With the recent tragedies still fresh in the heads of Americans, a new wave of gun control measures have been unveiled on both sides. They range from arguably benign to a massive dismantling of the rights gun owners hold dear, and the country is divided every step of the way. One such measure seems to be getting quite a bit of traction – universal background checks. It sounds easy, it sounds catchy, and it sounds like something rather “common sense” that any law-abiding American could get behind. After all, if you’re a law-abiding citizen, why would you be so concerned about going through the same background check you’d go through at a store? The ten minute process isn’t so awful, is it? As someone who’s been on both sides of the counter, I’ve seen the ease of the background check process. Most of the time is spent on proofreading or correcting small errors on the form with initials and dates, and the shortest portion of the process is usually the actual background check phone call itself. Understandably, many see this as an easy, non-intrusive method of stopping criminals from buying firearms off of the FFL market.
But it’s not so simple.
For the sake of time and space, I’ll concentrate on just the universal background check process and it’s implications. We’ve all heard about fighting the government and the statistics about where criminals get their guns and this percentage compared to that percentage, and frankly, I don’t want this to be another one of those arguments. They’re generally pulled from whatever source is most sympathetic to the ideology of the writer anyway. I’m concentrating on the simple logic behind this seemingly “common-sense” measure.
First, consider the 300 million firearms currently in the hands of Americans. Let’s just be kind tothe NFA crowd (and to avoid heroic math), and say that 50 million of those are NFA firearms or otherwise federally registered. Because there is no process of federally registering a Title I firearm, there are roughly 250 million firearms which currently are not registered with the federal government. Because there is no federal requirement to go through a background check during a private sale, there isn’t even a real method of which to track firearms once they leave an FFL. They can legally change hands several times over the course of a very short period of time (assuming no other laws are broken). Some see this fact as a deterrent to tyrannical government, some see firearms as another form of property to do with what they wish, and some become very concerned at the thought of 250 million “lost” guns around the country. Lets assume now that I have a firearm that you want, and I’m willing to sell it to you. We live in the same state, which does not currently require a state background check or registration, so we can simply meet up and conduct a face to face transfer. We plan to meet up tomorrow half-way between our homes, but a law is passed today that require all private transfers to undergo a background check starting tomorrow. Anyway, tomorrow comes and you and I meet up anyway and conduct a private sale without a background check. We just backdate a bill of sale, or have a spoken agreement, that the transfer actually happened yesterday. How would anyone know any different? If the federal government can’t prove who had the firearm on the day the law was passed, how can they prove that we truly didn’t transfer it yesterday? They can’t. And this is the loophole that all 250 million currently unregistered guns have. The only way to know, and prove in court beyond a reasonable doubt, if an illegal transfer has occurred is if there is mandatory registration that precedes the universal background check. That way, the government knows where every gun in America is, and they’ll have that evidence in court for every transfer that occurs. So, lets talk about registration.
To many people, the passing of the Firearms Owners Protection Act was “the day the machine gun died”. It became an instant windfall for any who had a machine gun, as supply immediately went to zero indefinitely though demand was still high (and still is today, if you have the cash). One other portion of the FOPA was the restriction of firearm registration by the federal government. Now, surely the ATF and other three letter organizations can find easy ways around that, but in a strictly official sense, there can not be any firearm registration as long as that law is still around. Now, I don’t think anyone foresees that law being struck down (after all, I’ve already made the slippery slope case), but lets just speculate about if it was. Most likely, the registration process would be similar to that of the current NFA registration process (which takes place for Title II firearms). This process is safe from Freedom of Information requests by individuals because the forms themselves are considered to be a tax return (and subject to taxpayer protections). However, this process is also lengthy. The few times I’ve gone through this process, it’s taken six months to complete, with 99% of the time spent waiting on the ATF. Lets assume that between the ATF/NFA and the FBI (who does the background check portion of the forms), there are 100 individuals that currently work toward getting you your forms back. The estimate is probably high, but again, 100 is for the sake of simplicity. The ATF website currently shows that the NFA processed 137,649 forms for fiscal year 2012. Now, lets enact Title I registration, and throw all 250 million firearm forms at the NFA (that’s about 1,816 times more than 137,649). If the NFA remained unchanged, the once six month wait time would increase to 908 years. Now, maybe if you’re Yoda or the knight from Indiana Jones and the Last Crusade, this is not an issue, but for the rest of us real people, it is, and that fact will not be lost on the lawmakers who would attempt to make the process reasonable. Logic states that we would have to hire approximately 1,816 times more people to ensure the forms would be done in the same amount of time as they currently are. Who’s going to pay for the salaries and office buildings of 180,000+ more federal agents? Of course, this surge will be temporary, but we’ll still need to account for the millions of gun purchases and registrations made after that point. In 2012, there were over 16 million NICS checks performed by the FBI. Let’s just say that enough people are turned off by the idea that it drops to 10 million from here on out. We’ll still need 100 times more agents now than before to keep the process at six months. Let’s not even talk about how many times the NFA loses paperwork or Anonymous’ superb hacking skills.
Finally, we come to the best part. Registration is an annoyance at best for those who are law abiding. It’s just another law not to follow if you’re a criminal. The funniest piece of this puzzle comes from a supreme court case Haynes v. United States from 1968. In that case, a prohibited possessor (Haynes) was caught with an unregistered Title II firearm and was charged under the newly enacted GCA and for the NFA (Title II) violation. The court held that, as a felon, he can not be required to register an NFA firearm because in doing so, he’s admitting that he is in possession of one. This violateshis 5th amendment protection against self-incrimination, and he was only prosecuted under the GCA. The point here is that criminals won’t register because they’re criminals, but even if they are caught, they aren’t breaking any laws by having an unregistered firearm. So what’s the point? It’s one more law that law-abiding people will follow and one more law that criminals will ignore. The best part, however, is that law-abiding citizens are required to follow this law, and criminals are exempt and cannot be charged with the crime.
Let’s be honest here, these situations are both nonsensical, and are unlikely to become reality any time soon. But the illogical standpoint of those who fail to think through the baggage that many sweeping laws carry are beginning to sway the statistics. An overwhelming majority of Americans now support universal background checks, but how many of those truly know what they’re asking for? It’s an unfortunate period of knee jerk reactions and a plea from both extremes to preserve our country. As for me, I remain optimistic that tragedies can be thwarted by proper parenting and addressing mental health issues. The problem is not that “you can own a gun that can kill 20 children at a school”, the problem is that anyone would actually kill 20 children at a school. How far gone do you have to be for that mindset to emerge? Certainly it wasn’t spur of the moment. We can catch this if we try and if we’re responsible about our society. It beats waiting until 2921 A.D. for your next purchase to go through.
This guest article was written by Zach, a decorated Marine infantryman who took part in the first push into Fallujah in early 2004. He also has a degree in math.