Expensive Toilet Paper
New legislation is useless until we're enforcing current law.
No one knows how current gun laws might perform because these laws are not being properly enforced.
The cornerstone of existing gun law in the United States sees action taken in less than 0.05% of incidents even with direct evidence of a known perpetrator caught red-handed.
Until enforcement of existing laws is addressed, all new proposals and legislation are worth less than the paper they’re printed on.
The cornerstone of U.S. federal gun law is the Gun Control Act (1968) - 18 U.S.C. 922(g) - prohibiting convicted felons, fugitives from justice, those who have been formally committed to a mental institution, and others from possessing guns. The penalty for violating this statute is punishable by up to 10 years imprisonment.
A person buying a firearm from a dealer holding a Federal Firearms License fills out ATF Form 4473 (Firearm Transaction Record), a seven-page form that records the buyer’s information and asks if they fall into one of the prohibited categories. Any single prohibited category makes the purchase illegal and the responses are checked against federal records to determine if the applicant was truthful.
The Brady Handgun Violence Prevention Act (1993) requires gun dealers to consult the FBI’s National Instant Criminal Background Check System (NICS) for ALL firearm purchases and transactions (not just handguns, despite the name) to confirm if a buyer filling out Form 4473 falls into any of the prohibited categories before transferring a firearm. This system is a Universal Background Check, applies to all transactions made by firearm dealers, and has been in continuous use since 1993.
Providing false information on Form 4473 is two different crimes. First, it is unlawful for a person to “make any false or fictitious oral or written statement” to an FFL dealer “with respect to any fact material to the lawfulness of the sale.” Doing so is punishable by up to 10 years in prison. Second, it is also a crime to “knowingly make any false statement or representation with respect to the information required by this chapter to be kept in the records of [an FFL].” Violators face up to 5 years imprisonment for that.
Here’s a sample of questions on Form 4473 (Firearm Transaction Record) that is then verified by the FFL dealer in the NICS check:
21. Answer the following questions by checking or marking either the “yes” or “no” box to the right of the questions:
a. Are you the actual transferee/buyer of all of the firearm(s) listed on this form and any continuation sheet(s) (ATF Form 5300.9A)? Warning: You are not the actual transferee/buyer if you are acquiring any of the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer any of the firearm(s) to you. Exception: If you are only picking up a repaired firearm(s) for another person, you are not required to answer 21.a. and may proceed to question 21.b.
b. Do you intend to sell or otherwise dispose of any firearm listed on this form and any continuation sheet(s) in furtherance of any felony or other offense punishable by imprisonment for a term of more than one year, a Federal crime of terrorism, or a drug trafficking offense?
c. Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year, or are you a current member of the military who has been charged with violation(s) of the Uniform Code of Military Justice and whose charge(s) have been referred to a general court-martial?
d. Have you ever been convicted in any court, including a military court, of a felony, or any other crime for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?
e. Are you a fugitive from justice?
g. Have you ever been adjudicated as a mental defective OR have you ever been committed to a mental institution?
h. Have you ever been discharged from the Armed Forces under dishonorable conditions?
i. Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner?
j. Have you ever been convicted in any court of a misdemeanor crime of domestic violence, or are you or have you ever been a member of the military and been convicted of a crime that included, as an element, the use of force against a person as identified in the instructions?
FFLs are required by law to keep all completed forms on file permanently and they are subject to inspection at any time.
However, reviewing prosecution data of those caught putting false information on Form 4473 indicates these statutes are largely ignored. In September 2016, the Department of Justice Office of Inspector General published Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System. This audit reported the FBI processed more than 51 million NICS transactions from 2008 to 2014, denying 556,496 of those transactions. According to the 2020-2021 NICS Operational Report, in 2020, there were nearly 93,000 denials of individuals who met the federal definition of a convicted felon. Despite this, the ATF formally referred only 509 of these NICS denial cases to the United States Attorney's Offices for possible prosecution. The USAOs accepted for consideration the prosecution 254 people - less than 32 per year.
That is less than a 1-in-2,000 chance of being prosecuted as the result of a NICS denial, even with documentation (the signed 4473) of a known perpetrator (the name and identification information of the applicant) in federal custody. The paper also noted, “the odds of being charged for lying on this form are virtually nonexistent.”
Note, many individuals denied by NICS should not be prosecuted as NICS data can be imprecise. Each year, thousands of individuals have their NICS denial overturned on appeal. In 2020 alone, nearly 7,000 people flagged on a NICS successfully had it appealed due to bad data in NICS. However, this is not the majority of those 556,496 NICS denials.
This longstanding indifference toward enforcing existing gun laws goes straight to the top. Following the 2012 shooting at a school in Newtown, Connecticut, then-President Barack Obama tasked then-Vice President Joe Biden with leading his legislative effort. When asked about this during a White House meeting, Biden responded, “[R]regarding the lack of prosecutions on lying on Form 4473s, we simply don’t have the time or manpower to prosecute everybody who lies on a form, that checks a wrong box, that answers a question inaccurately.”
All this being the case, how well could any new legislation be enforced?
Universal Background Checks are clamored for regularly. The truth is, any Universal Background Check would be little more than an extension of our existing National Instant Criminal Background Check System. Given that less than 0.05% (1 in 2,000) of people caught by the existing NICS are investigated or prosecuted, the only thing an extended background check system will do is catch even more people who will ultimately be let go because we simply don’t have the time or manpower to prosecute the ones we’re already catching as it is.
Consider the value of gun control measures compared to actual firearm homicide rates. Giffords offers their Gun Law Scorecard. Every year, Giffords Law Center grades each state on its gun laws giving a rating to each state based on its gun control measures. In the chart below, states with the highest to lowest rating from the Giffords Law Center (most to least gun control measures) are grouped from left to right as shown by the gray downward slope. The bar chart shows each state’s firearm homicide rate. Washington D.C. has the highest rating from Giffords and the highest firearm homicide rate in the United States, while Utah and Wyoming have negligible firearm homicide rates with almost no firearm restrictions (a “bad” Giffords rating.)
Dishonest organizations and people can cherry-pick states as “proof” that gun control schemes decrease or increase homicide rates but the truth is there is no causal or corollary relationship to this at all. There are states with strict gun control measures in place with both high and low firearm homicide rates, and there are states with limited or no gun control measures in place with both high and low firearm homicide rates.
When the ATF is under an acting Director for years and the budget is held hostage annually this is what happens. Departments don’t exist in a vacuum. Political pressure to soft pedal enforcement needs to stop.