Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
At the 2016 Democrat convention, when Hillary Clinton was coronated as the next president because only Deplorables would vote for Donald Trump, she declared: “I’m not here to repeal the Second Amendment. I’m not here to take away your guns.”
“When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised … to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually.” —George Mason (1788)
That was a brazen lie, of course — and it didn’t fool anyone on Election Day.
Fast-forward to last month’s back-to-back mass murders in Texas and Ohio by assailants using firearms.
Predictably, Democrats are using those rare but high-profile attacks as a pretext for new gun-control laws. In response, Trump declared he would work with Democrats to see if there was common ground on Demo legislation for background checks, which might have an incremental impact on accessibility to firearms by those who will either harm themselves or others. However, upon studying the Demos’ other more symbolic and sinister proposals — “red flag” laws and “assault weapon” bans — the administration declared them DOA.
The administration’s apparent willingness to consider more stringent background-check legislation resulted in immediate pushback from Liberty and Second Amendment advocates. While most Americans believe all firearm purchasers should be qualified, there’s a very legitimate concern that implementing “enhanced” background checks for any firearm transfer under any circumstance will lead to a national firearm registry — which will ultimately lead to confiscation.
Trump could have taken an easy pass on this debate after Beto O'Rourke used the Demo debate stage to expose the Left’s long-term gun-confiscation objective. When asked, “Are you proposing taking away their guns and how would this work?” O'Rourke responded, “Hell yes, we’re going to take your AR-15, your AK-47!” From there, it’s not much of a leap for statists to begin the incremental ban on most firearms.
Trump called out O'Rourke, declaring, “Dummy Beto made it much harder to make a deal. Convinced many that Dems just want to take your guns away.” But then added, “Will continue forward!”
Why would he continue forward? Even congressional Democrats are furious at O'Rourke for letting the mask slip and exposing their confiscation goals. Senate Minority Leader Chuck Schumer went into full damage-control mode, deceptively declaring, “I don’t know of any other Democrat who agrees with Beto O'Rourke.”
While Chuck might not, I know plenty of them.
Trump could still use O'Rourke’s declaration as an easy out, claiming he has poisoned the debate, but regardless, Democrat insistence on “universal background checks” isn’t going away. They know it has popular support across party lines. That support isn’t likely to be reflected in ballot measures because media polling doesn’t reflect full consideration of the implications. Other reputable polls indicate that support for gun-control measures in general is trending downward.
For that reason, it’s important to better understand concerns about, and objections to, broader FBI background checks and firearms transfers, and the very real risk that data from such checks could be used to create a national gun registry — if such an “off the books” registry isn’t already being maintained.
But before tackling that serious concern, here are two observations.
First, this is my personal position on buying and selling a firearm: Every firearm I’ve acquired has been through a dealer, which is to say those purchases have been subject to background checks. I have never sold or transferred a firearm to anyone other than a dealer, a law-enforcement officer, or someone known to me who has an active firearm carry permit or is active-duty military. In other words, every firearm I’ve owned has been vetted, and every firearm I’ve sold or given away has been to a qualified recipient. Having been a uniformed patrolman at the start of my career, these are my personal standards for firearm transactions. (If Beto has access to some rogue registry and wants to come confiscate my firearms, I look forward to meeting him.)
Second, about the so-called “gun-show loophole”: As 2A advocates often explain, there is no legal loophole regarding sales by licensed dealers at such events. Those sales are subject to the same background checks as any other retail sale by a dealer holding a federal firearms license (FFL). But an estimated 15-20% of firearm transactions at these venues are between individuals and are thus not currently subject to any federal background checks — unless those take place in one of the 21 states that have regulations regarding handgun purchases at gun shows.
For example, I recently became aware that two 16-year-olds and an 18-year-old purchased three AR-15 pistols from a table vendor at a gun show. Most vendors are FFL dealers, but transactions by vendors who aren’t dealers, and other sellers connecting with buyers at those venues, bypass background checks.
Would broader federal regulations regarding background checks on individual sales stop such transactions? At best, these might create an obstacle that will simply send some of these transactions underground. Again, only law-abiding citizens obey the law.
Now, regarding concern that implementing enhanced background checks for any firearm transfer under any circumstance will lead to a national firearm registry: That concern is completely justified.
If you haven’t purchased a firearm from an FFL dealer, here is the process:
Before a firearm can be transferred to the buyer, that buyer must complete ATF Form 4473.
That Form 4473 is then uploaded through the National Instant Criminal Background Check System (NICS), which was established by Congress under P.L. 110–180. In what is now an instant check in most cases, Form 4473 information is compared to an FBI database to determine if the buyer is eligible to make that purchase. A dealer can also query the NICS system to determine if a firearm has been stolen.
(For the record, in 2017, the NICS background check denied transfer to 112,000 individuals, most of whom submitted false information, though fewer than 50 of those individuals have been prosecuted.)
So, the question that should be of concern to all firearm purchasers is: What happens to the Form 4473 information once the purchase has been cleared?
There are a number of federal laws that make a permanent federal registry of Form 4473 data unlawful, mandating that the federal agency destroy the Form 4473 information once the background check is complete.
I’ll include these provisions in detail below because they’re difficult to find, and because many consumers and even dealers aren’t aware of these specific legal prohibitions. Yet even though such a registry would violate the law, given the abject disregard for Rule of Law demonstrated by FBI leadership under former Director James Comey and under former President Barack Obama, concerns about such lawlessness are completely legitimate. And they’re yet another reason that President Trump could cite as justification for exiting the gun-registration debate.
It relates specifically to NICS, Section 511 of the Consolidated and Further Continuing Appropriations Act, 2012, 18 U.S.C. 922 note and Public Law 112–55; 125 Stat. 632.
The following provision prohibits the use of NICS to compile a registry of people who acquired firearms by requiring the system to destroy records on approved transfers within 24 hours:
SEC. 511. Hereafter, none of the funds appropriated pursuant to this Act or any other provision of law may be used for … any system to implement subsection 922(t) of Title 18, United States Code, that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from possessing or receiving a firearm no more than 24 hours after the system advises a Federal firearms licensee that possession or receipt of a firearm by the prospective transferee would not violate subsection (g) or (n) of section 922 of title 18, United States Code, or State law.
However, FFL dealers are required to maintain Form 4473s in their records as part of their licensing requirement, in order to track firearms used in the commission of crimes. The process of tracking such weapons is that the serial number is provided to the manufacturer, which then can advise what FFL dealer purchased that firearm for resale. The FFL dealer is then required to reveal to whom the firearm was sold.
A different provision of the same act (P.L. 112-55) also prohibits the use of FFL records (including A&D books and the Form 4473 records FFLs are required to send to the ATF when they discontinue doing business) for compilation of a firearm registry:
No funds appropriated herein or hereafter shall be available for salaries or administrative expenses in connection with consolidating or centralizing, within the Department of Justice, the records, or any portion thereof, of acquisition and disposition of firearms maintained by Federal firearms licensees…
Hereafter, no funds made available by this or any other Act may be used to electronically retrieve information gathered pursuant to 18 U.S.C. 923(g)(4) by name or any personal identification code…
This provision of the Gun Control Act (18 U.S.C. § 926) prohibits regulations from being written that would require the compilation of a firearms registry from records that FFLs are required to keep:
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary’s authority to inquire into the disposition of any firearm in the course of a criminal investigation.
Also of interest, there are even restrictions under (P.L. 111-148) pertaining to Barack Obama’s so-called “Affordable Care Act” that are designed to prevent the compilation of firearm registries from information collected by insurance companies and healthcare providers. The relevant section is “Protection of Second Amendment Rights.”
Congress would have to enact laws to substantively change any of these restrictions. That they can do, though such changes would then be challenged all the way to the Supreme Court as a violation of the Second Amendment. The Court, for the moment, is marginally in the hands of jurists who abide by their oaths “to support and defend” our Constitution. Notably, according to Second Amendment scholar Dave Hardy, “There is no [current] SCOTUS ruling that would apply.”
So where does the background-check debate stand?
The Trump administration’s outline for enhanced background checks notes, “Consistent with the Manchin-Toomey draft legislation, a background-check requirement would be extended to all advertised commercial sales, including sales at gun shows. Background checks would be conducted either through a [Federal Firearm Licensee] or through a newly-created class of licensed transfer agents.”
This comes perilously close to universal background checks. However, Trump’s deputy press secretary, Hogan Gidley, says the president has not approved the proposal: “Not even close.”
Well, I certainly hope not.
So, here are a couple of closing thoughts:
First, concerns about background checks and a national gun registry are fully justified. In fact, it is those concerns that drive many firearm purchasers to seek legal but “un-papered” transactions, including those at gun shows.
In a National Institute of Justice white paper, “Summary of Select Firearm Violence Prevention Strategies,” written by Obama’s then-Deputy Director Greg Ridgeway, he notes in the “Universal Background Checks” section that the effectiveness of such checks “depends on … requiring gun registration.” He also referenced a “nationwide registration and licensing program,” and claimed that “gun registration aims to 1) increase owner responsibility by directly connecting an owner with a gun, [and] 2) improve law enforcement’s ability to retrieve guns from owners prohibited from possessing firearms.”
I mention this NIJ report because, ultimately, full firearms registration is what Democrats are after, and we can thus thank O'Rourke for his inadvertent reminder.
Second, regarding the statutory language prohibiting the retention of Form 4473 data before it’s destroyed, I believe this prohibition as currently written is insufficient. Any negotiation about background checks should include much stronger statutory regulations against the existence or development of a national firearms registry — and outline the heavy penalties for anyone involved in the creation of such a database.
Third, any negotiation about background checks should include national reciprocity for gun permit holders and, moreover, recognition of such permit holders as pre-qualified firearm purchasers. Far more people are killed by automobiles each year than by firearms, but state driver’s licenses have reciprocity throughout the nation. The same should be true for right-to-carry licenses, which are now held by 8% of Americans.
And finally, broader background checks may create a speed bump in the acquisition of firearms by unqualified purchasers, but given that only law-abiding sellers and law-abiding buyers comply with the law, it will be a small speed bump at best.
What’s ultimately at risk here is the First Civil Right of law-abiding Americans: “the right of the People to keep and bear arms.”
It is evident that our nation has reached the pinnacle of complacent ignorance when some citizens demand the revocation of the one right, the Second Amendment, that assures the security and perpetuation of all others.
Semper Vigilans Fortis Paratus et Fidelis
Pro Deo et Libertate — 1776