What’s Wrong With Universal Background Checks?

The last remaining plank of President Obama’s gun control legislative package is the “universal background check” provision, which would, seemingly, make a background check a requirement for ALL gun purchases.  Currently, the law is that a background check must be run only by gun dealers (FFL holders).  Any gun that is sold between two private individuals doesn’t have that requirement.

Gun Background Check Form

So, what could be wrong with universal background checks?  Polls have been done that show upwards of 90 percent approval of such a law, yet there are some major organizations that oppose it.  Why?

Really, the only credible argument that I’ve seen that opposes it is that a “universal background check” law would require some kind of gun registration system, either centrally or distributed, to track whether the background checks have been done.

People on the left have pooh-poohed this notion of a universal registration system.  I have a friend who, on Facebook, had this to say about a registration system:

“Gun nuts are so stupid. UNIVERSAL background checks are not linked to gun registration… but for [sic] sake of argument lets say it was, why is everyone afraid of gun registration? Oh because after gun registration then the government is going to confiscate my guns. Then after the imaginary gun registration and imaginary gun confiscation…then the government is going to take over everything and….SOCIALISM …..AHHHH!!! This fear of gun registration is so silly to me. It [sic] coming from a place of unrealistic paranoia…everyone keep in mind that GUN REGISTRATION is not actually being proposed.”

So, I have a few questions: first, is a registration system actually a part of the proposed legislation in Congress? And secondly, is it right to be concerned about a universal registration system for guns? Does gun registration lead to gun confiscation?

Is a gun registry system a part of the proposed gun control legislation?

To answer this question, one must understand a little bit about the background check process, and what the government can and cannot do.  When a licensed firearms retailer does a background check, they are submitting an individual’s personal information to the FBI to run through the National Instant Criminal Background Check System (NICS).  The NICS system either approves or denies the person the ability to buy a firearm, giving the licensee a unique identification number to record the background check.  The NICS system is then required by law to delete any personal information about the person whose name was run in the background check.

The licensed firearms dealer is then required to keep accurate records of the transaction, including the name, age, and place of residence of each person that buys a gun from them.  They are then required by law to immediately respond to ATF trace requests, and their records can be perused at any time by federal authorities.

So, in essence, we have a distributed gun registry today, with the exception of private sellers.  Under the bill under consideration in the Senate today (S.649), a private seller who wanted to sell his gun to someone would have to transfer his gun to a federally licensed dealer, who would then run the background check on the buyer, and then transfer the gun to the buyer upon a successful completion of the background check.  There are some exceptions in the Senate bill, as written today:

  • Gifts between spouses, between parents and their children, between siblings, and between grandparents and their grandchildren.
  • Guns that are left in wills.
  • Temporary transfers at home (if you loan someone a gun at your own home for shooting).
  • Temporary transfers at the range or while hunting.

Bottom line on this question: the federal government is NOT allowed to keep background check information, but it does require its federally-licensed gun dealers to keep all that information, and they can come and get it at any time for their gun tracing program.  So, while there is an incomplete database of firearms owners today (because not everyone buys their guns from a gun dealer), after the law is passed, there will be a complete, distributed database of firearms owners that can be accessed at any time by the federal government.

Note: It really has to be this way, too.  If you don’t have record-keeping in the background check process, then the background check system has no teeth.  If the law were written in such a way that private sellers could run their own background checks, but didn’t have to keep the same records as the gun dealers, then how would the law be enforced?  It would be unenforceable.  The law would have no teeth.  A person could run a background check on his brother, and then give the gun to someone else, and the government would have no recourse.  In order to have truly universal background check system that are enforceable, the government must have some kind of universal registry.

Is a gun registry system something to fear?  Does a gun registry lead to gun confiscation?

Why do the “right-wingers” and “gun nuts” (or “gun rights advocates,” if you must refer to them that way) cry “Gestapo” when the topic of a gun registry is brought up?  My friend Broc says it’s no big deal; thoughts of gun confiscation is “coming from a place of unrealistic paranoia,” he says.

Being that this is a purely hypothetical situation, I guess the only way to confirm whether a gun registry leads to gun confiscation would be to find examples (contemporary or in history) where a registry has led to confiscation.

Here are some examples that I found:

  • Canada just recently (February 15, 2012) passed a law to dismantle its nationwide firearms registry, because of an uproar over the government confiscating weapons as bureaucrats added weapons to the banned weapons list.  You can watch a video below of a Canadian newscaster who discusses the Canadian firearms registry and its implications for the United States.  Time elapsed from registry to confiscation: 19 years.
  • Australia has had a national gun registry since the 1930s, and in 1996 passed a gun control law that banned all semi-automatic guns.  Though the Australian Constitution does not allow the government to take property from its citizens without just compensation, the government confiscated all semi-automatic weapons under a buyback program which paid each owner an average of $500-some dollars for their weapon.  Time elapsed from registry to confiscation: 66 years.
  • In California, where every firearms owner is required to register their firearm, the state confiscated SKS rifles in 1997 based upon the registrations, unless an owner could prove that they acquired the rifle before June 1, 1989.
  • The United Kingdom, which has had a gun registry since 1921, banned all semi-automatic centerfire rifles, as well as pump-action shotguns in legislation passed in 1987, and then all handguns above .22 caliber in 1996, and then finally all .22 caliber handguns in 1997.  All firearms owners were required to surrender their guns in exchange for payment.  Time elapsed from registry to confiscation: 76 years.
  • New York City passed a gun registry law in 1967, requiring everyone who owned a semi-automatic rifle or shotgun to register it.  In 1991, Mayor David Dinkins banned the possession of many of these, and police have gone door to door to collect these weapons. Time elapsed from registry to confiscation: 24 years.
  • In New Orleans in 2005, after Hurricane Katrina, police were dispatched to confiscate firearms, according to the New York Times, including legally registered firearms.
  • In 2011, the new South African regime passed the Firearms Registration Act, which required all firearms to be re-registered.  In the process of re-registration, more than half of the applicants were denied, and forced to turn in their guns.  Time elapsed from registry to confiscation: >2 years.

These are just (relatively) contemporary examples.  There are others that are historical, including the Weapons Control Act of 1938 in Germany which made it illegal for Jews to own firearms.  This was used, in conjunction with the 1928 Law on Firearms and Ammunition, which required gun registration and licensing, to strip Jews of their firearms.  We all know how that turned out.

It’s okay, though, because according to President Obama, “I am constrained by a system our founders put in place,” so he won’t be taking away firearms in the United States.  And I believe him.  There’s very little chance that he will confiscate firearms from law-abiding citizens (though they might in California).

But that’s not to say that it won’t happen in the future (oh, no! It’s the slippery slope argument!).  It has been done time and time again in history (as shown above).  Those on the Left are defensively stating today, “We don’t want to take away your guns! We love hunters and sportsmen.  We just want to make sure that criminals don’t get them.”  They don’t want to take away guns; neither did those that passed registry laws in Canada, Australia, the United Kingdom, New York City, South Africa, Germany, Russia, Turkey, China, Cambodia, Guatemala, Bermuda, Cuba, New Zealand, Greece, Ireland, Jamaica, etc.  And I believe them; they don’t want to take away guns… today.

  • Broc Middleton

    Bob it’s been awhile my friend and I must say I am very flattered
    that you featured my intellectual wizardry in your blog…unfortunately my
    comments seem to be only sensible thing in the blog. So, before I address the questions you present in your blog I would like to put forth some facts as a foundation from
    which I will move forward from.

    The most important piece of information which needs to address is
    the 2008 Supreme Court case “District of Columbia v. Heller” If you are unfamiliar with the Heller case here is the link. (https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller). This Supreme Court case and ruling affirmed the individual’s right to keep and bare arms. What does that mean? It means, that regardless of the paranoid ranting
    of “gun nuts” the government CAN NOT take away your right to own A firearm. (Now this is a bit off subject but please notice I said your right to own A firearm…not whatever you want, because what the Heller case also affirmed was the right of the government to regulate what type of weapons are banned). So “armed” with the understanding that the government CAN NOT come take all your guns away we can begin to look at the merits of the argument against universal background checks. However, one last thing before I
    do move on…it is important to noted that the Manchin-Toomey background check bill
    which is being voted today (I think) in the Senate is NOT for universal background
    checks. It’s a bill which does NOT fully address private sales loophole… I know that is separate topic but important to note.

    So your first question regarding universal background check is…does
    the universal background check system require a universal gun registry? Yes and
    No. No, it doesn’t create a universal database however the point your make about a “distributed database” is accurate to this extent…Yes dealers are required to keep records of all firearm transactions, and these records would be expanded to all gun sales under a universal background check system…BUT and this is a BIG BUT you incorrectly say that the federal government can come get that information “any time” they want. In the link YOU provided the ATF’s national tracing program has authority only when there is a criminal investigation. “…The NTC is authorized to trace a firearm for a law enforcement agency involved in a bona fide criminal investigation…” So the federal government is not allowed to request records to any firearm unless there is a criminal investigation. Tracing a gun
    that is involved in a criminal investigation is NOT in any way an infringement of the 2nd amendment or an invasion of privacy.

    Now onto your second question…is a DISTRIBUTED gun registry system something to fear? Does a DISTRIBUTED gun registry led to gun confiscation? So by looking at your examples of gun confiscation lets throw out the foreign example right away. Why?
    Because those countries don’t have a 2nd amendment, we do. Canada, Australia, Great Britain, South Africa NONE of them had a fundament right to firearms in their laws…America does. America is a unique case when it comes to guns, their laws and how they implement them has absolutely ZERO relevance or correlation with America and what may or may not happen in OUR future. I think its important to more thoroughly define what we mean here when we talk about “gun confiscation”. For some people when they hear “gun
    confiscation” and they think ALL guns. (The government is going to come into people’s homes and take all their guns away) For others “gun confiscation” could be more specific they are going to come take a particular gun. (The government
    is going to take my AR-15 away if the assault weapons ban is passed). Those are two VERY different things, the former being UN-constitutional and the later being constitutional (in some cases). So onto the cases in California, New York City, and New Orleans…

    – California: Honestly I couldn’t find a lot of credible sources on this 1997 SKS Rifle
    confiscation. There were message boards and NRA stuff but not a lot of legitimate sourced media information. If you could provide some that would be great. However from what I could gather, I did find that in 1997 there was massive confusion around an assault weapons ban enacted in 1989, California tried to retroactively make SKS rifles illegal going back to 1989 and conduct a buy back program for all SKS rifles purchased after 1989 starting in 1997…sounds like a true cluster f@#$ if you ask me. However despite the poor execution and insane timing of implementation I believe you are getting at whether California’s actions were basically constitutional or not? Now obviously neither one of us
    are legal experts however I believe the banning of certain weapons are within the government’s authority to regulate firearms. There is little debate over the government authority to regulate weapons like grenade launchers, rocket propelled grenades (RPG’s), fully automatic weapons…etc. The regulation of “assault weapons” is step
    further, a step which there is more debate about. However with the increasing lethality and
    rate of fire in the semi-automatic weapons the line is blurring between the semi-automatic
    and full-automatic weapons. I believe regulation of “assault weapons” is inevitable. So that leaves us with… Is the gun buy back/confiscation constitutional? I don’t know, a part of believes if a weapon such as SKS rifle is deemed illegal it should be “grandfathered” in to all current owners with an OPTION of a buy back if they so choose but that has to do with a conflict of property rights vs. government’s right to regulate and I just don’t know enough

    – New York City: Thankfully this one is a lot easier. It would seem to me that by reviewing the Heller case that this New York City law is UN-constitutional today due to the law banning an entire classification of weapons which are used primarily by citizens for lawful purposes. So while this happened in the past it could not (in my opinion) happen again because of the legal precedence established by the Supreme Court in 2008. There are many UN-constitutional things that have happened in the past which have solved by Congress and the court system. An argument that since is happened before it will happen again isn’t valid.

    – New Orleans: I hadn’t heard of this incident before reading about it today…and I believe this is the most chilling example you used against any database of weapons. However, it is fairly obvious that the order given by the Police Superintendent was illegal and UN-constitutional. From the information on Wikipedia http://en.wikipedia.org/wiki/Criticism_of_government_response_to_Hurricane_Katrina)
    that order was issued on September 8th and after a lawsuit was filed by the NRA, Second Amendment Foundation, and Gun Owners of America a restraining order was implement on September 22nd. Thankfully, in response to this incident Congress passed the Disaster Recovery Personal Protection Act of 2006. (http://en.wikipedia.org/wiki/Disaster_Recovery_Personal_Protection_Act_of_2006)
    This law specifically bans the confiscation of weapons during emergencies or major disasters. Many states enacted similar laws on the state level as well.

    Lastly Bob, I have to say that I am surprised that someone how supports Voter ID laws would oppose a simple background check before allowing an individual to purchase a firearms. I mean a vote isn’t going to kill somebody Bob, you want to verify who a person is before allowing them to vote. But you do not want to verify that a person doesn’t have a history of violence or mental disease before putting a GUN in their hand? By not closing ALL firearm purchase loopholes we leave in place a LEGAL way for criminals and mentally ill people to acquire weapons. That doesn’t pass the “common sense” test…but then again many Republican positions don’t.

    • http://bobewoldt.com Robert Ewoldt

      So, you say that the NTC is only allowed to trace a firearm for law enforcement purposes. What about other parts of the ATF? According to the ATF, they are allowed to “conduct one warrantless, annual compliance inspection” of every FFL, which includes reviewing “records, inventory and the licensee’s conduct of business.” Furthermore, if Congress were to make it a “crime” to own a bolt-action rifle (let’s just say), then the ATF would have to launch a “criminal investigation” into all the people that own that type of rifle, since it was then a crime to own that rifle. So my conclusion still stands… the FFL system is a distributed database that the ATF can access at any time that it wants (and, reportedly, has been copying FFL records to keep).

      You very callously throw out all the examples from overseas of gun confiscation, saying that they have “absolutely ZERO relevance or correlation with America and what may or may not happen in OUR future.” I disagree. The overseas examples absolutely do have relevance to the discussion in our country, because it speaks to human nature (and, more specifically, to the nature of liberals). It is the nature of liberals to want to confiscate guns, and whether it takes 2 years or 70 years, they want to take the step from a gun registry to a gun confiscation. Whether it’s confiscation of merely “assault weapons,” or the confiscation of all guns, this is the inclination of the Left. So, your throwing out of all overseas examples because “they don’t have a 2nd amendment” is ridiculous.

      Also, did you also say that one can’t make the argument that “since it’s happened before, it might/will happen again”? My goodness!

      Let me just make fun of that statement with these example statements:

      “Genocide in Africa won’t happen again, because it’s happened in the past, and we know better now.”

      “People won’t be stupid enough to drive a car without a seat belt on, because laws have been passed to make them do that.”

      “There will never be another world war, because we settled all of that in 1918.”

      “I’m so glad that this area of law has been settled by Congress and the Supreme Court, because they never change their minds.”

      Lastly, in regards to gun control vs. voter ID laws, let me say this… you’re trying to equate a right that is only available to citizens (voting) with a right that is granted to everyone with the exception of a small group of people (owning a firearm). First, do you really want to do that? Secondly, I’ve not said that I’m against a background check. I’m against a system of background checks that enables any government to create a national gun registry. I would be fine with universal background checks if the government were not able to peruse the records of any retailer at any time in order to create a gun registry. And, I dare say, everyone would be happy with such a system. All those, except for those who actually want a national gun registry.

      • Broc Middleton

        Yes I am sure the ATF is allowed to conduct inspections of dealers
        to ensure they are following proper procedures and protocols, but that sounds
        like an AUDIT of the dealer. That is not tracing an individual’s firearm
        purchase or background check. Furthermore if the ATF were to use the annual inspect to obtain an individuals information that would ILLEGAL because it was a warrantless search and the information would have been obtained through false pretenses.

        Now to your “premise”…its not valid on so many fronts. First, Congress could not pass a law banning bolt action rifles see the 2008 Heller case. Well I suppose they could pass it but it was get stopped by the courts as being UN-constitutional. So until the Supreme Court reverses itself or the 2nd amendment is repealed, your hypothetical is not valid. HOWEVER, if Congress were to pass an “assault weapon” ban, which is CONSTITUTIONAL, your “premise” still has the problem of “Ex post facto” law. (http://en.wikipedia.org/wiki/Ex_post_facto_law). Basically the US Constitution forbids the creation of retroactive laws. If the Congress were to ever pass an “assault weapons” ban they could not criminalize owning that firearm before the law was enacted…so people would have to “grandfathered” in or be given the buy-back option. Now if people tried to acquire assault weapons AFTER the ban was in affect then the ATF would have probable cause to request that information. Again not “whenever” they want only during the course of a criminal investigation. The ATF is not out to get you Bob.

        Your “human nature” argument is complete garbage. It reeks of “gun nut” paranoia. However even if we accept that foolishness as truth, our country is nations of laws, we are a republic. So despite your misguided fear of gun confiscation it doesn’t change the reality of law in our country. We have a system of checks and balances and it works rather well. The 2nd amendment and Supreme Court rulings have and will continue to GARANTUEE our
        right to own A firearm. Perhaps you won’t be allowed to own the “Bushmaster” AR-15 with the extended 30 round magazine, but that isn’t what the 2nd amendment protects. The 2nd amendment is not absolute, there are restrictions the government can place on that right just like it has with others. There are legal restrictions on your 1st amendment rights… Slander, child pornography, inciting speech, yelling fire in a theater, or bomb in air plane. Your fourth amendment rights…HELLO Patriot Act! The list could go on.

        Now moving on to YOUR characterization of my “it wont happen again” position. You completely missed what I am saying. You are referencing INDIVIDUALS, how they act, what they do. That is completely different than what action the government and agents of the government can legally do. Genocide in Africa, World War… these examples are entirely misguided. American people who don’t wear a seat belt will or could receive a ticket for not following the law and
        as such laws which are UN-constitutional cannot be enforced by the government, again our system of divided government will work that out.

        Lastly well if your only objection to background checks is the gun registry
        then we are good because no one is proposing that and the ATF despite your best efforts to distort what they can actually do…does NOT have access to those records “whenever they want”.

        • http://bobewoldt.com Robert Ewoldt

          First of all, let me clarify something with you… are you opposed to a national gun registry? Or is this something that, like the national Democratic leaders on this issue, you don’t think you can advocate for now, but you really want it later on?

          • Broc Middleton

            As a matter of principal I do oppose a national gun registry. I find the idea
            of national gun registry to be unnecessary information gathering by the
            government on its citizens. But also don’t have a fear of it either I know the legal precedent and confines placed on the government. I don’t see the “slippery slope” of massive gun confiscations as a natural step after a gun registry as you do. HOWEVER speaking more practically in the world today, with the electronic records, data mining and everything else… If
            you are going to be paranoid or fearful of the government, do you truly believe that the government needs a national gun registry to locate individuals who own firearms? If the government is out to get your guns they could find out who has them with a gun registry… if you don’t believe that you are ignorant or naïve. If you are going to use “gun nut” logic and the government wanted to find out who owned a gun and who didn’t they could illegally search your finances your credit cards, your online profiles, your internet activity etc…If the government wanted to know who had guns…they wouldn’t need a national gun registry to find out.

          • Broc Middleton

            without*** a gun registry…