Gun Laws & Legislation

The Background Check Fallacy: Nothing Happens When A Criminal Fails

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By Dave Skinner

Recent polls show public support for “improved” firearms background checks hovering between 83 and 90 percent.

I’m a serious gun owner, a life member of the National Rifle Association. More important, unlike most poll respondents, I’m counted among hundreds of millions of National Instant Criminal Background Check System (NICS) transfers processed so far, now averaging about 25 million checks each year. To me, it’s fact, not just poll opinion, that background checks need serious improvement.

I’ve personally filled out and signed my name to the paperwork, read the stern warnings that falsifying anything on the required Form 4473 (eventually archived permanently) is a federal felony worth up to 10 years in the can, plus fines up to $250,000. Yep, I’ve waited, just a little nervously, hoping nothing goes wrong as my background gets checked in some faraway office.

The public is told the point of all this rigmarole is to help law enforcement catch and punish criminals trying to buy guns with an instant slam-dunk felony rap, right? But that’s not what actually goes on.

In September 2018, the Government Accountability Office (GAO) cranked out a report on gun background checks, partly titled: Few Individuals Denied Firearms Purchases Are Prosecuted et cetera. Requested by U.S. Rep. Jose Serrano, (D-NY), GAO’s report provides tons of relevant state and federal data concerning 2017’s 25.6 million background checks, and more important, 181,000 denied transfers.

GAO notes the general makeup of standard (instant) denials for the six years 2011-2017 by federal investigators: Of 36,000 denials investigated, 32 percent were convicted felons, 23 percent misdemeanor domestic violence, and 19 percent unlawful controlled substance.

But don’t believe for a second that these thousands of crooks and crazies investigated are now in jail or someplace “safe.” That’s not happening.

The federal government conducts a share of NICS checks on sales in the 29 states that don’t conduct checks, totaling 8.63 million in 2017. How many were denied? About 113,000.

So far so good, but the Feds “triage standard denials” for criteria such as “a recent violent felony or domestic violence conviction,” focusing on “the greatest threats to public safety.” Thanks to this “triage,” only 13,000 denials were investigated.

Even more bizarre, only 50 (that’s right!) were prosecuted. Convictions? A whopping twelve (yeah 12), with no data on final punishment, felony or otherwise. Let’s see….that’s 719,166 background checks to set up each conviction. Shameful waste, right? Guess what? Since the Brady Bill became law, total annual federal convictions have never exceeded double digits.

What about the state agencies, which processed 16.5 million checks in 2017 using federal and state background databases for either handguns only (eight), or all firearms (13 states)?

Of the latter 13, just three routinely investigate denials (Pennsylvania and Oregon, all; Virginia, some) then selectively prosecute. In 2017, Pennsylvania reported 5,500 denials investigated, 1,907 prosecuted, with 472 convictions, “about 10 percent […]” – better than the Feds, but still lame.

Even lamer, “most prosecutions are pled down to misdemeanors, eliminating the need for a trial,” or the cost of jail at 60 grand a year. Virginia reserves slammer time for “denied individuals with violent felony convictions,” with “90 percent” of convictions “pled down to misdemeanors [entailing] probation or community service.”

Bottom line? The Brady background check system epitomizes the worst of law-enforcement “catch and release” kabuki. Every year, 25 million honest Americans are rigorously scrutinized simply because they choose to exercise a Constitutional right. As a result, hundreds of thousands of stupid criminals get “caught” dead-to-rights by ink on paper. Caught, in a felony no less. Why in Hades are they then almost always released without consequence?

I wish the few remaining adults in Congress would ask that question, and get honest answers. That’s the only way today’s dysfunctional NICS background check system can ever be improved so it will, at long last, enhance public safety through actual law enforcement.

Dave Skinner is an endowment life member of the National Rifle Association. He lives near Evergreen, Montana.