be enforced is the answer Mister Vice President?

One of the dis-qualifiers for a firearms purchase that is called for in the wake the shootings in Sandy Hook or Aurora, Colorado is that of mental health. Under federal law, an individual deemed “a mental defective” by a court or involuntarily committed to a mental institution cannot purchase firearms. In theory, the FBI can match mental health records of prospective buyers when a FFL dealer calls for a NICS check. Since it's creation in November 1998, the registry has helped deny guns to about 1.5 million illegal buyers. 

The FBI denied 72,659 attempted gun purchases, 1.2% of the more than 6 million applications, in 2010 based on red flags raised by the background check system. Nearly half of those application denials were due to felony indictment or conviction, while 19% of the applicants were fugitives and 11% were those who had violated state laws.  The rejection rate has essentially remained the same over the years.

Some advocacy groups such as the American Civil Liberties Union oppose expanding the NICS database, contending that it could jeopardize privacy and further stigmatize the mentally ill perhaps even driving those who need help away. In fact, the ACLU has threatened a class action law suit to prevent this. At issue is whether the NICS would receive all mental health data held by courts and state agencies. There is controversy over the definition of the disqualifier "confined," for example; under strict interpretation, it would include alcohol and drug treatment centers.

Various states have a version of the Massachusetts Mental Health Reform Act of 1970, that are also mirrors of the federal HIPAA laws. The Massachusetts MHRA prevents the state from reporting the very mental health dis-qualifiers that would be required under universal background checks. Because of this, many states have not been giving the federal government the information it needs to maintain a substantial database of those who are not eligible to buy a gun. Much of that vital information specifically relates to mental health problems and substance abuse. How much of your medical history would you want stored in a federal database?

The Massachusetts Department of Mental Health distributes records from the facilities it operates, which admit about 1,200 patients a year. But only a portion of those individuals are involuntarily committed — the criteria barring gun ownership. Private facilities in Massachusetts admit more than 70,000 patients annually. However, being private facilities, these are exempt by state law from the reporting requirements. Again HIPAA and the Massachusetts MHRA prevent that from occurring.

"Most Americans support background checks, but they … have very little clue about what that means," said David Kopel, a gun law expert and adjunct Constitutional law professor at the University of Denver. "When you phrase something in an attractive way like 'universal background checks,' who wouldn’t be for it? But if you get into the details, there’s a bit more grey-area."

Though more than $50 million in federal grants have been awarded to states to implement reporting programs since 2009, only 18 states have received funding, according to the Bureau of Justice Statistics. Eligibility for the federal money requires a system to legally reinstate individuals’ firearm privileges, one that Massachusetts and several other states lack.

Some data to consider from the Mayors Against Illegal Guns website:

Twenty-three states and the District of Columbia have submitted fewer than 100 mental health records to the federal database. Seventeen states have submitted fewer than ten mental health records, and four states have not submitted any mental records at all.

44states have submitted fewer than 10 records to the controlled substance file in the NICS Index, and 33 have not submitted any records at all. Even though federal regulations and policy establish that a failed drug test, single drug-related arrest, or admission of drug use within the past year temporarily disqualify a person from possessing a gun.

52 of the 61 agencies for which the FBI keeps relevant data have reported no mental health records to NICS. The vast majority of federal records were submitted the Department of Veterans Affairs.

Only three federal agencies — the FBI, the U.S. Coast Guard, and the Court Services and Offenders Supervision Agency (CSOSA) — have shared any substance abuse records with NICS.

Federal agencies may continue to rely on a policy memorandum issued in 1994 by former Attorney General Janet Reno that instructs federal agencies not to submit certain substance abuse records to NICS.

If even the federal government is at odds with itself over reporting to NICS, how can they expect 50 states and the District of Columbia to be in compliance? 

Some people have recently quoted NYPD Police Commissioner Ray Kelly as having called for universal background checks. In fact Kelly said, "The universal background check can be helpful." This is the same commissioner who has advocated "Stop and Frisk" patrols for several years that primarily target young men of color and have recently been deemed unconstitutional for violating the Fourth Amendment protections against unlawful search and seizure.

In the same "Face the Nation" interview, Representative Paul Ryan (R-Wis.) said, "Let's go beyond just this debate and we get deeper. What's our policy on mental illness? What's going on in our culture that produces this kind of thing? We need to have that kind of discussion and debate and I hope we don't skip past that and bring out political ideas that recycle failed policies of the past."

Which brings us back to an earlier point. How much of your private information about mental health treatment, drug or alcohol addiction, or other medical issues do you want shared with the federal government? This is not just a matter of gun owners, but everyone's information must be shared for the NICS system to work.

I believe Massachusetts has a good system for sales. Non-FFL gun owners can transfer up to four firearms per calendar year; this allows for those family and friend transfers I talked about earlier. Anything more than that would require a trip by the seller and buyer to a local gun shop to have the dealer fill out the forms, conduct the NICS check, and make the "sale" which, of course, will require a fee set by the dealer. I have paid between $10 and $50 for such a transfer.

But until the federal and state governments come up with a working standard for various things NICS will never work. They need to determine if voluntary "commitment" to a drug and alcohol treatment facility (for example) is a commitment. What is going to be the working definition of a "commitment"? Will private facilities be mandated to report to NICS and, if so, how? Perhaps more importantly, how will we work to ensure these programs do not drive away those who most need mental health care?

So before one demands universal background checks, based on misquoted 1993 numbers, perhaps each person should consider how much this will impact them? For me, I have had four firearms purchases without a FFL in 30 years, all with close friends or family and no sales. I still would be concerned about some of the reporting requirements as I support HIPAA.

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