The idea of “universal background checks” sounds appealing, and gun experts that I talk to say that improvements in the National Instant Check System can indeed be made. Such changes, however, are neither simple nor cost-free, and their effectiveness will be limited at best. The NRA recently sent an extensive letter to all members of Congress on this topic, which you can read in its entirety here. This is the executive summary:
NRA and NICS
The National Rifle Association supported the establishment of the National Criminal Instant Background Check System (NICS), and we support it to this day. At its creation, we advocated that NICS checks be accurate; fair; and truly instant. The reason for this is that 99% of those who go through NICS checks are law-abiding citizens, who are simply trying to exercise their fundamental, individual Right to Keep and Bear Arms.
Since 1986, those engaged in the business of selling firearms for livelihood and profit have been required to have a Federal Firearms License (FFL). All retail sales of firearms currently require a NICS check, no matter where they occur. [Ed.: In other words, there is no "gun show loophole."]
Regarding the issue of private firearms sales, it is important to note that since 1968, it has been a federal felony for any private person to sell, trade, give, lend, rent or transfer a gun to a person he either knows or reasonably should know is not legally allowed to purchase or possess a firearm.
Mental Health Records and NICS
According to a recent General Accounting Office study, as of 2011 23 states and the District of Columbia submitted less than 100 mental health records to NICS; 17 states submitted less than ten mental health records to NICS; and four states submitted no mental health records to NICS.
A common misrepresentation is that criminals obtain firearms through sales at gun shows.
A 1997 Bureau of Justice Statistics survey of state prison inmates who had used or possessed firearms in the course of their crimes found that 79 percent acquired their firearms from “street/illegal sources” or “friends or family.” Only 1.7 percent obtained firearms from anyone (dealer or non-dealer) at a gun show or flea market.
In 2010, the FBI denied 72,659 NICS checks out of a total of 14,409,616. But only 62 of these cases were actually prosecuted, and only 13 resulted in a conviction.
“Universal Background Checks”
While the term “universal background checks” may sound reasonable on its face, the details of what such a system would entail reveal something quite different. A mandate for truly “universal” background checks would require every transfer, sale, purchase, trade, gift, rental, or loan of a firearm between all private individuals to be pre-approved by the federal government. In other words, it would criminalize all private firearms transfers, even between family members or friends who have known each other all of their lives.
According to a January 2013 report from the U.S. Department of Justice’s National Institute of Justice, the effectiveness of “universal background checks” depends on requiring gun registration. In other words, the only way that the government could fully enforce such a requirement would be to mandate the registration of all firearms in private possession – a requirement that has been prohibited by federal law since 1986.Two points quickly emerge from these data. First, the federal government is doing a poor job of enforcing existing laws. Felons who try to buy guns illegally are rarely prosecuted. More important, hardly any criminals even attempt to buy guns through legal channels. Typically they either steal firearms or get them from fellow gang members or other illegal sellers. When they do obtain guns from licensed dealers, they normally have a friend–usually a young woman–buy the gun for them. Such “straw purchases” have long been illegal, but no adequate effort is made to prosecute straw purchasers. Moreover, firearms-related prosecutions have declined dramatically under Barack Obama and Eric Holder. As is so often the case, before passing new laws we should do a better job of enforcing the ones already on the books. Firearms are already heavily regulated.
Second, the background check system is largely non-functional as it relates to the mentally ill. The common element in mass shooting cases is that the shooter is nuts, by any reasonable definition, and is known to be mentally ill by any number of people, especially family members. But the mental institutions have been emptied now for several decades, and even when family members try to take their concerns to law enforcement, they generally get nowhere. One practical improvement in the NICS would be to make it easy for relatives and others to ban mentally ill people from buying firearms. A friend who is a gun dealer writes:
Legislation could require the reporting to the National Instant Check System (NICS) of individuals with known behavior problems or mental health issues that make them a danger to themselves or others. This reporting would result in a denial at the time of purchase from a dealer.
It could also institute a hot line to NICS so family members can easily report to NICS.
It would then be necessary to develop an appeal process for those who may be falsely accused by people seeking to cause them trouble.