By Adam Winkler
Universal background checks for gun buyers are at the center of President Barack Obama’s proposed gun-control agenda. This reform would close gaping loopholes in our partial background check system. Yet to be both effective at reducing crime and respectful of Americans’ Second Amendment rights, the president’s proposal falls short in two ways.
Background checks should be truly universal. And they should be free.
Under current law, a purchaser must submit to a background check whenever he or she buys a gun from a federally licensed gun dealer. The dealer runs the buyer’s information through a computer database, which usually returns an answer within minutes, if not sooner. It’s not a significant burden on buyers, save for the felons and people adjudicated to be mentally ill (“prohibited purchasers”) who are rejected.
You don’t need to be a gun dealer, however, to sell a gun. Unlicensed (or private) sellers — people who aren’t ordinarily in the business of selling firearms — can sell firearms without having to conduct background checks. This is the source of the so-called gun show loophole, which is a misnomer; there are no special rules for gun shows, but they are handy places for people who don’t want to submit to a background check to buy guns.
In fact, the loophole is much broader than gun shows. A private seller can sell a gun through classified ads, a yard sale or in the parking lot of a shooting range. Between 15 percent and 40 percent of lawful gun sales are private, with no background checks. Yet the president’s plan does not go far enough.
In a bow to the gun lobby, Mr. Obama has endorsed an exception to universal background checks for transfers of firearms within families. The argument is that a father who wants to pass on to his son a beloved rifle shouldn’t be burdened by having to conduct a background check. And family members, who are most at risk, should have every incentive to refuse to give a felon or dangerously mentally ill person a gun.
The data, however, suggest the opposite. It’s those closest to a prohibited purchaser we should trust the least.
In studies of prison inmates, nearly 35 percent obtained their guns from friends and family members — the largest source of criminals’ guns. Studies also show that many “straw purchases,” in which a person buys a gun on behalf of a person who cannot legally do so, are made by spouses, girlfriends and other close friends. Personal relationships often make it difficult for someone asked to buy a gun to say no.
Every gun transfer, including those within families, should require a background check. No exceptions. No loopholes.
The president should also include an additional reform: All background checks should be free.
In states that already mandate background checks for private sales, buyers and sellers have to go to a licensed dealer for the check. Dealers, who don’t much like the hassle of completing a sale they won’t otherwise profit from, typically charge upward of $35 for the service.
Out of respect for the Second Amendment, Congress should outlaw such charges and require dealers to conduct background checks as a condition of maintaining their licenses. The fee is similar in effect to a poll tax on voting. Both prevent some subset of people who wish to exercise their rights from doing so, often the poorest Americans, who are disproportionately minorities.
And although poll taxes, unlike background checks, were a product of racism, the basic point remains: Individuals should not be required to pay unnecessary fees to exercise a constitutional right.
By making background checks truly universal and free, Congress can please both sides in the gun debate. Lawmakers would keep more criminals from obtaining guns while respecting the Second Amendment.
Adam Winkler is a professor at UCLA School of Law and the author of “Gunfight: The Battle over the Right to Bear Arms in America.” He wrote this for the Los Angeles Times.