In-Depth Look At Universal Background Checks
Cries for universal background checks are often heard in the reverberations of America’s gun violence.
Headlines spark like wildfire about gun violence when tragedy befalls our nation, and the answer many seek is to increase gun regulation in the form of universal background checks. The idea is that more extensive criminal and mental illness background checks will result in fewer firearms being sold to criminals and the mentally ill.
Prospective gun owners may be wondering a few things when seeking to buy a new weapon: what exactly are universal background checks, which states require them, what sort of background checks are in place now and consequently how are people still getting around background checks and committing crimes?
Concerning Universal Background Checks
Background checks seek to analyze a gun buyer’s criminal and mental background for dangerous red flags on a registration called the National Instant Criminal Background Check System (NICS).
The NICS began in 1998 following the enactment of the Brady Handgun Violence Prevention Act (Brady Act). The Brady Act requires federally licensed firearms retailers to screen gun buyers through the NICS.
It was named after Ronald Reagan’s press secretary James Brady, the victim of an assassination attempt on Reagan.
According to a 2010 report by Ronald J. Frandsen of the Regional Justice Information Service, the FBI and state agencies in 2010 denied a firearm to approximately 153,000 people subject to the NICS.
According to the report, “NICS checking agencies most often block the transfer of a firearm or a permit to a person whose records indicate a felony indictment or conviction, a fugitive warrant, unlawful drug use or addiction (within the prior year), a mental defective adjudication or an involuntary commitment to a mental institution, illegal or non-immigrant alien status, a domestic violence restraining order, or a misdemeanor domestic violence conviction.”
The FBI received 6,037,394 applications in 2010 for firearm transfer and denied approximately 72,659, or 1.2 percent of the total requests, and of those 72,659 denials, 47.4 percent were for felony indictment or conviction.
However, of those total denials, only 13 resulted in a conviction for seeking to purchase that firearm.
The remaining total was lost in a bureaucratic maze along the way.
Between 1998 and 2013, more than 167 million background checks were registered through the FBI, according to NBC News. And in 2013, over the prior 14 years approximately 1.5 million people were denied a firearm, according to multiple reports.
According to an NBC News report, 44 states regulate the sale of firearms to the mentally ill, but seven states account for 98 percent of the names NICS prohibited to buy firearms, which means there are gaps in the system. The Virginia Tech shooter Seung-Hui Cho was declared mentally ill two years prior to passing a background check, obtaining a gun and killing 32 people.
Additionally, Omar Mateen, responsible for the deadliest mass shooting in U.S. history, legally passed a background check. He also legally purchased two weapons just prior to killing at least 49 people and wounding 53 more in an Orlando club.
The NRA said it opposed expanding firearm background check systems because additional precautionary measures do not stop criminals from obtaining guns. This is where straw purchases come into play.
According to the Law Center to Prevent Gun Violence, 18 states and Washington D.C. have extended background checks beyond federal requirements to require the process to be applied to private sales.
As it stands, the “gun show loophole” is a perceived way to circumvent federal background checks at licensed gun sellers. But what is it that differentiates a private consumer selling a firearm from a licensed gun dealer selling a firearm?
According to the Gun Control Act of 1968, “the term ‘dealer’ means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term ‘licensed dealer’ means any dealer who is licensed under the provisions of this chapter.”
The Firearm Owners Protection Act of 1986 ( FOPA) expands on the murky “engaged in business” language.
Considering manufacturers of firearms, the law states “a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the principal objective of livelihood and profit…”
A “dealer of firearms” is “a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the principal objective of livelihood and profit, but such term shall not include a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms.”
These two sections use the phrase “principal objective of livelihood and profit,” which does not encompass improving or liquidating a personal firearms collection. Therefore, private sellers at gun shows based on the aforementioned laws are not covered by federal law.
However, state law is a different ball park.
As of 2013, 33 states do not have laws concerning the “gun show loophole,” according to NBC News.
What is a Straw Purchase?
Although firearm background checks seek to inhibit prohibited names from obtaining firearms, a straw purchase is an unfortunate work-around that can lead to dangerous practices.
Before getting into how it relates to gun regulation, let’s look at the term itself.
A 1992 report from the Associated Press in The Free Lance-Star assigns a definition to straw purchases. It occurs when a buyer uses a front man without a prohibited background to fill out the firearm transaction forms.
However, straw purchases are not strictly for firearms. A civilian can straw purchase groceries for an elderly neighbor, but the term can also be applied to buying tobacco and alcohol for minors. Additionally, the term is also applied to mortgage loans under a similar definition.
There are good and bad straw purchases. Straw purchases can also be made in the form of firearm gifts for a significant other or family member.
The illegality of straw purchases is outlined in 18 U.S. Code § 922 (a) (6), wherein it states, “It shall be unlawful for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.”
The National Shooting Sports Foundation (NSSF) – the 13,000-member trade association for the firearms industry – notes cartel-related violence in Mexico illustrates increased need to combat illegal straw purchasing of firearms. However, it also states most firearms recovered in Mexico do not come from the U.S.
The NSSF supports deterring any illegal acquisition of firearms, no matter where they come from or who uses them.
The U.S. Supreme Court Has Focused On Cases of Straw Purchase
Straw purchase does not always concern one legal party buying a weapon for another individual prohibited from obtaining a firearm.
In one case reported on by NPR, a civilian purchased a Glock 19 handgun in Virginia at a gun dealership with the intent to transfer ownership and a receipt for the firearm to his uncle in Pennsylvania in exchange for a $400 check.
The purchaser, Bruce Abramski Jr., signed all necessary federal forms and outlined that he was the actual buyer of the gun. Abramski also signed another form certifying that he understood providing a false answer is a federal crime.
Police found the receipt in a search related to a separate crime and sentenced Abramski, the initial purchaser, to five years of probation.
He appealed on the grounds that his uncle was able to legally buy the gun himself.
According to Justice Elena Kagan writing for the majority, Abramski’s outlook on the law would “render the required records close to useless” for law enforcement.
"Putting true numbskulls to one side, anyone purchasing a gun for criminal purposes would avoid leaving a paper trail by the simple expedient of hiring a straw," she said.
Former Justice of the Supreme Court Antonin Scalia, wrote that the court majority was ensuring “a federal crime for one lawful gun owner to buy a gun for another lawful gun owner.”
Are Firearm Gifts a Form of Straw Purchase?
Whether it’s for Christmas or a birthday, it’s a legitimate and smart thought process to be concerned about whether or not buying a firearm for a loved one is a form of straw purchase.
According to the NSSF blog, Abramski v. United States did not affect law regarding firearms as gifts, nor is there any federal law that prohibits buying a firearm as a gift for someone within your own state. California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, Washington State and D.C. all require one to transfer ownership of a firearm through a licensed retailer so a background check on the new owner can be made.
Maryland and Pennsylvania require background checks on private sales.
According to a 1992 ATF newsletter from the Bureau of Alcohol, Tobacco, Firearms and Explosives, the use of a gift certificate does not tie into a straw purchase, and the user of the gift certificate would be the actual purchaser of the firearm, appropriately noted in the dealer’s records. Therefore, a gift certificate to a licensed gun retailer will allow flexibility in the purchase of the firearm and an added legality to the overall gift.
Furthermore, according to the ATF, a parent or guardian may purchase a firearm or ammunition for a juvenile, a child under the age of 18. However, there are some stipulations.
The juvenile may only receive and possess handguns with written parental or guardian permission, and the firearm can only be used for employment, ranching, farming, target practice or hunting.
About The Author
Jake Smith (@notjakesmith) is a copywriter in his final year of studying public relations and apparel at the University of Idaho.