Private Sales Restrictions and Gun Registration

Background

The National Instant Criminal Background Check System (NICS), which became operational in 1998, verifies that a person seeking to buy a firearm from a gun dealer is not prohibited from doing so by federal or state law.¹ The National Rifle Association supported its establishment.²  Gun control supporters opposed NICS, preferring to require a gun purchaser to wait several days after stating the desire to buy a gun, before receiving it from a firearm dealer.³

Today, gun control activists are trying to expand this system to all firearm transfers, under the banner of “universal” background checks. However, no background check system will ever be truly “universal” because criminals will not submit themselves to the system. Therefore, the NRA does not support these proposals and is not working to implement this type of legislation.  The NRA opposes, and will continue to oppose, private sales bans and registration schemes.

Federal and state restrictions on sales, trades, gifts or other transfers of firearms include:

• Anyone engaged in the business of buying and selling firearms for profit must be federally licensed as a firearm dealer (FFL). A dealer must maintain a record of every firearm received from, or transferred to, another person or dealer.
• Anyone who purchases a firearm from a dealer must pass a NICS check.
• It is against the law for anyone to transfer a firearm or ammunition to anyone known or believed to be prohibited from possessing firearms or ammunition.
• It is against the law (with rare exceptions) for anyone to transfer a handgun to a non-dealer who resides in another state.
• It is against the law for a non-dealer to transfer any firearm to a non-dealer who resides in another state.
• Anyone who acquires a firearm from a dealer is required to sign a federal Form 4473, stating under penalty of law that he or she is the actual buyer of the firearm. This is particularly relevant to the question of straw purchasers⁴—persons who can pass NICS checks, and thereupon buy firearms for prohibited persons—discussed below.
• Dealers are prohibited from selling handguns to persons under age 21, and selling rifles or shotguns to persons under age 18. It is illegal for anyone to provide a handgun to a juvenile (person under age 18), and juveniles are prohibited from possessing handguns, with limited exceptions.

Where do criminals get guns? Theft, black market transactions, and straw purchases.

• In 1985, the Department of Justice reported that only about one in five convicted felons obtained guns through legal channels such as retail stores.⁵
• In 1991, the Bureau of Alcohol, Tobacco and Firearms reported that 37% of armed career criminals obtained firearms from street sales, 34% from criminal acts and associates, 8% from relatives, and only 7% from dealers and 6% from flea markets and gun shows.⁶
• More recently, a Bureau of Justice Statistics survey of state prison inmates convicted of firearm crimes found that 79 percent acquired their firearms from “street/illegal sources” or “friends or family.” This includes theft of firearms, black market purchases of stolen firearms, and straw purchases. The survey also found that 12 percent obtained their firearms from firearm dealers (gun stores, pawn shops), while only 1.7 percent obtained firearms from anyone (dealer or non-dealer) at a gun show or flea market.⁷
• The FBI’s National Crime Information Center stolen firearm file contained over 2 million reports as of March 1995, and an annual average of 232,400 firearms were stolen between 2005 and 2010.⁸
• 46.3% of firearms traced by the BATFE in relation to firearm trafficking investigations originate with straw purchasers.⁹

Where do law-abiding gun owners acquire firearms?

While the studies mentioned above dealt with where criminals get guns, a survey of gun owners generally, conducted for the Police Foundation and often misconstrued by gun control supporters, concluded:

The predominant sources of guns, unsurprisingly, were stores (60 percent). Other important sources included family members and acquaintances.¹⁰

Of course, stores (dealers) are required to conduct NICS checks already, and people are likely to know whether family members and acquaintances are prohibited from possessing firearms.

Furthermore, only four percent of those surveyed acquired guns from dealers and non-dealers at gun shows and flea markets, and three percent did so “through the mail” (which, as the study noted, requires a NICS check through a dealer). Acquisitions from strangers are the exception, not the rule.

Would prohibiting private sales reduce crime?

As noted above, most criminals obtain firearms by theft or black market transactions, or from straw purchasers. 

California prohibited private sales of handguns in 1991 and rifles and shotguns in 1994, along with imposing mandatory handgun registration, and rifle and shotgun sale recordation. But the sharp increase in crime that took place prior to those laws, and the return of the crime rate to pre-surge levels, concurrent with the imposition of those laws, was accounted for mostly by juveniles, who are already prohibited from buying or possessing handguns. According to the California Department of Justice:

Between 1986 and 1999 the crime rate increased (peaking in 1991 nationally and in 1992 in California) and then decreased. The increased crime rate was largely due to the crack cocaine epidemic, while the subsequent decrease was largely related to the decline in the use of crack. The use of handguns by juveniles and youth (increasing then decreasing) accounted for most of the changes in the rate of violent crime. Violent crime by adults over 30 years of age and property crime by individuals of all ages did not go through this cycle of increase and decrease, and generally decreased over the entire period.¹¹

What do gun control supporters say about private sales?

Based upon the Police Foundation survey, the Brady Campaign claims “40% of all gun sales . . . take place without background checks, not only at gun shows, but also with the added anonymity of the internet.”¹²

However, the survey—which was of gun owners generally, not of armed criminals—found that only four percent of gun owners acquired their guns from gun shows and flea markets, from dealers and private sellers combined. 

Furthermore, the Brady Campaign’s claim about the “anonymity of the internet” is false. A dealer is prohibited from transferring a firearm to a buyer who is not a dealer, unless the buyer appears in person and presents ID, for purposes of signing the Form 4473 and running the mandatory NICS check.

Additionally, while anyone can advertise a gun on the internet, a seller who is not a dealer is prohibited from selling a firearm to a resident of another state without going through a dealer, and cannot mail or ship a firearm to another person other than a dealer. As the survey noted, “The 3 percent of respondents who indicated that they obtained guns ‘through the mail’ (which is illegal for all but FFLs) may have misremembered or may have referred to a mail-order purchase arranged through an FFL.”

Do gun control supporters have an ulterior motive? 

Is it reasonable to conclude that gun control supporters believe that subjecting all firearm sales to NICS is a necessary step in the direction of gun registration? And, if so, that they see registration as a prerequisite to the confiscation or some or all guns?

In 1976, the chairman of the National Council to Control Handguns—later renamed Handgun Control, Inc. and now known as the Brady Campaign—said:

The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition—except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors—totally illegal.¹³

Currently, the FBI is not permitted to retain records on persons who pass NICS checks. However, in 2009, Sen. Frank Lautenberg (D-N.J.) introduced legislation, co-sponsored by handgun and “assault weapon” ban advocate Sen. Dianne Feinstein (D-Calif.), proposing that the FBI retain such records for 180 days.¹⁴ In 1995, Feinstein said about “assault weapons,” “If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them, Mr. and Mrs. America turn them all in, I would have done it.¹⁵ And in 2012, she said that she might introduce legislation requiring owners of “assault weapons” to turn them over to the government within the framework of a “buy-back.”¹⁶

Notes:

1. Under federal law, for example, persons prohibited from possessing firearms or ammunition include felons, fugitives, persons with disqualifying mental health histories, illegal drug users and addicts, illegal aliens, persons dishonorably discharged from the armed forces, persons who have renounced U.S. citizenship, persons convicted of domestic violence misdemeanors, and persons under certain kinds of domestic violence-related restraining orders.

2. NRA supported instant check bills introduced by then-Rep. Bill McCollum (R-Fla.) in 1988, Rep. Harley O. Staggers (D-W.Va.) in 1989, and the amendment to the 1993 Brady Act which mandated NICS’ establishment.

3. The Brady Campaign, then known as Handgun Control, Inc., preferred a “waiting period” or “cooling off period,” to prevent “crimes of passion.” Compare with gun control supporters’ demand, after the terrible crime of Dec. 14, 2012 in Newtown, Connecticut, that Congress and state legislatures rush into effect a broad array of gun control restrictions—most of which had absolutely no relevance to the crime—before they could be evaluated by the public.

4. The problem of straw purchasers was highlighted by the BATFE’s “Operation Fast and Furious,” which allowed such purchasers to acquire firearms to be smuggled across the Mexican border for furtherance to drug cartels.
5. “Few criminals get guns through legal channels,” The Spokesman-Review, 10/14/85.

6. BATF, “Protecting America: The Effectiveness of the Federal Armed Career Criminal Statute,” 3/92.

7. Caroline Wolf Harlow, “Firearm Use by Offenders,” Bureau of Justice Statistics, (11/01, 189369).

8. Marianne W. Zawitz, “Guns Used in Crime,” Bureau of Justice Statistics, (7/95, NCJ-148201) and Lynn Langton, “Firearms Stolen during Household Burglaries and Other Property Crimes 2005-2010,” Bureau of Justice Statistics, 11/12. See also “Guns in America: A National Survey of Private Ownership and Use of Firearms,” 5/97.

9. BATF, Following the Gun: Enforcing Federal Laws Against Firearms Traffickers,” 6/2000.

10. NIJ, “Guns in America: A National Survey of Private Ownership and Use of Firearms,” 5/97.

11. Leonard A. Marowitz, “Why Did the Crime Rate Decrease Through 1999,?” California Criminal Justice Statistics Center, California Department of Justice, Dec. 2000.

12. Press release, “Brady Campaign Releases Policy Recommendation Made to White House Task Force,” 1/11/13. 13. Nelson T. “Pete” Shields, in Richard Harris, “A Reporter At Large: Handguns,” The New Yorker, 7/26/76.
14. S. 2820, euphemistically titled “The Protect Act.”

15. CBS 60 Minutes, 12/5/95.
16. Press conference, “Democratic Senators Respond to NRA,” C-Span, at 13:10 in the timeline, 12/21/12.