As lawmakers grasp for responses to the Newtown, Conn., shootings, few options may be more effective and politically achievable than tightening the network of background checks for gun purchases. The searches are widely considered to be the most reliable way to ensure that bad actors can’t obtain guns legally. And just a few tweaks to the law would ensure that everyone who buys a gun through legal channels must first be checked against a database that sorts out felons, stalkers, and drug abusers.
It’s a far easier lift to improve the background-check system than to revive a defective, widely reviled, and weak assault-weapons ban, but since Newtown, assault weapons are making the headlines. Vice President Joe Biden will unveil a sweeping gun-control agenda in late January that will include as marquee items an assault-weapons ban and limits on high-capacity ammunition. Closing background-check loopholes falls under the fine print.
But it shouldn’t. Current law requires licensed firearms dealers to run potential buyers’ names and Social Security numbers through the National Instant Criminal Background Check System, or NICS. The system works pretty well, and if gun shops were the only places where people could go to purchase guns, it would work even better.
Gun-control advocates and the White House want to institute background checks for private sales, most of which happen at gun shows, accounting for almost half of the country’s purchases. Interstate trafficking of guns generally is 48 percent lower in states where private gun sales are regulated, according to a 2009 Johns Hopkins study.
Advocates also want to make NICS the definitive resource used to disqualify risky would-be gun owners by making sure it captures all legally identified mental-health patients or drug abusers. Many states are lax about reporting those people to NICS, and 19 states don’t participate in the system at all.
These fixes appeal to common sense, yet they are little more than a footnote in the public discourse about gun control. Here’s why.
Not Newtown. Not Aurora. Background checks carry almost no emotional resonance on a topic where gut feelings dominate. Last year’s mass shootings in Newtown and Aurora, Colo., were committed by sociopathic assailants who killed in waves by brandishing big guns and lots of ammo. “To be able to wreak that much havoc is jarring to people,” said James Sullivan, a federal-relations officer for Boston Mayor Thomas Menino, who founded the gun-control group Mayors Against Illegal Guns with New York City’s Michael Bloomberg.
Ever practical, that group didn’t bother to take a position on assault weapons until after the Newtown shootings. The 800-plus mayors recently endorsed the ban only because Congress and the White House are entertaining the idea. The expired assault-weapons ban was considered nearly useless—it was riddled with loopholes and it grandfathered in existing assault rifles—and it’s probably not worth the major political struggle it would take to reenact it. Still, a Bushmaster AR-15 with a 30-round magazine clip makes a more compelling picture than the NICS headquarters in Clarksburg, W.Va., one that gun-control advocates can better exploit.
Tricky Legal Questions. Background checks are easy when it comes to criminals. Ninety-five percent of the public and 74 percent of National Rifle Association members support a system that checks gun buyers against a list of felons.
It gets more complicated, both politically and legally, to track drug abusers or mental-health patients. It’s not always clear who qualifies under federal law as “an addict of a controlled substance” or an “adjudicated mental defective.” Even with clear-cut cases—a person who has been involuntarily committed to a mental institution—listing patients’ names in the database could have legal consequences under health privacy laws.
There are also potential state/federal conflicts to expanding background checks to private gun sales. Licenses to sell firearms are federal, but states hold the ultimate legal authority on background checks. The feds can’t compel states to submit names to NICS or to act as liaisons between dealers and federal law enforcement, although many states participate voluntarily. Dealers in states that don’t oblige contact the FBI for background checks.
The easiest way for Washington to close the private-sale loophole would be to require all gun sellers to be federally licensed. But that proposal could produce a double-edged backlash of alarming law-abiding gun-show aficionados and inviting states’ rights court challenges.
Too Easy. There is less disagreement about background checks than other gun-control issues, which means the administration may want to go for a larger bite of the apple. The most hard-core Republicans say that background checks are OK. Rep. Jim Jordan of Ohio, a tea party favorite, said he supports them for people seeking to carry a concealed weapon. Sen. Ted Cruz of Texas said he wants to strengthen NICS. Gun owners and dealers say that broadened background checks are a good idea. Still, neither Jordan nor Cruz has mentioned closing the gun-show loophole.
Talk of banning assault weapons ups the ante for all involved, but some gun-control supporters worry that more-ambitious goals will taint the whole effort by galvanizing opponents into resisting every possible fix. “This package idea may not be the best idea. You throw poison pills in there, and you give people an excuse to vote no,” said Rep. John Yarmuth of Kentucky, who is part of the House Democrats’ task force on gun policy that formed after the Newtown tragedy.
Yarmuth would rather tackle background checks first because passage of a bill is achievable—and would have the greatest and most immediate impact. But he is a single voice amid a loud chorus of outrage.
This article appears in the Jan. 12, 2013, edition of National Journal as Deep Background.