Are you familiar with these three ways that guns change hands?
• Straw purchaser
• Lost or stolen firearms
• Private party sales
The USA has 100 firearms per 100 residents, more than any other country in the world. But the burden of firearm injuries and firearm deaths is not spread evenly throughout the country. We look at death tolls simply because they are the easiest objective parameter to measure. It is a binary parameter; either the person died from the gunshot or they survived.
The purpose of this diary is to provide a factual resource for gun safety advocates* who wish to understand the terms "straw buyer" and "background check" as they are defined under current federal law. The excerpts below list persons who cannot legally buy guns from a federally licensed firearms dealer (FFL). Please take a look. You might find yourself as surprised as I was that current law already goes far beyond "felon" and "mentally ill."
*A gun safety advocate is defined herein as anyone who seeks to reduce the risk of injury and death by accidental or intentional discharge of firearms.
The long term toll of gunshot injury and death is born by those who survive. It's the person who loses a limb or a major life function, such as eyesight or the ability to sleep through the night. It's those who can no longer earn a living. It's the family and friends who care for the injured. It's the children who grow up without a parent. It's the newly single parent who must pick up the pieces and support the whole family on one income. It's those who will be haunted by the violence. It's the community health services. It's the employer(s) who must absorb the sudden loss of a key employee. It's the elder person who relied on the victim for occasional help so they can continue living independently in their own home. It impacts the shooter and their families too; the one who in the heat of the moment thought they had a right to pull the trigger, but who now faces prosecution because their judgment was compromised in some way, or their understanding of the law was incorrect.
It's such an important point that it bears repeating. Accidental and intentional shootings leave shattered lives. A tally of firearm injury and death does not even begin to account for the myriad forward costs born by all those who survive, which includes:
• Those who witness a shooting
• Those who survive the deceased
• Those who survive an accidental or intentional shooting
Let's get back to our original question: "How do so many guns find their way into homes and hands where injury and death result?" We can take a step toward understanding this complex problem by understanding a few basic terms, a background check, a straw buyer, and who is prohibited under current law from buying guns.
Federal Background Check 101:
A firearm transfer is when a legal owner transfers possession of a firearm to another party. The gun owner might sell it, trade it, lend it, or give it away. A background check of a potential buyer can help to ensure that when the first legal owner of a firearm sells their firearm, trades their firearm, lends their firearm, or gives away their firearm, they will be transferring the firearm to a person who is legally permitted to own guns.
Under current law, most states allow firearm transfers between private parties without background checks. The intention behind the exemption was to allow individuals to transfer possession of a firearm from their personal collection to someone they know. In principle, lawful gun owners are trusted to be cautious about selling guns to people they don't know, and to avoid transfers to those who might not be permitted to own firearms.
The exemption for private party sales was not intended to enable unlicensed firearms dealers to buy and sell dozens, hundreds, or thousands of firearms without conducting any background checks. If the seller knows the buyer couldn't pass a background check a sale to that person is illegal for the buyer and the seller. If the seller doesn't know the buyer couldn't pass a background check then the sale is legal for the seller, but is still illegal for the buyer. In practice, many private party sales operate under a don't ask/don't tell policy. Under cover of personal ethics and a policy of "what I don't know won't hurt my bottom line" thousands of firearms are bought and sold at gun shows without background checks. All across the nation. Every weekend. Private party sales at gun shows are known as the "gun show loophole."
A straw buyer is a person who, knowing they can pass a background check, relies on information about themselves to buy a firearm for someone else. Straw purchases are illegal.
A background check for a potential firearm purchase:
• Screens the potential buyer.
• Form 4473—Firearms Transaction Record (information is supplied by buyer)
• Performed by a federally licensed firearms dealer (FFL).
• Relies partly on accurate reporting by both buyer and dealer.
• Relies partly on matching information in the NICS database (National Instant Criminal Background Check System)
Many proposals intending to improve gun safety seek to decrease gun violence by expansion of background checks to private party transfers. Proposals for "Universal Background Checks" or "Comprehensive Background Checks" seek to simply require that firearms transfers be recorded through a Federal Firearms Licensee (FFL) (aka a federally licensed firearms dealer) so that background checks can be conducted on every potential buyer (or new owner), every time a gun is transferred.
Do you know?
• Who is prohibited from purchasing a firearm? (under federal law)
• When is a Federal Firearms Licensee required to conduct a background check before transferring a firearm to someone? (some sales are exempt)
• What information is collected from the buyer? (Form 4473)
The links and excerpts below may help fill in some gaps so we can discuss existing and proposed regulations with other gun safety advocates. We all need to know what to ask for when we demand that our elected leaders allocate adequate funding to improve enforcement of existing law.
Federal Firearms Licensee Quick Reference and Best Practices Guide
(A few excerpts)
The Importance of Compliance with Federal Firearms Laws & Regulations
Ten Violations Having an Impact on Public Safety
1. Failure to Obtain a Form 4473—Firearms Transaction Record When Required.
2. Failure to Obtain a Complete and Correct Form 4473.
3. Failure to Conduct a Background Check When Required.
4. Sale or Transfer of a Firearm to Prohibited Person.
5. Improper Sale to a Non-Resident.
6. Failure to Obtain Appropriate Identification Documents.
7. Failure to Record Complete and Accurate Acquisition and Disposition Information.
8. Failure to Report the Sale of Multiple Handguns.
9. Failure to Report Lost or Stolen Firearms.
10. Providing False Information.
You must conduct a National Instant Criminal Background Check System (NICS) check or appropriate State background check for each and every sale or other transfer of a firearm to a non-licensee. The NICS or State background check ensures that any person who purchases a firearm from you may lawfully possess firearms. A NICS or State background check MUST be conducted before:
1. The sale or trade of a firearm;
2. The return of a consigned firearm;
3. The redemption of a pawned firearm;
4. The loan or rental of a firearm for use off of your licensed premises; or
5. Any other non-exempt transfer of a firearm.
Failure to conduct a background check has a significant impact on public safety. You could be fined, have your license suspended or revoked, or be prosecuted.
Note: You may only deliver the firearm to the person on whom the NICS or State background check was conducted and NOT a spouse, relative, or other representative of that person.
Exceptions to the Background Check Requirement:
You are NOT required to conduct a NICS or State background check with respect to the following:
1. The sale or transfer of a firearm where the transferee presents a valid State permit/license from the State in which your licensed premises is located AND the State permit or license is recognized by ATF as a qualifying alternative to the background check
2. The transfer of a firearm to another FFL (including collectors when transferring a Curio & Relic firearm);
3. The return of a repaired firearm to the person from whom it was received;
Prohibited TransfersWe recommend that you refer to the most recent edition of ATF’s State Laws and Published Ordinances–Firearms.
You MAY NOT sell or transfer a firearm or ammunition to any person you know or have reasonable cause to believe is prohibited from possessing or receiving a firearm. Do not sell or otherwise transfer a firearm and do not contact NICS if you have reason to believe that a person seeking to obtain a firearm is prohibited from receiving or possessing a firearm.
Note: If a person answers “No” to Item 11.a or 12 of Form 4473, or answers “Yes” to one or more questions in Items 11.b through 11.l of Form 4473, that person has given you reason to believe he or she is prohibited and the transaction must be stopped.
You MAY NOT sell or transfer a firearm or ammunition to any of the following prohibited persons or in the following circumstances:
1. Straw Purchaser: A “straw purchaser” is a person who is not the “actual buyer” of the firearm; that is, a person who obtains a firearm for another person. Straw purchases are a primary source of firearms used in crime. If you suspect that a transaction is a straw purchase or there are suspicious circumstances surrounding the potential sale—such as one person picking out the firearm, handling the firearm, and providing the payment for the firearm while another person completes the Form 4473—you should not sell the firearm. Similarly, if one person attempts to purchase a firearm, NICS denies or delays the attempted purchase, and another person with him or her attempts to buy the same firearm, you must not complete this sale.
2. Person Under Indictment: A person “under indictment” includes any person who has been charged by indictment or information in any court with a crime for which he or she may be sentenced to a term of imprisonment exceeding 1 year.
3. Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding 1 Year: This prohibited person category includes any person who has been convicted of a felony or other crime for which the person could have been sentenced to imprisonment for a term exceeding 1 year—EVEN if the court actually placed the person on probation or sentenced the person to a term of imprisonment for 1 year or less.
4. Fugitive from Justice: A fugitive from justice is a person who has fled from any State to avoid prosecution for a crime (felony or misdemeanor) or to avoid giving testimony in any criminal proceeding.
5. Unlawful Drug User or Drug Addict: This prohibited person category includes any person who unlawfully uses—or is addicted to—marijuana, depressants, stimulants, narcotic drugs, or other controlled substances. Alcohol is NOT considered a controlled substance.
6. Adjudicated Mental Defective or Person Involuntarily Committed to a Mental Institution: This prohibited person category includes any person who has EVER been adjudicated by a court, board, commission, or other lawful authority to be, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease, a danger to himself or herself or to others or to lack the mental capacity to contract or to manage his/or her own affairs. This category also includes any person who has been subject to a finding of insanity in a criminal case, including a finding that he or she is incompetent to stand trial. Also included is any person who has EVER been formally committed to a mental institution by a court or other lawful authority. This category does NOT include a person committed to a mental institution solely for observation or a person who was voluntarily admitted to a mental institution.
7. Person Dishonorably Discharged from the Military: A person is considered dishonorably discharged only if he or she was separated from the Armed Forces of the United States as a result of a dishonorable discharge or a dismissal adjudged by a general court-martial. This prohibition does NOT include persons with a bad conduct discharge or any other less than honorable discharge.
8. Person Subject to a Restraining Order: This prohibited person category includes any person who is currently subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner, child of the person, or child of the intimate partner OR engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the intimate partner or child. The court order must meet the specific requirements of 18 U.S.C. § 922(g)(8) to be prohibiting.
9. Person Convicted of a Misdemeanor Crime of Domestic Violence: This prohibited person category includes any person who has EVER been convicted in any court of a misdemeanor crime of domestic violence regardless of the title of the offense. The offense must meet the definition of “misdemeanor crime of domestic violence” in 18 U.S.C. § 921(a)(33). Note: Unlike other prohibited person categories, law enforcement officers purchasing firearms for official use are NOT exempt from this prohibited person category.
10. Person who has Renounced U.S. Citizenship: A person has renounced his or her United States citizenship if he or she takes formal steps to renounce her/his citizenship before a diplomatic or consular officer or before an officer designated by the Attorney General during a time of war.
11. Aliens Illegally or Unlawfully in the United States: This prohibited person category includes any person who unlawfully entered the United States or who illegally remains in the United States after his or her authorized period of stay has expired.
11a. Nonimmigrant Aliens: A nonimmigrant alien is an alien who is lawfully in the United States on a temporary basis for purposes of travel, business, study, etc. The term does NOT include a permanent resident alien (someone who possesses a “green card.”) A nonimmigrant alien may only purchase or receive a firearm if he or she: (a) was admitted to the United States for lawful hunting or sporting purposes or presents a valid hunting license or permit issued by a State; (b) qualifies as a foreign diplomat, official, or law enforcement officer as defined at 18 U.S.C. § 922(y)(2); or (c) has received a waiver of the prohibition from the Attorney General.
12. Sale of a Firearm or Ammunition to a Person Under Age 18: You may not sell or deliver a firearm or ammunition to a person you know or have reasonable cause to believe is less than 18 years old.
13. Sale of a Handgun or Handgun Ammunition to a Person Under Age 21: You may not sell or deliver a firearm other than a rifle or a shotgun—or ammunition other than rifle or shotgun ammunition—to a person who you know or have reasonable cause to believe is less than 21 years old. A firearm frame or receiver is not a rifle or shotgun and may not be sold to a person under 21 years old.
14. Sale in Violation of State Law or Published Ordinance: You may not sell or deliver a firearm to any person in any State where the purchase or possession would be in violation of a State law or published ordinance.
As noted above, under Federal law, the minimum age to purchase firearms and ammunition from an FFL is 18. If the firearm is other than a rifle or a shotgun—or ammunition for other than a rifle or a shotgun—the minimum age is 21 [18 U.S.C. 922(b)(1)]. However:
1. You may sell ammunition that is interchangeable between rifles and handguns to a buyer who is at least 18 years of age if you are satisfied that he or she will use the ammunition in a rifle.
2. Regardless of less restrictive State and local age requirements for firearms and ammunition purchases, you must adhere to the above Federal mininum age
Transfers Between LicenseesQuestions for the potential buyer of a firearm on Form 4473-Part I
Generally, FFLs may transfer firearms to other FFLs, including interstate transfers, without completing Form 4473 for these transactions. In these instances, the following procedures must be followed:
1. Transactions between licensees must be recorded in the bound book (Acquisition and Disposition or A&D) records of both licensees.
2. The FFL who is buying the firearm must furnish a certified copy of their license to the selling FFL prior to the transfer of any firearm. This certified copy may be emailed or faxed.
In addition to their name, address, and other identity information a potential buyer is asked the following Yes/No questions.
11a. Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: you are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If yo?u are not the actual buyer, the dealer cannot transfer the firearm(s) to you. (See instructions for questions 11.a) Exception: if you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a and in the proceed to question 11.b.
11b. Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year? (See instructions for questions 11.b)
11c. have you ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence under probation? (See instructions for questions 11.c)
11d. Are you a fugitive from justice?
11e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?
11f. Have you ever been adjudicated mentally defective ( which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others were incompetent to manage your affairs) OR have you ever been committed to a mental institution? (See instructions for questions 11.f)
11g. Have you ever been discharged from the armed forces under dishonorable conditions?
11h. Are you subject to a court order restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner? (See instructions for questions 11.h)
11i. Have you ever been convicted in any court of a misdemeanor crime of domestic violence?
11j. Have you ever renounced your United States citizenship? (If no, proceed to question 13.)
11k. Are you an alien illegally in the United States?
11l. Are you an alien admitted to the United States under a nonimmigrant visa? (See instructions for questions 11.l)
12. If you are an alien admitted to the United States under a nonimmigrant visa, do you fall within any of the exceptions set forth in the instructions? (See instructions for questions 12)
13. What is your state of residence?
14. What is your country of citizenship?
15. If you are not a citizen of the United States what is your US-issued alien number or admission number