How to Have Gun Background Checks Without Registration

Even if every legal gun sale could be approved and tracked by the federal government, that would have practically no impact on crime. What it would do is redirect limited police resources away from tracking and catching criminals, toward tracking peaceable citizens and harassing them over paperwork errors and violations.

People who commit crimes with guns usually fall into two categories. Either they are one-time killers, in which case a background check will not stop them from legally buying a gun first, or they are career criminals, in which case they are experts at acquiring black market items. In either case, a background check does no good.

That said, in a tiny fraction of cases, a background check might delay a criminal’s plans by pushing him into the black market. In any case, no self-respecting gun owner wants to sell a gun to someone who, due to past criminal violence, cannot legally possess one. So is there a way to set up background checks that do not violate the rights of gun owners or misdirect police resources? I think there might be.

Notice than any possible background check system must employ a “no buy” list, a list of people who may not legally buy a gun. The problem with the existing background check system (and proposed extensions of it) is that it also creates a “buy” list, a list of noncriminals who purchase a gun.

Today’s background check system is a system of gun-owner registration. No, these records are not kept in a central database; instead, they are kept by gun sellers, and they are open to inspection by federal agents at the discretion of those federal agents. Those records could become part of a central database by political fiat. The problem with the federal government registering gun owners (beyond the fact that it’s properly none of the damn business of federal bureaucrats) is that registration can lead to gun confiscation and has already done so in various regions of Europe and the United States.

My modest proposal, then, is to replace the current background check system with one that uses only a “no buy” list. By saying a person with a criminal record cannot legally buy a gun, we are in effect giving that person a sort of extended probation. (The method by which that should be declared is beyond the scope of this article.) Rather than keep its list of criminals to itself, the government could simply publish that list on the internet, along with the photographs of the criminals. Then, if a gun owner wanted to sell a gun to someone, he could check the I.D. and likeness of the buyer against the alphabetized list of criminals. At no point would the gun owner even need to type in the name of the buyer.

Incidentally, employers, dating services, and so on could use the same list for their own purposes.

How would this be enforced? Selling a gun to a known criminal without bothering to check the database would become a tort. If necessary, lawmakers could remove any limitations of liability for those who fail to check the database when selling a gun. Or lawmakers could impose a criminal penalty for selling a gun without checking the database, although this could open the door to abusive enforcement. (It’s already a crime to knowingly sell a gun to someone legally barred from buying one.)

Such a system would have its limitations (as does the current system). Someone with criminal intent but without a criminal record would show up clean. And someone could fake an I.D. But if a criminal has the time and resources to fake an I.D., he’s already able to buy a gun illegally, anyway.

The larger problem with the list is the loss of privacy of those on it. However, if someone goes to the effort of imposing criminal harm on others, I don’t see that loss of privacy as a big deal legally or morally. Moreover, people on the “no buy” list would properly have expedited legal recourse for getting their names removed if appropriate.

Such a list would have a hard time accommodating those declared mentally incompetent to buy a gun. However, I don’t regard that as an overwhelming objection. If someone is so obviously mentally ill that he’s a threat to himself or others, he needs a lot closer attention than simply to be placed on a list. The way to handle such problems is to address them directly, not harass and intimidate millions of American gun owners for the sake of a tiny population of those with severe mental illness.

Regarding those who have some other flag in the background check system but no criminal record, I uphold the view—apparently out of fashion with today’s Democrats—that an individual should be presumed innocent until found guilty by a jury of his peers. If someone poses an objective threat to others, police may detain or observe him. Nevertheless, I’d rather see an openly published list of those with flags, than a system of gun-owner registration.

Obviously, the long-term goal of those who created the existing background check system is to open the door to a system of universal gun-owner registration. If such is ever achieved, the gun banners will fight relentlessly for the universal confiscation of guns, starting with the ones most useful for self-defense.

A possible alternative is for the government to publish and maintain the “no buy” list of convicted criminals (and possibly others) who may not legally buy a gun. If the goal were really to reduce crime, rather than to register peaceable gun owners, that is the plan that politicians would consider.

Image: Wikimedia Commons

3 thoughts on “How to Have Gun Background Checks Without Registration”

  1. Your web-based “prohibited person” list seems like a good idea at first blush, but how are people put on that list? Getting a fake ID is *literally* child’s play, as I know a number of *actual children* who have them. So what would be on the web site? Photographs? Fingerprints? Social Security numbers? Other identifying marks? Will every person applying to purchase a firearm have to have their picture taken and have facial recognition software compare that with the pictures on the web site (since humans can be easily fooled)? Will they have to take off their shirts to show any tattoos? Would every purchaser need to be fingerprinted, to be compared with the list? Would all the prohibited person’s social security numbers be posted on the web for anyone to see? This system *cannot* work, if by “work” you mean protecting the individual rights of the citizenry.

    You need to understand that the idea of a background check system is *not intended* to “work.” It is *not* intended to keep guns out of the hands of bad guys. It is *theater*–interactive propaganda–intended to show the public that thegovernment is “doing something” about guns. According to the NRA, out of the 76,000 “denials” in 2011, only 62 were referred for prosecution, 44 actual prosecuted, with 14 convictions. This is *not* a system that is intended to work. It is a system intended to harass gun buyers and in particular to harass gun sellers. The more gun sellers that can be forced out of business, the more the RKBA is infringed. It’s the same with abortion. If you legally harass and regulate abortion providers to the point that they all quit or move elsewhere, you have succeeded in a de facto ban on abortion. All of these gun rules are intended to do just that. Driving gun sellers out of business due to technical paperwork transgressions of mountains of incomprehensible rules is the *exact* purpose of all of these laws.

    In addition, all of these schemes are created with the understand that the government bureaucracy will perform flawlessly in the execution. That is, they are designed as if they will be implemented in a fantasy world. In the world we exist in, these government systems will be filled with mistakes, staffed by bored unmotivated government drones who don’t really care most of the time, and managed by political appointees whose idea of how to execute the system is based on the political winds coming from their political overlords.

    There is, in essence, no such thing as a good background check system, no background check system that could work. As Harry Binswanger pointed out, “background checks” represent preventative law, and preventative law is both morally wrong and unconstitutional.

    In your entire post you didn’t mention the real problem: people erroneously put on the list. How do you deal with that? It once was said in the legal profession that it is better that ten guilty men go free rather than one innocent man go to jail. The philosophy of the background check system is the exact opposite: it is better that 75,986 innocent people be denied their constitutional rights in order to send 14 guilty people to jail. That is the reality of the current (and indeed any future) background check system.

    In summary:
    1) Background checks are both immoral and ineffective. They are preventive law.
    2) Any background check system cannot work, will be filled with inaccuracies, and will end up doing more harm to individual rights than protecting them.
    3) Instead of focussing on who is allow to have guns, we should keep violent criminals off the streets, and violent mentally ill people in a hospital until they are rehabilitated/cured.
    4) Since in the US today with its convoluted and byzantine legal system, it has been estimated that every single person commits 3 felonies a day, the prohibition on firearms possession based on a non-violent felony conviction is both immoral and unconstitutional.
    5) Loss of liberty can *only* be done by a judge and jury, *not* by the legislature; and this includes the loss of the right to keep and bear arms.

  2. Ed, I appreciate your comments, but I’m afraid you’re missing the basic point of my idea, which is that gun buyers would not be put on any list. The list I’m taking about is only a “no buy” list of convicted felons (and possibly others legally prohibited from purchasing a gun). As I said, the list would be useless for checking those with convincing fake IDs. (But the current system does not hinder those capable of acquiring convincing fake IDs from acquiring guns, either.) Obviously the problem of criminalizing activities which should not be criminalized is a real one, and one much broader than the current debate. If you want to argue that, in a just system, there would be no such thing as after-prison probation, you are free to do so, but I’m not convinced it would be a good idea. To me, the idea of putting some violent criminals on probation following a possible prison sentence seems perfectly natural and desirable. I’m simply arguing that part of that probationary period (which could be for life in some cases) would involve placing the person’s name and photo on a public internet site.

  3. To reinforce your point about ability to get fake IDs and use them to obtain firearms: I know of an 18-year-old who used an obviously-fake birth certificate to obtain a real Colorado ID from the DMV in Fort Collins. I think the main purpose was early entry to bars. It was also used to purchase a brand-new semi-auto handgun from a local dealer – including background check and waiting period (it was 1997). Gun was stored in his CSU dorm room.

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