PF Nov 2017 - Universal Background Checks - Con Position

Resolved: The United States should require universal background checks for all gun sales and transfer of ownership.

Con Position

One major problem for this resolution is buried in the implementation details. Universal background checks (UBCs) already exist and are required for all ownership transfers carried out by Federal Firearms License (FFL) holders. Virtually all retail and wholesale arms dealers (including establishments like most brick and mortar sporting goods shops and retail department stores that offer guns for sale). Currently, 78% of weapons sales pass through a background check. The remaining 22% are sold legally by non-licensed, private sellers. This "gap" is an acknowledged loophole which allows private citizens to sell or give guns to others or in-family transfers, for example, a parent who hands down a gun to a child or another relative. Closing this loophole requires a significant government intrusion into the lives of private citizens. This is particularly repugnant to guns rights advocates who believe that one of the main functions of the second amendment is to be a check against too much government power. Additionally, a large percentage of guns used in crimes, are acquired illegally and this is a major argument for gun-rights proponents. Criminals do not let laws stop them from perpetrating their harms on society. Many guns used in crimes are stolen from legal gun owners who passed a UBC not to mention there is a thriving "black market" where guns of every type are available for the right price. Indeed, the U.S. is the source of a huge number of weapons sold on the Dark-web to unknown purchasers in the U.S. and around the world. We have already been told in these early days after the Las Vegas mass shooting on Oct. 1, 2017 the accused murderer, Stephen Paddock,  would have passed a UBC before using his legally acquired weapons to kill or wound well over 500 innocent people. This single act is a powerful, argument for the Con in this debate, that UBCs do not prevent crimes. Indeed, many experts recognize the difficulty in implementing an effective UBC law, that would likely require other provisions such as registration and personal licensing requirements. 

Webster & Vernick 2013:

There has been considerable interest in closing the private-sales loophole by simply requiring that all gun sales, whether in the primary or secondary market, be subject to background checks. California has instituted such a system for firearms transactions, which must go through an FFL who then charges a fee for conducting the background check. Such a system, were it to be enforceable, would make it more difficult for disqualified people to obtain a gun. The fundamental question is how to enforce such a system. California requires that handguns be registered to their owner, which is useful in holding owners accountable for the disposition of their handguns. Even without a registration requirement, a universal background check system could be enforced in a variety of ways, including law-enforcement oversight of gun shows and undercover “buy and bust” operations by the police. Whether the California system is successful in reducing gun violence has not been established (but see Webster, Vernick, and Bulzacchelli 2009).[29]

Moreover, there is a great deal of concern over the fact that UBCs are not good predictors of who would be likely to commit crimes with guns and thus deny second amendment rights to individuals who are potentially harmless to society. Finally, modern technology which for all of its promise for a future of convenience, efficiency and openness may ultimately end up circumventing all of our efforts to regulate gun ownership.

UBCs and Crime Reduction

The legal basis of the National Instant Criminal Background Check System (NICS) was the passage of the Brady Handgun Violence Prevention Act which went into effect in 1994. In the decades following the enforcement of the bill, a number of research studies were carried out to measure its effectiveness as a crime reduction method. Researchers reported a minimal impact. In other words, the law requiring UBCs was much less effective than anticipated and so researchers sought explanations for why that was so.

Webster & Vernick 2013:

The most prominent of the likely explanations is simply that by limiting the background-check requirement to sales by FFLs, the Brady Act’s background-check requirement had no direct effect on the vast majority of transactions that provide criminals with guns. Surveys of prisoners in the 1980s show that only one-fifth obtained their guns directly from a licensed gun dealer (Wright & Rossi, 1994), even though at that time dealers in most states were not required to conduct background checks to verify the buyer’s eligibility. Most crime guns are obtained from people who are not licensed FFLs through private transactions that are largely unregulated under existing federal law—that is, these crime guns are obtained in the off-the-books secondary gun market.[28]

And so we are immediately smacked in the face with one of the leading arguments against additional regulations for gun control: criminals do not obey gun-control laws. Immediately, we can question the logic for expanding existing laws which are only enforceable against law-abiding citizens who are unlikely to break the law anyway, neither when purchasing or when using a gun. Clearly, expanding the law to cover all private transactions will require significant oversight to enforce.

Jacobs & Fuhr 2017.2:

Enforcing a UBC regime against private sellers is much more difficult. A private seller, especially one who has bought and sold guns on the black market for many years prior to passage of an UBC regime, will likely continue selling guns in the same way. In transacting a gun sale with a stranger, a private seller might not give his real name and, certainly will not provide a receipt. If he is ever questioned, he can deny that the sale ever happened. A successful prosecution will usually require an informant or undercover agent. Because of limited time, money and personnel, such operations will be directed at suspected high volume black market sellers, not occasional sellers.[137]

The Restricted Classes

Ex-criminals

The key premise of UBCs is to identify certain individuals who may may be inclined to use a gun illegally and thus prevent that person from being able to legally own a gun. The current system categorizes those who's names appear in the database as ineligible due to past activities of public record or other conditions which place them in a category of being potentially high-risk of harming themselves or others should they be allowed to own or possess a gun. However, this categorization of individual is subject to diverse interpretation. 

Jacobs & Fuhr 2017.2:

In any event, it is not realistic to consider all persons ever convicted of a felony or a domestic violence misdemeanor at any point in their life as forever posing a significant risk of misusing a firearm. Indeed, the view that “once a criminal, always a criminal” is contested by the “Ban the Box” movement and other groups and coalitions seeking to abolish, or at least reduce, the vast range of collateral consequences that make it difficult for “ex-offenders” to reintegrate into society. The large majority of people with a prior felony conviction were not convicted of a gun crime. This is not to say that preventing all persons ever convicted of any felony offense from ever acquiring a gun would not reduce the number of gun crimes. Undoubtedly, it would—but so would disqualifying from firearms possession all males age twenty-one to twenty-five. Indeed, preventing any segment of the population from possessing guns would diminish total gun crime and gun suicide. [129-130]

While simply banning guns from any large segment of the population would no doubt be effective, I don't need to tell you it would be in direct violation of the second amendment and the its interpretation by the U.S. Supreme Court in the Washington D.C. v. Heller case which permits possession of guns for self-defense.

The Mentally Ill

It is desirable to keep guns out of the hands of the potentially violent, mentally ill and so the NICS flags individuals who may be classified as sufficiently mentally abnormal to warrant disqualification. However, the literature confirms the reality of UBCs as a crime control mechanism. The system first assumes that people who may be so classified have already sought treatment.

Webster & Vernick 2013:

Subsequent epidemiological research showed that mental illness contributes little to population violence over all (Fazel and Grann 2006; Swanson 1994; Van Dorn, Volavka, and Johnson 2012). The very small proportion of people with mental illnesses who are inclined to be dangerous often do not seek treatment before they do something harmful; they therefore do not acquire a gun-disqualifying record of mental health adjudication (or a criminal record, either) that would show up in a background check. Psychiatrists, using clinical judgment, cannot accurately foresee which patients will be violent (Lidz, Mulvey, and Gardner 1993) and commit many patients for reasons unrelated to violence risk.[36]

Even when a dangerous person is under treatment, the system can fail. For example, James Holmes was being treated for several psychological disorders and had expressed a desire to kill others prior to murdering 24 people at the Aurora Theater in 2012. However, the assault rifle and gas canisters he used in the attack were obtained legally from an FFL dealer. So how is it possible, that Holmes, who expressed a desire to kill as many as possible, passed a UBC in Colorado? There is a wide variation state-by-state in reporting requirements and even if the next potential "James Holmes" is detected and classified as "mentally defective" it is unlikely anyone will be knocking on his door, demanding he turn in any guns he may have possessed prior to being disqualified.

Webster & Vernick 2013:

Achieving comprehensive state reporting of mental health records to NICS may thus help reduce violent crime that is facilitated by guns and, thus, improve public safety. However, this measured step will not prevent gun violence by dangerous individuals who today can easily skirt the background check system to obtain a firearm. It does nothing to prevent disqualified persons from using the guns they may already have.[45]

The issues surrounding reporting are complex. While it is not always univerally recognized who may be considered a danger to society, reporting is also affected by things like federal privacy laws which limit how medical practitioners report information. Moreover, insurance requirements and state health care funding are further impediments to detection and treatment of the mentally ill. These are just some of the factors which point to the impractability of UBCs to limit gun ownership.

Jacobs & Fuhr 2017.2:

NICS background checking is not effective in identifying persons too dangerous to possess a firearm due to mental illness. The Brady Law prohibits purchase of firearms by a person who has ever been civilly committed to a mental hospital or been adjudicated as mentally defective. As indicators of dangerousness due to mental illness, these categories are both over and under-inclusive. Involuntary mental hospital commitments have decreased precipitously over the past several decades. The inpatient population decreased from 550,000 in the mid 1950s to 30,000 in 1990. Adjudications of persons as mentally defective are rare, mostly triggered by a family’s desire to establish a guardianship over a  usually elderly) person who might otherwise dissipate his or her resources. Moreover, states have been very reluctant to submit even these names to NICS, citing state privacy laws. Despite the George W. Bush Administration’s attempt to encourage states to submit to NICS the names of persons who have been civilly committed or adjudicated mentally defective,161 in 2011 twenty-three states and the District of Columbia submitted fewer than one hundred names to NICS. Seventeen states submitted fewer than ten names; four states submitted none.[131-132]

The Cost Factor

Government regulations cost money and the requirements for UBCs would be a government regulation. Implementation and enforcement of the UBCs will increase costs not only for the consumer but for the government requiring increases in administration and litigation costs.

Webster & Vernick 2013:

Background checks are useful only to the extent that the databases on which they are performed are accurate and complete. There will be costs, which may be substantial, to compile the data for background checks that include these offenses. There will also be costs associated with the increasing number of denials and, presumably, appeals of those denials. Personnel, facility, and other resource requirements will all increase. No estimates of cost, or of offsetting financial benefit in crimes and injuries prevented, have been developed.[90]

These costs will naturally impact the cost of acquiring the weapons and could potentially deny some their right to bear arms due to the additional costs. Moreover, this increase in cost potentially links to U.S. budget concerns, national debt issues, and taxation impacts. Though I will not develop this idea much further at this time, I urge the more ambitious debaters to explore the cost issue as another means to oppose the resolution.

The Real Source of Guns

The most common way for criminals to get their hands on guns in not from the licensed dealers or private gun show purveyor but from the very people, the guns laws are created to protect: the private citizen gun owner.

Webster & Vernick 2013:

Data on guns recovered by police and traced by the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF) have indicated that about 85% of criminal possessors were not the retail purchaser (Bureau of Alcohol, Tobacco and Firearms 2002). This is consistent with our analysis of data from the most recent (2004) Survey of Inmates in State Correctional Facilities (SISCF) to determine the source for the handguns acquired by the 1,402 inmates incarcerated for an offense committed with a handgun. The largest proportions of offenders got their handguns from friends or family members (39.5%) or from street or black market suppliers (37.5%), sales for which there are no federal background check requirements. Licensed gun dealers were the direct source for 11.4% of the gun offenders. One in 10 offenders in our sample reported that they had stolen the handgun that they used in their most recent crime. Handgun acquisitions by offenders at gun shows and flea markets were rare (1.7 %).[110]

Additionally, guns are acquired illegally from street sources, other criminals or individuals who sell weapons simply for the money; no questions asked.

Kopel 2016:

Surveys of prisoners have long indicated that firearms retailers are a minor source of criminals’ guns. A larger source of guns is personal theft by criminals themselves. But by far the largest source of criminal guns is purchases from the criminal’s acquaintances. As the black market has long supplied criminals with cocaine, heroin, methamphetamine, and other illegal drugs, it also supplies them with firearms. It is likely that a significant number of those firearms have previously been stolen by someone else; many other firearms might have been legally acquired at some point, but their sellers did not care that they were selling to criminals.[312]

Don't lose sight of this debate. The Pro is advocating universal background checks for ALL transfers of ownership. We can save the debate about ridding our homes and streets of guns for another time and place. We are here to debate background checks and in the U.S. under current law, requiring UBCs will still leave significant gaps in keeping guns out of the hands of those who would do us harm.

Unintended Consequences

In 2013, the state of New York, passed the Secure Ammunition & Firearms Enforcement Act (SAFE Act) which included a number of broad gun control measures. The SAFE Act was also known as the Bloomberg laws since they were heavily influenced and shaped by New York Mayor Michael Bloomberg. A key part of the law was a requirement for background checks for all transfers of ownership with the exception of immediate family members unless that family member is known to be disqualified from possessing a firearm under U.S. law. The SAFE act serves as a model for examining the effects of such a law if implemented nationally as the Pro urges.

Jacobs and Fuhr 2017.1:

If background checking is an important strategy for keeping firearms out the hands of dangerous and unreliable people, it should apply to all purchasers, indeed to all transferees, regardless of who sells or otherwise transfers the firearm. However, extending background checking to all firearm transfers faces significant implementation and enforcement obstacles. Just as the Brady Law is easily circumvented by firearms-prohibited individuals obtaining a gun by means of a straw purchaser or directly in the secondary market or black market, firearms-prohibited individuals can easily avoid the SAFE Act’s universal background checking requirements by obtaining a gun from a family member, straw purchaser, black market dealer or private gun seller willing (perhaps for a premium) to ignore the background checking law. It is hard to believe that a firearms disqualified person who wants to acquire a firearm will have difficulty obtaining one. New York statistics on firearm crimes and suicides before and after passage of the SAFE Act support this conclusion [1353]

Thus we see the SAFE Act did little to impact the illegal transfer of firearms in New York. However, it did produce unintended consequences related primarily to the interpretation of the word "transfer". In New York, lending a weapon to another (even another family member) for the purpose of self-defense is forbidden without a UBC except in cases of imminent bodily-harm (Kopel 2016:316). This interpretation has been criticized for being unconstitutional with respect to the SCOTUS' Heller decision upholding the second amendment for self-defense. In addition, the law had unintended consequences for a museum which was forced to close one its exhibits of historic weapons, since the weapons were on loan from donors and thus the museum had not acquired the weapons legally under the provisions of the SAFE Act (Kopel 2016:318). The source also explains how gun-safety instructors, families and minors were negatively impacted by the law and its narrow interpretations (Kopel 2016:318-322).

Unintended consequences of UBCs can potentially strike from the past, impacting some who in a single act of youthful foolishness, destroyed their ability to defend their homes if they so choose while the bad-guys will continue to get the weapons they desire.

Kopel 2016:

The persons who will submit to a NICS check are those who think that they will pass the check; they believe that they are lawful gun buyers. NICS will prevent a purchase by someone who did not realize that her thirty-year-old felony conviction for marijuana possession prohibits her from owning a gun for the rest of her life. Although NICS may deter a person who was recently released from prison for armed robbery from attempting a retail purchase, retailers have never been a major source of firearms for such people. [311]

All Your Base

I will conclude this analysis with one final piece of evidence that could render a vast majority of our gun control efforts obsolete; rendered impotent by ever-emerging technology.

McCutcheon 2014:

Currently, the ability to print an entirely plastic and fully functional firearm that truly rivals a traditionally manufactured gun has not been perfected. But, it seems that the appeal of 3-D printed guns, which are expected to be inexpensive, easy to make, unidentifiable, and practically disposable, means that the creation of such has become a question of “when” and not “if.” Many gun enthusiasts and organizations are passionate about making a reliable 3-D printed gun a reality and have successfully pushed the concept from impossible to plausible. A nonprofit digital publisher, known as Defense Distributed, leads the 3-D printed firearm movement. The group’s mission was to create “a fully-printable gun comprised of near 100% printable parts” and make the blueprints freely available to the public, effectively circumventing U.S. gun control laws.[226]

The implications of emerging tech renders our UBCs laws obsolete. For all these reasons an more, we urge a Con ballot.

As for the 'All your Base" tag, it is taken from the opening of an old side-scrolled video game, Zero Wing published in 1998 and resulted from the poor translation of an intro originally appearing in Japanese.

Operator: Main screen turn on. 

Captain: It’s you !! 

CATS: How are you gentlemen !!

CATS: All your base are belong to us. 

CATS: You are on the way to destruction. 

Captain: What you say !!

CATS: You have no chance to survive make your time.

CATS: Ha ha ha ha … 

An example of early tech that was one more step toward a future we are living in today.

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Sources:


Jacobs, JB. and Fuhr, ZA (2017.1), Universal Background Checking - New York's Safe Act, 79 Albany Law Review 1327 (2017), accessed 10/6/2017 at: http://www.albanylawreview.org/Articles/vol79_4/1327%20Jacobs%20PRODUCTION.pdf

Jacobs, JB. and Fuhr, Z (2017.2), "The Potential and Limitations of Universal Background Checking for Gun Purchasers" (2017). New York University Public Law and Legal Theory Working Papers. 581, accessed 10/6/2017 at: http://lsr.nellco.org/nyu_plltwp/581

Kopel, DB (2016), Background Checks for Firearms Sales and Loans: Law, History, and Policy, 53 Harvard Journal on Legislation 303 (2016). accessed 10/6/2016 at: http://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1041&context=law_facpub

McCutcheon, CR (2014), DEEPER THAN A PAPER CUT: IS IT POSSIBLE TO REGULATE THREE-DIMENSIONALLY PRINTED WEAPONS OR WILL FEDERAL GUN LAWS BE OBSOLETE BEFORE THE INK HAS DRIED?, JOURNAL OF LAW, TECHNOLOGY & POLICY, Vo. 2014, accessed 10/8/2017 http://illinoisjltp.com/journal/wp-content/uploads/2014/05/McCutcheon.pdf

Webster, DW, Vernick JS, (2013), Gun Violence in America, Informing Policy with Evidence and Analysis, center for Gun Policy and Research, Johns Hopkins Bloomberg School of Public Health
, 2013. Accessed 10/6/2017 at: https://jhupress.files.wordpress.com/2013/01/1421411113_updf.pdf