What you have suggested is a de facto registry of gun owners, something that I believe may already be a violation of exiting federal law. The Firearm Owners Protection Act of 1986 contains a prohibition on the creation of a registry of firearms or firearm owners.
There is also a valid constitutional question as to whether the federal government even has the authority to impose universal background checks.
The federal government can require that licensed dealer perform background checks because more than 80 years ago, Congress used its authority under the Commerce Clause to limit interstate commerce in firearm to businesses licensed by the government. Since it licenses these businesses, including manufacturers, importers, distributors, and dealers, it can also impose regulations covering how the business is conducted. The Brady Act passed in 1993 imposed a new requirement on dealers that required them to conduct background checks.
Last year, the House approved the Bipartisan Background Check Act of 2019. It was a classic example of congressional overreach and House Democrats were saved from a black eye when the bill didn’t advance in the Senate.
I read the proposed law. I then looked at case law to see if there was an precedent that might allow it to stand. I then requested that a well-known attorney who is an expert on Second Amendment law and has actually won cases in the Supreme Court to give me his opinion on the bill. His answer was very short: the bill was facially unconstitutional.
Congress does not have the power to tell me what I must do if I wish to loan a gun to a friend. Congress does not have the power to regulate commerce occurring entirely within a state. Under the Tenth Amendment to the Constitution, that power is reserved to the states.
The federal government has another problem: It cannot compel a state to enforce a federal law. It also can’t compel a state, county, or municipal official to enforce a federal law.
The state cannot prevent federal officers from enforcing the law within a state, but it is not obliged to offer them any assistance at all.
To give you an idea of the amount of resistance your proposal might face, consider the growth of the Second Amendment Sanctuary movement in just over five months:
Nevada passed a universal background check law last year. There isn’t a single county sheriff in the entire state that will enforce it.
It’s not even about gun rights, the NRA, Gun Owners of America, or any of the other advocacy groups. Without universal gun registration, universal background checks are impossible to enforce; there’s no way to know if a gun changed hands without the approved blessings of the government. So why would a sheriff want to waste time and resources enforcing an unenforceable law?
Registration isn’t just a matter of recalcitrant Republicans. Gun registration in the United States is a dead issue because American gun owners aren’t going to comply. This isn’t theoretical, we know from real-world experience that non-compliance will be on a massive scale.
In 2013, the New York state legislature passed the SAFE Act. One of the requirements of the new law was that owners of certain types of firearms had to register them with the New York State Police by April 2014. At the time, it was estimated that state residents owned somewhere between 250,000 and a million of these guns.
In 2016, a judge compelled the NYSP to release compliance data. About 44,000 guns had been registered. That’s less than 18% of the low-end estimate.
There are more than 80 million American gun owners. They own somewhere between 350 and 400 million guns. There are 3,081 county sheriffs in the U.S. How many of them are going to refuse to enforce registration laws?
When the novel coronavirus forced governments to order lockdowns, curtail police services, and release jail inmates, Americans flocked to gun stores. March gun sales were the highest of any month on record and April sales were a record for the month. In those two months an estimated 4.4 million guns were transferred. From January 1 to April 30, sales totaled over seven million, a 51% increase compared to the first four months of 2019.
Anecdotal evidence suggestions that half or more of these guns were sold to first-time gun buyers. A number of these newbies were dismayed to learn that buying a gun isn’t quite as easy as buying Sudafed. The NICS background check system was overloaded; state background check systems crashed. Decisions that would normally take a few minutes were taking days. In some states, it was virtually impossible to legally buy a gun because the government agencies responsible for issuing permits to purchase were shut down or were operating with reduced staffs.
So just how much appetite do you think there is in America for more complications? Because it doesn’t matter what the politicians think; it doesn’t matter what the media thinks; if the people who own the guns aren’t on board with the idea, it’s going to come crashing down.
Besides, the faith in background checks is misguided. For one thing, they don’t prevent a person from obtaining a gun, they merely prevent some people from buying a gun from a licensed dealer. These people get around this challenge by either having people who can pass the background check buy the gun for them; what’s known as a straw purchase or they get one from the black market or friends and family.
Background checks are also often touted as a measure to reduce the incidence of mass shootings. However, it’s seldom mentioned that 526 people have been murdered and another 1,031 people have been wounded by shooters who passed one or more background checks.
When it is discovered that a person who should have been prohibited from possessing a firearm was able to get one because of missing records, as happened in the incidents at the Emanuel AME Church in Charleston and the Henry Pratt Co. in Aurora, Illinois, law enforcement authorities are supposed to either seize the gun or take steps to verify the gun has been surrendered. Yet this never happens.
The Aurora shooter applied for an Illinois Firearm Owners Identification Card (FOID) to purchase a handgun his felony conviction and prison sentence in another state didn’t show up and the Illinois State Police issued the card. He later applied for a carry permit and this time, his record was discovered. The ISP sent him a letter informing him that his FOID card was revoked and that he was required to turn the gun in to a law enforcement agency. There was never any follow-up; never any verification that the gun had been surrendered; and a few years later, he used that same gun to murder five people.
This wasn’t an isolated case. It turned out that the Illinois State Police virtually never followed up when a FOID was revoked.
You offered what you probably consider to be an acceptable compromise and I really appreciate the thought and effort. The problem is that gun owners as a group aren’t interested in any more compromises. This isn’t surprising since past compromises haven’t worked out well for us.