A background check is a procedure used to determine whether or not an individual is eligible to buy a firearm
• Under current law, if a person who is not a federally licensed gun dealer wants to purchase a gun from a federally licensed gun dealer, they must first complete a background check.
• A federally licensed gun dealer is a person who buys and sells firearms repeatedly for profit and as a principal source of their livelihood.
• People who occasionally buy and sell firearms are not required to be licensed federally as a gun dealer. Unlicensed persons, however, are only allowed to buy and sell firearms in the state where they live.
• Current federal law does not require background checks for firearms transactions between two unlicensed persons over the age of 18 who live in the same state.
• Background checks are conducted either electronically or over the phone using the National Instant Criminal Background Check System (NICS), which is maintained by the Federal Bureau of Investigation (FBI).
• Once the potential buyer provides their name, sex, race, date of birth, and state of residence, the system will provide one of four responses: proceed, denied, delayed proceed, or cancelled.
• Since it was launched in November of 1998, the NCIS system has processed over 300 million background checks and denied over 1.5 million firearm purchases.
• Online background checks take 107 seconds, on average.
• There are ten categories of people who are ineligible to receive firearms.
• These categories include fugitives, unlawful drug users, mental defectives, unauthorized immigrants, juveniles, and others. The main source of these eligibility criteria is the Gun Control Act of 1968.3
On August 8, 2019, President Trump told reporters, "Frankly, we need intelligent background checks," He added, "On background checks, we have tremendous support for really common sense, sensible, important background checks."
According to the polls, there are few issues with as broad support as universal background checks — 89% overall said they supported background checks for gun purchases at gun shows or other private sales, in a July NPR/PBS NewsHour/Marist poll. Even 84% of Republicans are in favor of them, according to the poll.
According to a poll done in January 2013 by Johns Hopkins University, 84% of gun-owners and 74% of NRA members (vs. 90% of non–gun-owners) supported requiring a universal background-check system for all gun sales
A CBS News/New York Times poll, also from January 2013, found that background checks on all potential gun buyers were favored by 85 percent of NRA households. And a February 2013 poll by the Pew Research Center for the People and the Press found that 74 percent of people in NRA households favored making private gun sales and sales at gun shows subject to background checks.
Current laws have dangerous loopholes
People who occasionally buy and sell firearms are not required to be licensed federally as a gun dealer. Current federal law does not require background checks for firearms transactions between two unlicensed persons over the age of 18 who live in the same state. A study found that such purchases account for 22% of gun sales. Additionally, a survey of prisoners convicted of gun offenses revealed that Nearly all (96.1%) offenders who were legally prohibited from purchasing a gun acquired their gun from a supplier not required to conduct a background check.
Background checks can keep guns away from people who are legally prohibited from having them
Since the federal background check requirement was adopted in 1994, over 3 million people legally prohibited from possessing a gun have been stopped from purchasing a gun or denied a permit to purchase. More than 35% of these denials involved people convicted of felony offenses.
Background checks should not be expanded
Groups such as the National Rifle Association (NRA) oppose the expansion of background checks.
Existing law is sufficient -
• Federal law prohibits transferring a firearm to anyone known or believed to be prohibited from possessing firearms. (18 USC992(d))
• Federal law prohibits a non-licensee from acquiring a handgun outside his state of residence and prohibits a non-licensee from acquiring a rifle or shotgun from a non-licensee outside his state of residence. (18 USC 992(a)(3))
• Federal law prohibits anyone from transferring a handgun to a non-licensee who resides in another state (with rare exceptions), and prohibits a non-licensee from transferring any firearm to a non-licensee who resides in another state. (18 USC 922(a)(5))
• Federal law prohibits the acquisition of a firearm on behalf of a person who is prohibited from possessing firearms. (18 USC 922(h) and 922(a)(6))
• Federal law prohibits anyone from providing a handgun to a juvenile (person under age 18), and prohibits juveniles from possessing handguns, with limited exceptions. (18 USC 922(x))
• Federal law also prohibits dealers from selling rifles or shotguns to persons under age 18. (18 USC 922(b)(1))
Background checks are ineffective at keeping guns away from criminals
A 2016 Department of Justice survey of prisoners who possessed a firearm during the offense for which they were serving found that only 7% of them had purchased their firearm under their own name from a licensed seller. More than half (56%) had either stolen it (6%), found it at the scene of the crime (7%), or obtained it off the street or from the underground market (43%). Most of the remainder (25%) had obtained it from a family member or friend, or as a gift.
People prohibited from buying guns can also get around background checks by having someone who can pass a background check purchase it for them (this practice is illegal and known as “straw purchasing”).
Expanding background checks would increase firearm registration, which the NRA opposes.
In 2013, the Department of Justice said that background checks on all firearm transfers “depends on . . . requiring gun registration.”
NRA arguments against registration as -
• Gun registration would be incomplete: The Supreme Court has ruled that people who are prohibited by law from possessing firearms cannot be required to register firearms, because doing so would violate their 5th Amendment right against self-incrimination.3
• Gun registration would not be worth the effort: The Centers for Disease Control and Prevention reviewed studies of gun registration and gun owner licensing, and found them insufficient for determining the restrictions’ effectiveness.
Ban on Assault Weapons/Ammunition Cap
An assault weapons ban is a law that prohibits the civilian possession, manufacture, or transfer of assault weapons.
• In 1994, Congress passed the Public Safety and Recreational Firearms Use Protection Act, which included an assault weapons ban.
• This act expired in 2004, and no other federal ban has taken its place.
• There is no universally accepted, technical definition of assault weapons. The 1994 Assault Weapons Ban and the ban proposed by Senator Diane Fienstein in 2019 both emphasize that assault weapons are semi-automatic, capable of accepting detachable magazines, and can include certain rifles, shotguns, and pistols.
• Although there is no federal assault weapon ban, a few states such as California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York, District of Columbia, and Washington have passed their own assault weapon bans.
• An ammunition cap is a law that prohibits the civilian possession, manufacture, or transfer of large capacity magazines.
• A large capacity magazine is an ammunition feeding device that is capable of holding, or could be easily modified to hold, more than ten rounds of ammunition.
• In addition to its assault weapon ban, the 1994 Public Safety and Recreational Firearms Use Protection Act included an ammunition cap.
• In the time since the act expired in 2004, no new ammunition cap has passed through Congress.
Allows family members or law enforcement to request that a judge temporarily prohibit a particular person from owning, purchasing, possessing, or receiving a firearm.
• In 1994, Congress passed the Public Safety and Recreational Firearms Use Protection Act, which included an assault weapons ban.
• Red flag laws exist in 17 states and the District of Columbia but do not exist at the federal level.
• Family members are defined as those related to the subject of the request by blood, marriage, or adoption, but can also include domestic partners, legal guardians, cohabitors, dating partners, and others depending on the particular law.
• The written form produced by the judge authorizing the prohibition is known as an Extreme Risk Protection Order (ERPO).
• In order to successfully petition for an ERPO, the petitioner must prove to the judge that the person poses a significant danger of causing personal injury to themself or others as a result of owning, purchasing, possessing, or receiving a firearm.
• The judge’s determination is usually based on the standard of preponderance, which means that if the judge finds it to be more likely than not that the person poses such a danger, an ERPO will be issued.
• Warning signs considered by the judge may include behaviors such as self-harm, acts and threats of violence, violent mental health issues, or substance abuse.
• In the event that a person is believed to pose significant danger to themselves in the extremely near future, some laws allow an ERPO to be issued under the less rigorous evidence standard of reasonable cause, which requires sufficient facts to exist that a reasonably intelligent person would find that the person posed a significant danger.
• These expedited ERPOs are often known as ex parte ERPOs.
• Although all ERPOs are temporary, they can be renewed.
Mass shooters and school shooters often display warning signs
• The United States Secret Service and the United States Department of Education studied targeted school violence incidents and found behavioral warning signs that caused others to be concerned in 93 percent of cases. rems.ed.gov/docs/DOE_BystanderStudy.pdf • They also found that in 81 percent of incidents, other people, most often the shooter’s peers, had some type of knowledge about the shooter’s plans. rems.ed.gov/docs/DOE_BystanderStudy.pdf • The mass shooter in the February 2018 Parkland, FL tragedy displayed threatening behavior. His mother had contacted law enforcement on multiple occasions regarding his behavior, and he was known to possess firearms. fdle.state.fl.us/MSDHS/CommissionReport.pdf • In Maryland, a 2018 Extreme Risk law has been invoked in at least four cases involving “significant threats” against schools, according to the leaders of the Maryland Sheriffs’ Association. baltimoresun.com/politics/bs-md-red-flag-update-20190115-story.html
These laws still protect due process.
• Those who request an ERPO must present evidence to a judge that demonstrates a person poses a significant danger of injuring themselves or others with a firearm.
• The person in question has the opportunity to respond to any evidence presented, and many of these laws include penalties for presenting false evidence.
• The final ERPO, generally lasting up to one year, can be issued only following a hearing of which the person is given notice and during which they have an opportunity to be heard and respond to evidence.
• Many of these laws also include strong provisions that deter people from misusing the ERPO process.
Protection of Lawful Commerce in Arms Act (PLCAA) - legal immunity for gun manufacturers
The Protection of Lawful Commerce in Arms Act (PLCAA) was enacted in 2005 to protect manufacturers, distributors, dealers, or importers of firearms or ammunition from being held liable for crimes committed with their products.
• It passed through the Senate 65/31 with 49 Republican cosponsors and 12 Democratic cosponsors. It passed through the House 283/144.
• The PLCAA does not protect the parties from being held liable for damages resulting from actions they are directly responsible for such as defective products, breach of contract, and criminal misconduct.
• As a result of the PLCAA, a qualified civil liability action may not be brought against these parties in any state or federal court.
• The PLCAA also dismissed all civil liability actions that were pending on the date it was enacted.
• A qualified civil liability action is defined in the PLCAA as an action or proceeding brought against one of the specified parties for damages or other relief, resulting from the criminal or unlawful misuse of a qualified product by a third party.
• In addition to the legal immunity it gave, the PLCAA also mandated child safety locks on handguns, provided immunity from civil liability to lawful handgun owners who use secure gun storage or safety devices for damages resulting from unauthorized use, and restricted the manufacture of armor-piercing ammunition.
The Act’s exceptions are sufficient to still hold companies accountable
• The PLCAA includes six exceptions.
1 • a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party
2 • an action brought against a seller for negligent entrustment or negligence per se
- `negligent entrustment' means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others
3 • an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought
4 • an action for breach of contract or warranty in connection with the purchase of the product
5 • an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner
6 • an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code.
Lawsuits against gun companies failed even before the PLCAA
The PLCAA was passed with broad bipartisan support
• The PLCAA passed through the Senate 65-31, with 14 Democratic senators voting for it. It passed through the House 283-144, with 59 Democratic representatives voting for it. govtrack.us/congress/bills/109/s397
Such lawsuits are not fair to the gun industry, politically motivated, and costly
Accountability used to be effective in increasing safety
• In 2000, Smith & Wesson agreed to adopt additional safety practices, such as selling safety devices with each handgun; establishing a code of conduct for authorized dealers and distributors; and including a hidden set of serial numbers on the inside of all new guns in order to make it more difficult for criminals to scratch off these identifying markings. The company did this as part of a settlement agreement that ended several lawsuits. americanprogress.org/issues/guns-crime/reports/2016/01/15/128949/immunizing-the-gun-industry-the-harmful-effect-of-the-protection-of-lawful-commerce-in-arms-act/ • In 2002, John Allen Muhammad and Lee Boyd Malvo went on a nine-month crime spree that left 17 people dead and seven injured, including 10 individuals killed in what is now infamously known as the Beltway sniper shootings. After federal agents traced the guns used in the attacks back to Bull’s Eye Shooter Supply, they discovered that the retailer failed to keep required records of the gun sales and had lost more than 238 guns over the previous three years—guns that were supposed to be in their inventory. Victims’ families sued the snipers, Bull’s Eye, as well as the gun manufacturer, Bushmaster, arguing that the store was responsible for the shootings because of its negligent sales practices and that Bushmaster was responsible because it continued to supply firearms to the store despite the store’s known negligence. In 2004, both the dealer and manufacturer were held liable in a $2.5 million settlement. In addition to monetary damages paid by both parties, Bushmaster agreed to change its distribution practices. americanprogress.org/issues/guns-crime/reports/2016/01/15/128949/immunizing-the-gun-industry-the-harmful-effect-of-the-protection-of-lawful-commerce-in-arms-act/
It’s not like suing car companies for drunk driving accidents