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.
A Straw Purchase Gun
A straw purchase gun doesn't necessarily mean anything bad or illegal is happening...but it might.
A straw purchase is where an item is purchased by one party for the sole purpose of either giving or selling to another party.
Granted, that doesn't mean that anything illegal or illicit is happening. For instance, if you buy groceries for, say, a neighbor or friend recovering from an accident or illness that can't do their own shopping, that's a straw purchase.
Technically, a mortgage loan is a straw purchase; the lender is effectively buying the house from the debtor. A lot of people are deluding themselves about being "homeowners" when in fact they are anything but; they just have a different rental agreement. Stop making your payments and see what happens if you disagree!
A straw purchase of a gun doesn't necessarily mean anything illegal is happening. For instance, buying a firearm for a family member to give as a gift is technically a straw purchase. If you purchase, say, your child that Ruger 10/22 or first hunting rifle, that's technically a straw purchase; a minor cannot purchase a firearm. But is that illegal or immoral? No, obviously not.
When people mean when they talk about "straw purchases" when it comes to firearms is someone who legally CAN purchase firearms doing so for the purposes of trafficking firearms, meaning they're buying guns to give or sell to criminals who can't have them so they can commit criminal activity.
And that kind of straw purchase is DEFINITELY illegal.
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.”
Doing so will get you up to ten years in Club Fed.
How Big Of A Problem Are The Straw Purchase Of Firearms?
Just exactly what kind of problems are caused by people who carry out the illegal straw purchase of firearms? What's the scope of the problem? The full extent, of course, is unknowable, since there are crimes that are known about and recorded and those that are not.
Straw buyers can consist of either a regular trafficker in firearms, who straw purchases to sell on the black market, or a friend, relative or romantic partner who is paid or otherwise induced or compelled to carry out a straw purchase on behalf of another party.
Generally, the observed trend is that a straw buyer will purchase a firearm or firearms in a gun-friendly state and sell it/them in a nearby state that has stricter gun laws. Such firearms will be sold at an extreme markup. Illegal arms trafficking is an unfortunately lucrative trade, made possible - ironically - by gun control laws.
The ATF (PDF) found in a 2000 study that slightly more than 50 percent of guns used by youth and juveniles to commit crime were obtained from a straw buyer or a straw-buying ring. Estimates from other sources indicate that somewhere between 40 to 50 percent of illegally-obtained firearms are from straw purchase schemes.
However, it also noteworthy that only a small percentage of dealers engage in illegal activities. Guns purchased from a licensed seller and then used in crimes were obtained from only about 1 percent of all licensed firearms sellers.
Straw Purchase, Gun Gifts, And You
So, what people wonder about is if straw purchase gun law affects giving firearms as a gift. The answer is it's legal...but this gets weird.
Please note that this isn't legal advice. We aren't lawyers, and you should seek legal advice only from a qualified, practicing attorney.
Let's talk about the gun-buying process.
If you buy a gun from a gun store, you have to fill out ATF Form 4473, which involves a background check. Section 11.A asks if you are the buyer/transferee.
Form 4473 states that "You are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer the firearm(s) to you." What this would suggest is that giving a gun as a gift can't be done because the person receiving the gun would have to go to the gun store to pick up the gun.
On the one hand, giving a gun as a gift to someone is not in and of itself a crime unless you know or reasonably suspect that they are legally prohibited from possessing firearms. No law prevents you from giving your wife, friend, or whomever a gun as a gift, or passing an heirloom gun down to a relative.
On the other, federal law prohibits lying on Form 4473. From a certain point of view, if you undergo a background check and indicate you are the buyer/transferee but are doing so knowing you're giving or selling the gun to someone else, that means you aren't the transferee since the destination is ultimately someone else's gun safe.
Abramski vs United States, a Supreme Court case involving Form 4473, concerns just such an instance. Bruce Abramski purchased a handgun in Virginia, indicating on the background check form that he was the buyer/transferee. Abramski was going to sell the gun to his uncle in Pennsylvania and did so.
Abramski entered a conditional guilty plea to falsifying Form 4473, since he wasn't the intended buyer/transferee according to the federal government. (That's where you plead guilty but leave open the possibility of appeal.) Abramski held that his answer to Question 11.A was immaterial, since gun stores don't keep that portion of the records, which is true. Furthermore, since the law only concerns the primary seller (meaning gun stores) his actions didn't amount to falsifying the form. Since his uncle also wasn't legally prohibited from buying or possessing a firearm, it wasn't an illegal straw purchase.
In other words, the part of the form in question wasn't kept in store records, the law only covers retail sales, and his uncle was perfectly entitled to be sold the gun anyway.
The court disagreed, as the majority held that 4473 Section 11. A DOES concern itself with the end possessor of a firearm, and since the uncle could have bought the gun through the typical channels, he could/should have done so.
Federal law and SCOTUS precedent therefore holds that you definitely can give a gun as a gift, and you definitely can privately sell a gun...but buying a gun for the express purpose of giving it as a gift or selling it to someone, even IF that person is perfectly entitled to purchase or possess a firearm, could technically be considered a crime since it means you're falsifying a federal form.
However, giving a gun as a gift is protected from prohibitions against straw buying since your intent isn't to act as an agent for another person; you intended to buy the gun, but are giving it to another person out of the kindness of your heart.
Is your head spinning yet?
It should be mentioned that Abramski made another critical error.
A transfer of a firearm across state lines has to take place in the transferee's state of residence and in accordance with that state's laws. Since his uncle is/was a resident of Pennsylvania, the gun technically would have to be transferred to a dealer in Pennsylvania and that state's laws and procedures followed. Pennsylvania, as it happens, requires a background check for all sales of handguns, including private sales.
Granted, if you give a friend or relative a gun as a gift, you're probably okay so long as the transfer isn't going over state lines and they aren't prohibited from possessing a firearm. It's just that federal law is VERY weird on this subject since it isn't strictly speaking the act of buying a gun legally and then giving it or selling it to someone, but rather the intention - meaning why you're doing it - that is.
In short, "straw purchases" are defined by the intention of the act rather than the actual act itself. If you do it for the wrong reasons, it's a crime. If you do it for the right reasons, it's legal and above board.
Pardon us while we go get an aspirin.
What The ATF Says About Giving A Gun As A Gift
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.