What does "Universal Background Check" mean?

[pipoman]

My Background

I can't think of a single issue so awash with disinformation as the gun issue...from both sides.. It is no secret that I fall on the side of liberal interpretation of the second amendment and every other civil right/liberty. I grew up on the rural plains where hunting was a way of life in the 1970s and still today. I worked for several years as a defense investigator licensed by my state attorney general including a permit to carry a firearm concealed. This was before public concealed carry was legal, very few people could legally carry concealed at that time. I had a safe in my vehicle and at home and only carried when I was hired to carry as plain clothes security or when doing particularly dangerous process service or while working in neighborhoods which might not 'cotton to strangers' as they say..Assisting in the defense of people who were guilty of unbelievable crimes while maintaining the same level of assistance as someone who I strongly felt was falsely accused requires, morally, a belief that every person deserves full advantage of all of their enumerated rights, rights recognized by statute and rights recognized through case law to their best advantage. I know people who used these things which resulted in a guilty person going free, and I know people who are in prison who shouldn't be there.

I hate carrying a gun and is one reason I left that business in a midlife career change...haven't carried since. My interest in this issue is protection of the right...not to the complete exclusion of all regulations by any means..in fact there are very few regulations on the books I disagree with including requiring background checks on gun transactions.

What does "Universal Background Check" mean?

The "gun show loophole" as it's come to be known, and more recently 'internet gun sales' are names (seemingly arbitrarily) given to the one and only type of retail gun sale not required by federal law to have a background check conducted for firearm sales. That one and only type of sale could be described completely accurately as 'private intrastate firearm sales' hereon referred to as PIFS.

Private intrastate sales are sales between two people who live in the same state selling used (any items) items which are not illegal to possess federally when the seller is not 'in the business' of selling the item being sold. The federal government has the jurisdiction to enforce federal laws (also somewhat arbitrarily) pertaining to interstate commerce, and do not have jurisdiction in crimes taking place within a state with no interstate aspect. This is the constitutional limitation on the jurisdiction of the federal authorities referred to as the 'interstate' "commerce clause".

Article I, Section 8, Clause 3:[3]

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

In 1994 the Brady Bill became law (endorsed by the NRA) which formed the "National Instant Check System" NICS for the purpose of conducting instant background checks for firearms purchases, and required background checks on all but PIFS. PIFS were exempted because it was determined during the committee process to violate the interstate commerce clause to regulate these sales federally. This exemption is very distinct. The only sales which was determined to be outside the jurisdiction of the federal law were sales between two citizens of the same state when the seller is not engaged in the business of selling firearms, the sale is completed within their mutual state of domicile, and the seller is not aware that the buyer is not prohibited from owning a firearm (there was no mechanism put in place for these sellers to determine if the person is or is not prohibited). All other retail sales require an NICS check, or a state check which exceeds the NICS check...in some states people with concealed carry license are exempted because the background check required to obtain and maintain the license exceeds NICS checks. Virtually every other sale requires a background check, NICS or better.

Internet sales are not exempt unless both buyers live in the same state. If I wish to sell a gun to a buyer in another state, I must mail the gun to a Federal Firearm Licensee (FFL) in the buyer's state where the buyer must have a background check before taking possession. FFL dealers must conduct an NICS check before delivering a gun to anyone regardless where the buyer is or is from...

Gun show sales are not exempt unless the sale is PIFS. Most gun show gun sellers are FFL dealers, all sales must go through NICS.

There are some guns legally sold by private individuals at gun shows and from ads on the internet..there are also sales at garage and estate sales, through local printed classifieds, at single seller auctions and many other venues.

Do gun sales initiated on the internet legally result in sales without background checks? Yes. Usually craigs list or some local internet classifieds. Most sales on the big internet auction sites are interstate sales and/or the seller is a FFL and do require a NICS check. These sellers will make no exceptions..they will only ship to a FFL dealer in the buyers state for the buyer to pick up.

Do sales of firearms at gun shows require a background check? Yes, unless the seller (non-FFL) is selling to a resident of the same state and the gun show is in the state they both live.

For a federal requirement for PIFS to have a background check legislators must find a way around the commerce clause problem. Several states have enacted legislation requiring background checks for private sales which is completely constitutional.

This is an attempt to help people who have not kept up with this issue understand what the current conversation is about, not to sway anyone's beliefs. If you see factual inaccuracies or have further explanation please point them out.

[Electric Monk]

1. It's a really big universe

[Hoyt]

2. It ought to mean that every transfer is checked, even when you introduce your kids to gun culture.

What if a background check -- with mental health assessment -- had been done when NRA President Keene introduced his son into the the gun culture. Maybe the kid would not have grown up to shoot someone in a road rage incident.

Of course, gun cultists are opposed to any of that because they fear they might be the next Zimmerman (albeit unintentional, well maybe) and be precluded from keeping firearms near, including tucked down their pants standing in line at Chuck E Cheeze.

We have gun lovers right here who can't stand the idea of having to go to an FFL, rather than selling a gun in the back alley to someone who offeres a fist full of cash.

You guys really need to start acting responsibly about your guns, whether or not any specific law actually require it.

[pipoman]

7. Another constitutional impossibility..

testing for exercise of enumerated civil liberties will never pass any constitutional challenge, nor should it.

Your repeated 'youse guys have to' statements, pretending that 100,000,000 people are somehow supposed to act in unison is akin to saying 'all you drivers better reign in drunk drivers' or some such impossibility. Masses of people have always been and always will be regulated through laws and regulations imposed and enforced by law enforcement.

[Mnpaul]

3. No guns sales on Craigslist

Prohibited and flagged off very quickly.

[pipoman]

6. True

Probably would have been better stated by saying local classified ads...Backpage, online newspaper classifieds, etc..

[safeinOhio]

4. There is no way to stop, or at least slow, interstate sales to

prohibited persons with out mandatory background checks. Until a state can file suit against another state when a firearm crosses state lines, background checks are needed.

[pipoman]

5. I agree

just don't believe it can be done at the federal level without undesirable consequences regarding other issues of intrastate commerce which we would likely agree aren't desirable, or a constitutional amendment. This has been going on for 20 years and we are really no closer today to having mandatory background checks than we were then. It is a vicious cycle based on disinformation. Something bad happens, people start talking about the "gun show loophole" and now internet sales as if these are two different issues to the exclusion of any other purchasing scenario. I suspect the masses who don't follow this issue believe background checks aren't required at gun shows or online. A bill goes up, committee hearings occur, and determine requiring checks on this very specific scenario would be overturned on an argument of violation of the commerce clause, so the bill dies in committee until the next tragedy when it is pulled back out, dusted off and tried again..only to fail again and leave us right where we were. I believe the result of these repeated attempts to pass constitutionally impossible legislation, ending in inaction, huts our party and this cause far more than it helps.

Some states have or are beginning to require checks. To do so they have to set up their own systems. This is expensive and ongoing..worth it I believe, but many states simply won't spend the money. As it is NICS isn't available specifically for private sales. Some FFL dealers will do them I'm sure, but they are not required to, they can charge what ever they wish for accessing this publicly funded database which should be available to anyone wishing to use it outside of a state requirement. Many FFLs will not do private transfers between 2 people of the same state, they will only take weapons from other FFL dealers and transfer to someone locally...interstate internet transactions, or auction purchases..then they may still charge what ever they wish for access to this government owned system..
There are many regulations placed on FFL dealers as a condition of licensure. One of them is not to conduct NICS transfers upon request. They may do them, they may not, they may charge what ever they wish for them, they are not required to do them in a timely manner. A simple condition of licensure amendment, a regulatory change could change all of that. A requirement on all FFL dealers to conduct NICS transfers upon request, in a timely manner, for a reasonable statutory fee would make it possible for states to enact legislation requiring NICS checks on private transfers without having to set up their own costly system. Further, states which use this system in legislation would, I believe, result in more complete reporting of prohibited people by those states...something which is also a problem. While states are supposed to report, there again is no requirement upon them to report because of state sovereignty issues concerning unfunded mandates..

Following up on the regulatory change requiring FFLs to do NICS transfers upon request, a public service campaign explaining this availability and the benefits of using it voluntarily in states where intrastate transfers do not currently require a background check would be helpful. Benefits like immunity from civil or criminal liability for future unlawful use of the gun when the system is used to transfer. Kiosks at gun shows providing information and doing free or reduced cost transfers...something which could be done now, but is not..Then pushes at the state level for laws requiring private sales be run through this enabled system..I believe the majority of gun owners would not fight this and states would begin enacting legislation. This is the approach of the NRA...to effect change at the state level. The vast majority of gun owners do not wish to sell guns to prohibited people, and do not want others in their state selling to prohibited people.

I believe the result of these repeated attempts to pass constitutionally impossible legislation, ending in inaction, huts our party and this cause far more than it helps.

I too wish for universal background checks. I am tired of the same scenarios playing out and lack of progressive action.