Regulation of firearms in this country is one of the most complicated and divisive political issues we face. Most non-gun owners, and many who do own guns, do not really understand the way our systems of state and federal background checks work. Unless one understands the current patchwork of rules and regulations, they will have difficulty fairly judging the value of proposed changes to these laws.
With this three-part series, I intend to explain how the current system of background checks works in Maine and to explain what effects proposed new rules would have. Here, in Part 1, I’ll describe in detail how one goes about legally buying a gun in Maine. In Part 2, I’ll discuss the effects and constitutionality of President Obama’s proposed new background checks rule. In Part 3, I’ll discuss the background checks referendum that Maine voters will have the opportunity to vote on this November.
The most important thing to understand is that many, many legal gun purchases take place every day in the U.S. without a background check being required or performed. Only purchases made from federally-licensed firearms dealers require a background check. And not all gun dealers are required to hold such a license.
Let’s start with the former: Any brick-and-mortar gun store, from national chains like WalMart and Cabela’s, to your local town pawnshop, is required by federal law to possess a Federal Firearms License (FFL). An FFL-holder must keep records of all their sales and must conduct a background check with the FBI before every firearm sale. An FFL also provides the dealer with certain privileges, like the ability to ship guns across state or international lines and to purchase guns wholesale from manufacturers. Congress and President Clinton created this background checks system with the so-called Brady Bill of 1993.
How background checks work
The background check itself works like this: the gun seller collects information about the buyer (name, address, date of birth, etc.) and submits it electronically or by phone to the FBI, which searches hundreds of different federal, state, and local criminal and mental health databases to see if the buyer is eligible to purchase a firearm. The Brady Bill prohibits a federally licensed gun dealer from transferring a firearm to anyone who meets any of the following criteria: is a fugitive from the law; is in the country illegally or temporarily; has denounced their US citizenship; has been convicted of or under indictment for a felony or violent misdemeanor, harassing, stalking, domestic abuse, or failure to pay child support; has been dishonorably discharged from the military; or has been adjudicated mentally incompetent or involuntarily committed to a psychiatric facility. If any of these searches come back positive, the seller must deny the sale or risk criminal prosecution and loss of their FFL.
Most of these searches take from a few minutes to an hour; the buyer just waits at the store for the search to be completed. I’ve purchased five firearms in my life and had the sale approved within thirty minutes each time, though I’m lucky to have an uncommon name, which expedites the process.
The background check can result in one of three outcomes: approval and the sale goes forward, denial and the sale is canceled, or a hold is put on the sale. A hold occurs when the FBI cannot immediate determine whether the buyer is eligible to purchase a firearm. This often happens when people have more common names and someone with that same name has committed one of the above offenses. The buyer’s application is then sent to an investigatory team to do further research. This hold lasts for up to three business days. If after three days, the FBI cannot determine conclusively that the buyer is ineligible, the sale goes forward. The burden is on law enforcement to prove ineligibility. This is how Dylann Roof, the killer of nine African-American churchgoers in Charleston, South Carolina, legally purchased the Glock semiautomatic pistol that he used in the shooting, despite having a criminal history that made him ineligible to buy a gun.
According to the FBI, in 2014, the most recent year for which data are available, 9% of FFL sales were delayed and 1.1% of checked sales were denied. Of the 7.9% of background checks that are delayed but eventually approved, I could not find data on how many were affirmatively approved and for how many, like Roof’s, the three-day limit expired.
Private sales
There is another whole category of legal gun sales in America: so-called “private sales.” It is perfectly legal for individuals to sell guns to each other, and when Congress created the background checks system it declined to regulate these sales. The thinking was, if I want to sell my buddy my old deer rifle for $50, why should I have to be federally licensed as a gun dealer to do so? This makes some sense to me. Unfortunately, unscrupulous professional gun dealers have taken advantage of this exception.
If they don’t have a brick-and-mortar store, and they haven’t legally incorporated as a business, it can be very hard for law enforcement to identify if someone is actually engaged in the business of selling guns. How does the FBI know if an individual selling guns is an avid collector selling some of their stock or if they do this for a living? Professional gun dealers can easily claim to not be “engaged in the business of selling guns,” as the law defines it, and thereby skirt the cost of acquiring an FFL and conducing background checks.
The traditional place for gun dealers to conduct “private sales” is at gun shows, hence the nickname “the gun show loophole.” Gun shows are a very common, very popular way to purchase any kind of firearm you want without being subjected to a background check. The annual Augusta Gun Show, for example, regularly draws hundreds or thousands of participants over the course of a weekend.
Increasingly, gun dealers are using the Internet for “private sales.” Gunbroker.com, a popular gun sales website, currently offers over 170,000 pistols, shotguns, hunting rifles, and assault rifles for sale. As long as the gun is not being shipped through the mail, no background check is required for these sales.
Because “private” sales are – by definition – not tracked by the government, it’s impossible to know what percentage of gun transactions in this country are done without a background check being performed. A Harvard research team estimates it as high as 40% of all gun sales are private.
The point is that currently anyone in America, even criminals on the lamb, convicted serial rapists, and patients suffering from untreated paranoid schizophrenia, can quickly, easily, and legally buy just about any gun they want.
A problem for law enforcement
These private sales have an especially pernicious way of hindering law enforcement’s ability to investigate crimes. Despite what some may claim, there is no national database of guns or gun owners. Each firearm has a unique serial number, which is imprinted on the metal of the gun. If a police officer discovers a firearm at a crime scene, they can run a search on the gun’s serial number, which will tell them to whom the gun manufacturer originally sold the gun (usually a wholesaler or distributor). Then the officer must contact that wholesaler and ask to which retailer they sold it. Then they must contact the retailer to find out to whom they sold it. And on and on. FFL-holders must maintain records of every sale they make, but they need not submit those records to the government unless asked about a specific firearm. A fifty-year old revolver, just as lethal as the day it was made, could have been legally transferred thirty or more times in its life. And the officer will have to contact each dealer to get the next step in the chain of transfers.
And here’s the scary part about private sales: “private” sellers don’t have to keep records. If there’s a single private sale in the entire chain of transfers from manufacture to crime, the officer can no longer trace the gun. If the private sale is me selling my rifle to my buddy, the officer can get my name from the store I bought it at and ask me. I’ll probably remember what I did with the gun. But a professional dealer who makes hundreds or thousands of “private” sales to strangers every year likely won’t.
In the next two posts in this series, we’ll discuss what state and federal leaders are doing to make sure more gun sales are subject to background checks.
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