A serious debate over gun policy is underway in the aftermath of last week’s massacre in Florida, and one focus is the federal background check system ― a system that has existed for 20 years but which, by almost all accounts, isn’t doing enough to deter would-be killers from buying firearms.
In theory, almost everybody in Washington wants to strengthen the National Instant Criminal Background Check System, or NICS, as it’s known. That includes top Republicans, even though they have historically resisted or opposed efforts to control or limit gun access. It even includes President Donald Trump, who on Thursday tweeted support for improving background checks and on Friday said the same thing while answering press questions at the White House.
These vows may be meaningless. Recent history is littered with instances of Republicans dropping support for gun legislation as soon as public interest wanes. As for Trump, his own budget proposal, released earlier this month, proposed cutting funds for the background check system. It’s anybody’s guess whether Trump even understands the promise he has been making over the past few days, let alone whether he intends to keep it.
But if the student-led movement for stronger gun policies doesn’t let up, Trump and his allies may not be able to let go of this idea so easily. They might even decide that the political consequences of inaction are too serious to risk, that some kind of legislation on background checks is necessary.
The question, then, would be what kind of legislation.
On Capitol Hill, the current debate over background checks is focused on two very different proposals. One is an anodyne bill to shore up the existing system by feeding it information in a more timely and consistent fashion. The other is a more sweeping proposal to expand the reach of background checks so they include all sales, not just those that take place through officially licensed dealers.
But there’s another, even more ambitious idea out there ― one that Congress isn’t seriously considering now but that, according to many advocates and experts, could have a bigger impact. It’s a call for requiring would-be gun purchasers to first obtain licenses, which the government would grant only for people who go through a protracted process.
The process could entail any number of steps, but in the most ambitious versions it would include completing a gun safety course, paying registration fees, providing character references, and applying in person to local law enforcement. The goal is to reduce all kinds of firearm violence, including the everyday acts of homicide and suicide that account for the vast majority of this country’s gun deaths.
It might sound like a crazy idea wildly out of step with current practice. It’s not.
A dozen states plus the District of Columbia already have some kind of licensing program in place. There’s good reason to think these systems are having at least a mild impact in those places, and that they’d do a lot more if they existed nationwide. That’s especially true if licensing were part of a broader strategy that included bans on assault-style weapons, temporary restraining orders against gun ownership for people who pose likely threats, and other restrictions.
The Debate Taking Place Is About Background Checks
The existing background check system falls well short of such a licensing requirement. It is simply a mechanism for making sure prospective gun purchasers don’t have past convictions for serious criminal charges or domestic violence, prior judicial findings that the buyer was mentally unfit, or a handful of other conditions that, by law, would make somebody ineligible to own a gun.
But the system is only as good as the information it gets from states and other government agencies ― a weakness that became apparent after last year’s mass shooting at a church in Sutherland Springs, Texas. Years earlier, an Air Force court martial had convicted the killer, Devin Patrick Kelley, on a domestic assault charge. The Air Force failed to forward that information to NICS. If it had, Kelley would not have been able to obtain the guns he used in the massacre ― at least, not without violating the law.
A new bill would seek to fix that problem, by holding federal agencies to higher standards for supplying information and providing states with financial incentives to improve their reporting. The version in the Senate has as its chief sponsors John Cornyn (R-Texas) and Chris Murphy (D-Conn.). The idea generally enjoys bipartisan support, although Democrats are unlikely to go along with concessions on gun policy (like undermining state concealed carry laws) that House Republicans are demanding.
Whatever the bill’s ultimate legislative fate, Murphy himself has made clear that it is not enough. To really reduce gun violence, he says, Congress has to go a lot further ― at the very least, extending background checks to cover those private transactions, many of which take place at gun shows. (That’s why it’s come to be known as the “gun show loophole.”)
To put it plain terms, somebody with a domestic violence conviction, though legally prohibited from owning a firearm, can today get one by going through a private seller online or in person. Exactly how many sales take place through private channels is the subject of some debate. Research suggests it’s anywhere from 20 to 40 percent of the total, which, very roughly, means that at least 6 million sales a year ― and probably quite a few more ― involve buyers who haven’t passed a background check.
Closing the gun show loophole was a major focus of the legislative effort President Barack Obama led in 2013 following the Sandy Hook massacre in Newtown, Connecticut. That effort failed when a bill from Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.) fell six votes short of the 60 it needed to pass that chamber. Murphy has a new bill calling for universal background checks and the idea seems, if anything, more popular than ever. Ninety-seven percent of Americans support it, according to one recent poll. It remains to be seen whether it will get a serious hearing in the Senate, to say nothing of the House.
The Debate Not Taking Place Is About Licensing
Critics of universal background checks note that the system fails to stop many killers, including confessed Florida shooter Nikolas Cruz, who obtained his firearms legally through a licensed dealer near his house. Advocates and experts acknowledge as much. But they say that’s an argument for imposing a licensing system that would subject prospective buyers to a longer, more thorough vetting process ― in a sense, demanding of gun owners something like what the government already demands of automobile owners.
Twelve states plus the District of Columbia have some kind of gun licensing in place, according to the Giffords Law Center to Prevent Gun Violence. The details differ from jurisdiction to jurisdiction, particularly when it comes to the kinds of gun purchases that require licenses, but they mostly include a few common elements: requiring the licensees to take a gun safety course, pay a fee, and wait for some period to get the license. Some states go beyond that. They require prospective buyers to obtain licenses in person, either from police or local officials, or supply fingerprints.
Typically licensing involves a more rigorous background check than the one federal law requires. The most aggressive states, like Massachusetts, require applicants to state their reasons for wanting guns, and give law enforcement officials discretion to deny a license if they believe an applicant poses a threat to public safety, even if nothing in the applicant’s history violates a specific prohibition. Applicants always have the right to appeal such denials and, ultimately, the vast majority of people applying for licenses get them.
Does licensing make a difference? Studies of several states by Daniel Webster, a widely cited professor at the Johns Hopkins Bloomberg School of Public Health, concluded that taking away licensing (as Missouri did) increases gun violence, while adding licensing (as Connecticut and Maryland did) reduces it. Webster told HuffPost he thinks “you could have much lower death rates” if licensing existed in every state alongside bans on high-capacity magazines and other firearm regulations. And he is by no means alone. In a survey of experts The New York Times conducted a year ago, licensing requirements were among the options they felt most likely to reduce firearm deaths.
The research on licensing has both its limits and its skeptics. (Conservative writer Robert VerBruggen, for example, has criticized Webster's Connecticut study.) When looking at the U.S., scholars must extrapolate from a relatively small set of states that have modified their laws in the last few years. The data is limited, and funding for more labor-intensive work, like sifting through police records on paper, is usually hard to find.
Still, anecdotal evidence, like interviews with criminals who say guns have become harder to get, supports the conclusion that licensing ultimately reduces violence. And then there’s all the research comparing the U.S. and other countries, showing pretty conclusively, as Vox’s German Lopez has argued, that by restricting access to guns, those countries have reduced gun violence and gun deaths.
Licensing alone wouldn’t produce such results here, especially with something like 300 million guns in circulation already. Even so, there’s good reason to believe that licensing in every state would ultimately save lives. Of course, the process for obtaining guns would also become more arduous. The NRA and its allies might not find that possibility tolerable, but the rest of the country might.