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.