The Background Check Deal: Grandstanding Or Good Idea?
The Manchin/Toomey proposal on background checks isn't perfect, but it isn't horrible either.
As I noted early today, Senators Joe Manchin and Pat Toomey, joined by other Senators including Illinois’s Mark Kirk, announced that they had reached an agreement on a proposal to make changes to the nation’s gun purchase background system:
WASHINGTON — A bipartisan collection of senators on Wednesday announced a compromise measure to expand background checks for gun buyers, increasing the chances that a viable package of new gun safety laws will soon hit the Senate floor.
Senators Joe Manchin III, Democrat of West Virginia, and Patrick J. Toomey, Republican of Pennsylvania, have spearheaded the deal.
Under the terms of the agreement, background checks for gun buyers would expand to gun shows and online sales — a huge portion of gun sales that are made without the background checks used by gun stores — and it would maintain record-keeping provisions that law enforcement officials find essential in tracking criminal gun use, but that gun rights groups find anathema.
The bill would also modify the current measure, which will receive a procedural vote on Thursday, in other key ways. For example, the background checks provision would extend to fewer gun buyers than many gun control groups — and some Democrats in the Senate — would like. Sales between family members, for instance, would be exempt.
Further, other provisions of the current background component of the gun safety bill were removed, including one requiring that each state validate another state’s concealed carry permits and another one limiting Internet sales to five guns per year.
The compromise, which two weeks ago seemed elusive, is designed to pull in as many members from both parties as possible — including Democrats running for re-election in Republican-leaning states — to favor the bill.
“This is a start,” Mr. Manchin said. “This is not the end of our work.” He added: “Americans on both sides of the debate can find common ground. I can’t say enough about my friend Pat Toomey.”
(…)
The agreement contains changes that will draw the attention of gun rights supporters and gun control advocates. The original measure would have allowed someone to have weapons that would be prohibited in a state by claiming to be just passing through; under the agreement, the burden would shift to the traveler to show that he or she was actually traveling, and the burden would not be on the government to prove it.
But the new agreement has other provisions that are in the current proposal headed for the floor. Gun sellers would be given immunity from lawsuits if a firearm they sold was used in a crime. It would also permit dealers to travel to another state and transfer guns at a gun show there as long as they abided by the laws of that state. And it would permit active-duty military members to buy guns in their home states and in states where they are based.
The legislation itself is summarized on Senator Toomey’s Senate Office web page. Here are a few of the highlights of what it covers:
– Closes the gun show and other loopholes while exempting temporary transfers and transfers between family members.
– Fixes interstate travel laws for sportsmen who transport their firearms across state lines in a responsible manner. The term “transport” includes staying in temporary lodging overnight, stopping for food, buying fuel, vehicle maintenance, and medical treatment.
– Protects sellers from lawsuits if the weapon cleared through the expanded background checks and is subsequently used in a crime. This is the same treatment gun dealers receive now.
– Allows dealers to complete transactions at gun shows that take place in a state for which they are not a resident.
– Requires that if a background check at a gun show does not result in a definitive response from NICS within 48 hours, the sale may proceed. After four years, when the NICS improvements are completed, the background check would clear in 24 hours. Current law is three business days.
– Requires the FBI to give priority to finalizing background checks at gun shows over checks at store front dealerships.
– Authorizes use of a state concealed carry permit instead of a background check when purchasing a firearm from a dealer.
– Permits interstate handgun sales from dealers.
– Allows active military to buy firearms in their home states.
– Family transfers and some private sales (friends, neighbors, other individuals) are exempt from background checks
As you might imagine, reactions to this plan depends upon where one sits in the debate over guns itself. The National Rifle Association, for example, has already come out against the Manchin/Toomey proposal:
“Expanding background checks at gun shows will not prevent the next shooting, will not solve violent crime and will not keep our kids safe in schools,” the NRA said. “While the overwhelming rejection of President Obama and Mayor Bloomberg’s ‘universal’ background check agenda is a positive development, we have a broken mental health system that is not going to be fixed with more background checks at gun shows.
“The sad truth is that no background check would have prevented the tragedy in Newtown, Aurora or Tucson,” the NRA’s statement continued. “We need a serious and meaningful solution that addresses crime in cities like Chicago, addresses mental health deficiencies, while at the same time protecting the rights of those of us who are not a danger to anyone. President Obama should be as committed to dealing with the gang problem that is tormenting honest people in his hometown as he is to blaming law-abiding gun owners for the acts of psychopathic murderers.”
Reason’s Jacob Sullum makes a similar argument:
The Manchin-Toomey bill would require background checks for people who buy firearms from private sellers (i.e., sellers who are not federally licensed dealers) at gun shows or anywhere else if the transaction is initiated online. Since Manchin describes that requirement as a response to the Sandy Hook massacre, you might reasonably surmise that Lanza bought the rifle he used in the attack from a private seller at a gun show or after seeing it advertised online. But you would be wrong, since the rifle belonged to Lanza’s mother, who purchased it legally from a federally licensed gun dealer after passing a background check. And if Lanza had tried to buy a gun on his own, it looks like he also would have passed a background check, since it seems he did not have a disqualifying criminal or psychiatric record, which is typically the case for mass shooters.
Hence it is hard to see a logical connection between the Newtown murders and the proposal offered by Manchin and Toomey. But that does not matter, because it makes them feel as if they are doing something to prevent such crimes. And isn’t that what laws are for, to make legislators feel better?
Sullum’s criticism is well-taken. It is undeniably true that there’s nothing in this proposal that would have prevented Adam Lanza from acquiring the weapons that he used in the Newtown massacre, in no small part because the weapons in question belonged to Lanza’s mother and he effectively stole them from her before killing her and then going to Sandy Hook Elementary School. It’s less clear that tightened background checks would have had an impact on the Aurora or Gabby Giffords shootings given that both James Holmes and Jared Loughner acquired their weapons from licensed federal firearms dealers and underwent background checks. Had there been more open reporting of people who are dangerously mentally ill, it’s entirely possible that both men might have been prevented from acquiring weapons, although that’s by no means guaranteed.
The question, though, is whether the fact that Manchin and Toomey cited the Newtown massacre as the motivation behind their move today, combined with the fact that these changes to the background check system would not have prevented Lanza from getting access to weapons, means that their proposal lacks merit. Sullum makes a good point that it is often true that legislators respond to a crisis by proposing things that make them feel good, and to make it appear to the public that they are addressing a problem when they really aren’t. Is that what’s going on here? Sullum doesn’t go into any detail on that question, but I don’t think so. Making it more difficult for violent criminals and people who are dangerously mentally ill from acquiring weapons strikes me as good public policy, and contrary to some of the arguments I’ve seen from some of my friends on the right, I do not think that a credible argument can be made that a law that requires someone to undergo a criminal background check before purchasing a weapon is unconstitutional. Indeed, I doubt you’d find much support for that argument even among the more conservative members of the Federal Judiciary. There could be questions about how such laws are applied and what standards are used to put someone on the list that makes them ineligible to buy a weapon, but on it’s face the law strikes me as perfectly acceptable.
That said, there are several questions and caveats that should be raised here, and which constitute what I’d consider legitimate questions about the Manchin/Toomey proposal or any other. Here are a few:
- What, exactly, are the crimes that get one on the list that bars one from gun ownership? Would any felony conviction suffice, or only ones that involved violence or the use of a weapon? Would drug convictions that amounted to felonies but didn’t include violence count? What about essentially “white collar” crimes that didn’t involve violence?
- What are the circumstances under which someone who is deemed mentally ill can be reported to the state and placed on this list? Who has the authority to make this determination, what protections are their for the privacy of patients, and who else would have access to this “mental illness” information?
- What procedures would there be for someone being able to petition to question their inclusion on this list? As we’ve learned from the “No Fly” list developed by the FAA and the TSA, databases such as this have a proclivity for containing mistaken information.
These are only three of the issues that come to mind for me. Most of them, though, are matters of state law rather than federal law, especially when it comes to the first two questions. In some sense, then, it may not be fair to pepper Manchin and Toomey with questions about how their legislation would deal with these problems. Nonetheless, I think the questions should be asked.
On the whole, and based just on the descriptions we’ve seen so far, though, this strikes me as a good plan that, in the end, enacts only relatively trivial procedures that are designed to keep guns out of the hands of people who shouldn’t have them in the first place. Isn’t that a goal everyone can agree on?
UPDATE (James Joyner): See also our earlier posts “Aurora Massacre Laws That Wouldn’t Have Prevented Aurora Massacre” and “Obama’s Gun Plan Uses Sandy Hook, Wouldn’t Have Prevented It.”
My general sense is that there’s relatively little we can do about the mass shootings or, indeed, murders by professional criminals, through reform of our gun laws. This could be a case of “not letting a crisis go to waste,” though, in that one-off shootings and suicides, not shooting sprees and the mob, are the main gun problems.
The sad thing is that by opposing background checks at gun shows, the NRA is implicitly supporting purchases by felons at gun shows.
They really would like to roll back to some version of America where felons can own as many guns as they want, and then of course non-felons should buy guns to protect themselves.
Well, Doug, the NRA says No, so this isn’t a goal everyone can agree on. You have to understand the view of many of their most committed members. If you are a stone cold paranoid conspiracy theorist who believes that the nig%=r in White House is coming to take away our guns and that this is the first move, well, hell, no, this isn’t a goal you can compromise on.
On first glance this seems fine. Nothing in there would of prevented any of the mass shootings last year so I don’t imagine it’ll make the anti-gun nuts very happy.
Some of the fixes have been needed for some time (such as the firearm transport fix etc).
The National Rifle Association, for example, has already come out against the Manchin/Toomey proposal:
The NRA has made it quite clear that their position is anyone who wants a gun should be able to get one by whatever means with no restrictions whatsoever. So of course they oppose this proposal. They work for the companies that make guns. They want to make buying that product as easy as possible. They don’t care one whit about how many people are killed.
Im not sure what will fix this problem but I would like to see people be more responsible owners, start by locking your guns up away from kids and if you have a member in your family with mental problems make sure there is no way for them to get at them. Back ground checks are good but will not keep guns out of the wrong hands.
@matt:
You have bought into a completely illogical framing.
“Nothing in there would of prevented any of the mass shootings last year”
What about the mass shootings that didn’t happen last year?
@john personna: Well it’s a fact that this law wouldn’t of stopped a single mass shooting last year.
What relevance at all does that have to do with what I stated?
@matt:
I can lay out the logical, rational, progression very easily. The high profile shootings in recent years created a tipping point in public opinion. When the threshold was reached, the public was ready to examine current gun laws and to seek improvement.
One set of laws we have is that (a) felons should not own guns, and (b) that background checks should ensure that felons do not own guns.
Of course, we realize that background checks have not been universal. Shop at location A, get a background check. Shop at location B, get no background check.
It is a simple logical progression from (a) felons should not own guns, (b) that background checks should ensure that felons do not own guns, to (c) close the gaps in background checks.
It is kind of a dullard’s argument, and argument for stupid people, to say that a-b-c doesn’t matter, because the only crimes that matter are “mass shootings last year”
Seriously, some pro-gun folk have invented a rule for argument. Their rule is:
“new laws may only apply to the kinds of mass shootings we’ve just happened to have in the last year”
You are not allowed, under these rules, to have reached a broader conclusion about gun violence in America.
I appreciate the analysis. Thanks. One quibble, you seem to be saying:
“If no law can be passed that specifically would have prevented Sandy Hook, then no law should be passed at all.”
Strikes me as a bit of a stretch. Seat belts don’t prevent car accidents.
The “gun show loophole” is BS. Complete BS.
If you’re a licensed gun dealer, EVERY sale has to have a background check — no matter where it happens.
If you sell a certain number of guns in a year, then you better register as a gun dealer or you’re in trouble.
The “gun show loophole” is that private owners looking to sell a gun or two and buyers looking for a gun can readily find each other. They can also find each other through classified ads, word of mouth, even signs posted on telephone poles. The event of a gun show is simply a matter of convenience.
Personally I see this mostly as “feel good” legislation. The required background check for private sales seems pretty unenforceable absent a fairly comprehensive gun registry. I think that’s why the NRA opposes it – they probably see it as a stepping stone to a nationwide gun registry.
There are millions of private owners of firearms and I wonder how many will even know this new requirement exists when they go to sell their guns in a private transaction. Will the background check process be friendly and efficient enough for an average citizen to use? The process needs to be easy if one hopes to maximize compliance. It will probably provide a big boost to FFL holders who could act as brokers for parties in a private transaction.
The transportation provision is probably the most useful part of the bill.
@john personna: So what it still doesn’t change my original point that none of the mass shootings would of been stopped…
You’re arguing about something I never even mentioned.
@john personna: When the anti-gun’s argument is OMG WE NEED MORE LAWS TO PREVENT THE MASS SHOOTINGS THAT OCCURRED!!!! Then you can’t blame me for pointing out the painful obvious fact that none of those shootings would of been stopped by this new proposed law. If anything you should see this as a reason to advocate for more tougher laws but for some reason you are too pre-occupied with some silly argument that I didn’t even make.
Like I said earlier since this new round of laws wouldn’t of stopped any of the mass shootings last year we’re inevitably going to re-visit this discussion the next time some nutcase goes off in an attempt to get glorified by the media..
Other then that I’ve already stated that I believe this is a probably a good start which you seemed to of completely ignored in your zeal to argue..
@Andy: “I think that’s why the NRA opposes it – they probably see it as a stepping stone to a nationwide gun registry”
Quick — name one thing in the world that the NRA doesn’t see as a stepping stone to a nationwide gun registry.
It’s more granstanding….as predicted. If it passes as is (which it won’t), it is the weakest of the weak tea.
Sad to say, but this was a very big opportunity to do something meaningful and it’s gone to total waste.
….eh…..WTF?.
Another redundancy….but must make them feel good?.
Another redundancy….but must make them feel gooderer?.
VERY very key point to the ‘debate’……er…..no, no it’s not. Good lord.
One would think that if they wanted to really do this right, instead of going off half cocked on a bunch of stupid side issues they should have focused heavily on mental health checks as part of a purchase background check. They didn’t. Now if they want to revisit this issue anythime soon, they wasted all their political capital.
And for what it’s worth, if I purchase a pistol at a gun show…I get a background check.
If I puchase a pistol online….I get a background check.
If I purchase a pistol online from a different state….I get a background check.
Talk about pissing into the wind.
Legislation evolves….see the history of SS.
I am less than overwhelmed by this…but it’s a step forward…as opposed to the status quo which 92% of the country opposes.
Next nut-case…well get universal.
The PPACA will get better too.
In the meantime Republicans like Rand Paul will continue to lie about their records and the facts in order to try to survive.
All the rhetoric about ‘everything on the table’ including mental health issues was indeed nithing but rhetoric.
@C. Clavin:
How do you skirt the HIPAA laws to do this?.
I think you would have better luck trying to grab all guns.
The number of non-licensed sellers at the gun shows I attend is vanishingly small. But, if a non-licensed seller and his potential customer walk out side to complete their transaction, what then? Suppose the two parties are “friends” who met at the gun show by chance? What good is a 24 hour clearance time for a background check at a half-day gun show?
As to “internet initiated” sales, are they any different from sales advertised in a newspaper? How about those initiated with a note stuck on a community bulletin board? Suppose the seller uses all of these venues and more? What then? Who decides which one was the actual trigger for the sale?
Sales between “friends” “neighbors” and “other individuals?” Really? Who gets to write the definition for those terms?
All is nonsense anyway. Laws don’t prevent crime, but merely provide the mechanism to punish those who violate them.
I don’t know enough about unlicensed gun dealers and licensed gun dealers and the like. I won’t pretend to have this knowledge, either. But, there is little reason to challenge the notion of simply making sure the party buying a gun is allowed to carry a gun.
I see this like I see the constitutional right to vote. Yes, we have the right to vote. But, we have to perform certain tasks to be able to vote. For example, we have to register to vote. We have to remain non-felons (in most states). This is the same thing. People have a general right to carry weapons. But they don’t have unfettered access to weapons. Making sellers of guns verify that their buyer isn’t a bank robber or whatever is a worthwhile approach. The non-bank-robbers will be fine. The bank robbers won’t be able to buy the gun from that particular seller.
This seems to be a classic case of yes, it may not do much good, but there’s no downside, so why not? If it inhibits a few straw buyers from supplying Chicago so easily, and requires a little paperwork from gun sellers, what’s the problem?
@Andy:
Not only gun registry, but registration and licensing of gun owners. I don´t think that would be a bad idea, but, obviously, I don´t live in the United States.
@wr:
It’s things like this that feed that narrative:
http://www.columbiatribune.com/news/highway-patrol-gave-feds-missouri-weapon-permits-data/article_266b644e-a235-11e2-a8e7-0019bb30f31a.html
@markm: Meh…without a proper registration, licensing and liability insurance effort you’ll see this one-off stuff.
As an aside, I’m not a fan of concealed carry anyway – always felt that if you feel you must have a gun (for whatever reason) it should be out in the open so everyone understands who they are dealing with. If it’s good enough for the military and the cops, it’s good enough for me.
@matt:
And requiring a driver’s license to operate a car didn’t prevent any of the car crashes last year, so therefore it’s not worth it to require driver’s licenses…..
@Tony W:
It’s not one off stuff….that’s the problem.
I don’t want to sidetrack the discussion but it is not up to you if you how you carry. Your state law determines that.
Also, the “internet loophole” is equally fictional. It is illegal for a private citizen to ship a gun to another private citizen — at least one party must be a federally-licensed gun dealer. In fact, quite a few gun dealers make a little money on the side by being a shipper or receiver for such transactions between two private individuals, and they have to verify that the sale is legal.
For example, say I wanted to sell my AR-15 to Mr. Mataconis. After we agreed on a price, I would either find a local gun dealer to ship it to him, or he would find a local dealer for me to ship it to. The dealer would charge for his/her services, and make the necessary background check on Mr. Mataconis to make certain he was legally entitled to own the gun — or put himself/herself at legal jeopardy.
(For the record: I don’t own an AR-15, and I have no idea if Mr. Mataconis would be interested in owning one. The above example is purely hypothetical.)
@Jenos Idanian #13:
.
Fact…and I mentioned that above.
If you purchase off the interwebz (in state or out of state), the weapon goes from FFL to FFL for a fee to cover shipping and background check.
@markm: Yes, you did mention it, but you were slightly off on the details. It does NOT have to go from FFL to FFL; only one FFL need be involved — either shipper or receiver, but not necessarily both.
And, as I recall, must be shipped unloaded and without any accompanying ammunition…
Pretty well done Doug. The only “problem” left for me is the Database problem — where is the data kept, for how long, how is the government permitted to use it, etc.
The government has already proven to my satisfaction that they can’t be trusted with any more data than is absolutely necessary — so how much is necessary? For how long? Where? And …
@Jenos Idanian #13:
Heh, yes, very correct.
And before anyone asks, CRAIGSLIST does not sell weapons (other than paintball guns and BB guns).
Well, how do we keep guns out of the hands of people we think really shouldn’t have them?
I guess for the NRA, the woman who was shot by a 4-year old fooling around with a gun is just acceptable wastage. Too bad, so sad. But we gotta put up with it because FREEDUM!
I swear, we Americans are the stupidest people in the world.
@grumpy realist:
* Include ALL mental health records in a background check (dunno how you can get around the HIPAA laws to do this).
* Enforce the laws currently on the books.
http://www.usnews.com/news/blogs/washington-whispers/2013/03/28/chicago-los-angeles-new-york-prosecuted-fewest-federal-gun-crimes
In other words, get serious about taking out the criminals instead of getting sidetracked on redundant feel good legislation that won’t affect the criminals.
Markm and Jenos…a looney bin bromance
@C. Clavin:
Thanks for your wisdom and deep insight on the topic at hand.
@Jenos Idanian #13:
Sorry, overlooked this part.
By law, the only time I can ship a weapon is for repair. So if you purchase a weapon from me (particularly from a different state), you pay me, I transport it to an FFL in my area and he/she would ship it to an FFL in your area for you to pick up.
Either way, you don’t pick up the weapon at your FFL without a background check.
@markm: And the feds swoooped in and confiscated all those guns, right? Then put the gun owners in FEMA concentration camps?
Wait — you mean they didn’t?
@Jenos Idanian #13:
Correct. It really is a “private transfer” loophole. As you say, gun shows just present a great opportunity for these type of paid transactions to take place. Hence why it makes sense to legally require every transfer to involve a background check (via a website) and be logged.
Of course, a lot of people’s response to this is that it’s “unenforceable.” But that seems like weak tea. As @Jenos Idanian #13 reminded us, all private weapons shipments need to go through an FFL. However, this is also, to some degree “unenforceable,” yet people do it.
@wr:
What is that in response to?.
@grumpy realist: That woman was married to a Sheriff’s Deputy who was showing the weapons to a relative. Are you suggesting LEOs are not qualified to own firearms?
http://www.cnn.com/2013/04/08/us/tennessee-gun-death
You can’t legislate away stupidity or accidents, no matter how hard you try.
@Rafer Janders: Well then stop using the mass shootings and the victims as props to support this ineffective change in law. You and your side still use the rallying cry of OMG REMEMBER SANDYHOOK PASS THIS BILL while apparently now acknowledging that none of the changes that were “motivated” by the mass shootings would of stopped any of the mass shootings themselves…
Your “example” doesn’t even remotely make sense in comparison to this situation.
@grumpy realist: How do you keep guns out of the hands of those we don’t think should have them? Maybe start off by prosecuting those that break the law? The owner of that gun was clearly negligent and should be brought up on charges…
Unfortunately I doubt the owner or the parents will be charged and we’ll continue to not enforce laws that are already on the books..
@C. Clavin: So, which makes you more jealous — that we know more about the subject than you, or that we can discuss it civilly?
And let’s sum up the logic here behind the proposals: we’re all so upset and outraged over these mass shootings, we’re going to pass some new laws that wouldn’t have prevented a single one of those recent shootings.
It isn’t important to do something, just that we look like we’re doing something.
That about it?
@Jenos Idanian #13: Apparently we should close the “shoot your mom in the face and steal her guns” loophole.
@Jack: Two things:
1) I think you have the sequence backwards;
2) The kind of people who would break existing laws would, indubitably, be stopped by a new law. They wouldn’t dare break THIS law, after all…
@Jenos Idanian #13: Jenos, I’m agreeing with you and my last comment was very tongue in cheek.. Nothing in this current bill would make schools any safer or prevent criminals and mentally ill from getting guns and so forth. The bill closes loopholes, apparently. Loopholes that don’t actually exist. But it’s something. And we must do something. Even if it’s stupid. And we get bonus points for doing the same stupid thing again!
Already, it’s being said that this is all they can pass now, but they will await the next mass shooting, wave the bloody shirt around ala Michelle Obama, and ask for even more prohibitions until they get what they ultimately want–bans on all private ownership of guns.
@Jack: I think you both are.
Found on the internets:
I submit that people who said “would not have stopped this year’s spree killings” do not in fact know how to work a counter-factual.
@john personna: I said last years as in the ones we know about and they either got their guns from a straw buyer, a legal purchase (which some passed background checks to get but others would of passed), or via theft. I merely made an observation of the facts and that the anti-gun nuts shouldn’t be too pleased with this compromise.
Maybe it’ll stop a shooting this year but no one will know for sure. I would like to hope so.
@matt:
Are you familiar with the flaw known as mental accounting?
Because you are clearly “keeping accounts” here, and discounting people stopped from buying by background checks, because insert bullshit.
@john personna: I’m just stating facts. I’m not making any predictions for the future. Your insistence on arguing with me over every little tiny thing is getting tiring. I suggest you consider finding a different hobby.
Of course the only reason this observation hurts you is because you support dragging the families of the shooting victims out to garner public sympathy. Hurts you when I point out that none of these laws would of saved any of those people..