Before this week, It had been nearly a quarter-century since any gun reform had cleared the House of Representatives. No surprise, since Democrats—with rare exceptions the only congressional source of more restrictions on firearms—held the House majority for just six of those years, two of them in the 21st century. With a strong Democratic majority in place now, the House passed two gun reform bills this week to strengthen FBI background checks on anyone seeking to buy a firearm. Nobody expects the Republican-controlled Senate to approve the bills, especially since such legislation would take 60 votes to pass there. Neither should anybody expect what happened this week to release a deluge of gun reform bills, at least not before 2021.
But the passage of these indicates a new attitude among many House Democrats who had for years bent before the rhetoric and campaign contributions of the increasingly shrill and extremist National Rifle Association. It also put a universal background check bill into the public arena for the first time since 2013, something the vast majority of Americans support whether or not they own firearms. A panel of 32 scholars of criminology and public health reported in a 2017 study that universal background checks are the most effective policy to prevent gun deaths, ranking it first of 29 potential gun-related policies.
As reported here this week and early last month, the first of the two bills, H.R. 8—the Bipartisan Background Checks Act of 2019—would extend to all private sales or other transfers the existing requirement that anyone seeking to buy a firearm from a licensed dealer must undergo a background check to determine whether they are legally allowed to own one. The bill was sponsored by Democratic Rep. Mike Thompson of California and Republican Rep. Peter King of New York. It passed on a vote of 240-190, with support from seven additional Republicans and opposition from two Democrats, Reps. Jared Golden of Maine and Collin Peterson of Minnesota.
Felons, people committed to mental health facilities or adjudicated a “mental health defective,” fugitives from justice, domestic abusers, drug addicts, those "subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner," renouncers of their U.S. citizenship, and dishonorably discharged members of the military whose status shows up in a background check are all prohibited from buying or possessing a gun.
But federal law does not require background checks for private transfers. That means any of those proscribed persons can, for instance, make contact with a seller over the internet, meet them at their house or a parking lot or wherever, and buy a gun or a bunch of them. While the buyer who does that is breaking the law, the seller is not. It’s estimated that about a fourth of the nation’s gun sales are between private parties and conducted without background checks. If H.R. 8 were enacted, it would change that by requiring the seller and buyer to make their transaction through a licensed dealer who would run a background check for a fee. There are narrow exemptions in certain law enforcement and gift weapons among immediate family members.
Thirteen states and the District of Columbia mandate background checks for handguns. Eleven and D.C. require them for all firearms.
The second bill, H.R. 1112—the Enhanced Background Checks Act of 2019—would extend the time allowed for background checks to clear from the current three days to 10 days. After that 10-day period, would-be buyers could request “an escalated review to spur the FBI to complete its investigation” if the background check isn’t completed. If the background check is still not completed after that period, the sale can be processed. Supporters noted that if this bill—called a fix for the “Charleston loophole”—had been law four years ago, Dylann Roof, who murdered nine black members of a prayer circle in a Charleston, South Carolina, church in 2015, would not have been able to obtain his firearm legally. The three-day limit wasn’t long enough for the FBI to complete its background check of Roof.
The legislation, initiated by House Majority Whip James Clyburn and Rep. Joe Cunningham, both South Carolina Democrats, and Republican Rep. Pete King again, passed in a 228-198 vote. Besides King, two other Republicans joined Democrats in supporting the measure. Opting to buck the party stance, seven Democrats voted against the bill: Reps. Golden and Peterson; Reps. Kendra S. Horn of Oklahoma; Ron Kind of Wisconsin; Ben McAdams of Utah; Xochitl Torres Small of New Mexico; and Anthony Brindisi of New York.
Taking note of the obstacle presented by the Senate, Clyburn said: "Keep passing legislation. One day, It may get unstuck. I am putting forth legislation on my side of the aisle, on my side of the Capitol that I know is wanted by my constituents." When and if the bills get considered by the Senate, the opposition can be expected to raise the same issues unsuccessfully put forth by the Republicans in the acrimonious House debate.
One contention is that background checks don’t stop criminals from acquiring guns because they won’t even try to get one from a licensed dealer. But supporters say that is bunk, and note that some 3 million proscribed individuals have been stopped from such purchases since the background check law went into effect. Universal background checks in the 13 states that require them have also blocked thousands of sales.
What critics call the spectre of a gun registry is one of the issues that helped kill the 2013 attempt to pass a universal background check in the Senate after the Sandy Hook Elementary School massacre of 26 students and staff. Of H.R. 8, Republican Rep. Mo Brooks said:
“Criminals don’t follow laws,” he said. “Law-abiding gun owners will suffer if this law is enacted, while criminals will continue to flout the law and acquire guns by illegal means. The bill serves to create a federal government registry of who has firearms and what kind— information that could lead to future Second Amendment violations by a gun-grabbing federal government.”
Brooks and other foes say background checks won’t work without a registry, and they fiercely oppose having one. They say it would be a list officials could use if they decided to confiscate everyone’s firearms.
Currently, the only existing registry is the one listing owners of fully automatic weapons. These are exceedingly hard to obtain legally and extremely expensive, and require an extensive background check of would-be buyers that can last a year. The only firearms ever confiscated since that list has been in existence the past 85 years have belonged to listed owners who have engaged in criminal acts.
No registry for other firearms is even possible under the existing background check law or the one H.R. 8 would impose. If someone seeks to buy a gun from a licensed dealer now, they must fill out a copy of ATF Form 4473. This includes name, address, and birthday, and affirms that the person is not prohibited from buying a firearm. The dealer then calls the FBI’s National Instant Check System or logs onto the NICS website. The name and other information is compared with the NICS database. If no records are found, the dealer is told he can proceed with the sale.
Typically, that process takes a few minutes. But NICS has three days to complete the check. Once the sale is completed, the NICS system destroys all records of the check within 24 hours. The only place the seller’s name remains is in the seller’s paper log, which can be destroyed after 20 years. Those logs are supposed to be audited every 12 months, but understaffing makes audits of the nation’s nearly 60,000 licensed gun dealers impossible. Right now, it would take the Bureau of Alcohol, Tobacco, Firearms and Explosives 22 years to audit every dealer one time.
Given the record of rare gun confiscations from people on the existing registry of automatic weapons, silencers, and gadget guns, background checks ought to be backed by a federal registry of all guns, with a staff big enough to back it up. But passing such a bill in either house of Congress is not likely without supermajorities of Democrats in both of those bodies.