Would Universal Background Checks Create National Gun Registry?

Gun Show, Florida
Ryan Gibbs with Southern Munitions discusses the different types of AR-15- style guns on display at the his booth during the Tampa Gun Show Saturday, February 24, 2018, at the State Fairgrounds in Tampa, Florida. Photo credit: © Chris Urso/Tampa Bay Times via ZUMA Wire
Reading Time: 7 minutes

Universal background checks for gun purchases are one of the more popular gun control measures, with 97 percent of the public in favor of them. Acting on this popularity, the Democratic-controlled House passed a bill that would establish them nationally.

That bill, HR 8, the Bipartisan Background Checks Act of 2019, passed 240–190, with many Republicans supporting it.

To someone unfamiliar with gun politics in the US, HR 8 would seem to be a measure that, because of seemingly wide bipartisan support, would easily become law. Yet the bill continues to languish in the Republican-controlled Senate, where it will likely die. (Even if it were to pass the Senate, it would likely face a presidential veto.)

Why is this? What is it about this bill that bothers gun rights advocates?

To understand, it’s necessary to look more closely at the mechanics of the proposed universal background check measure and then examine a common objection to it — that it would establish a de facto national gun registry.

Private Sales: Closing the So-Called Gun Show Loophole

HR 8 is an attempt to widen the scope of the federal background check requirements that were mandated by the 1993 Brady Handgun Violence Prevention Act, or the Brady law. This law requires that anyone attempting to purchase a firearm from a federally licensed gun dealer first answer 16 questions about “criminal and mental health history, dishonorable military discharges, unlawful immigration status, an open warrant, a documented history of domestic violence, and drug use.”

These questions are printed on a standard form, Form 4473, issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. This information is then fed into the FBI’s National Instant Criminal Background Check System (NICS), which, in 98 percent of cases, produces an instantaneous answer.

NICS checks this information against three big databases, searching for evidence of criminal conviction, restraining or protective orders, involuntary psychiatric confinement, and state or local orders banning gun ownership. Much of this data is supplied by state agencies voluntarily — although sometimes these agencies make mistakes.

NICS Logo

Photo credit: FBI and FBI (PDF)

But background checks mandated by the Brady law only apply to gun purchases made through federally licensed gun dealers, and this is not the only way that guns are obtained. This is where the so-called gun show loophole comes in, and this is what universal background checks are intended to address.

First, the gun show loophole is neither specific to gun shows nor a loophole, but it has become a common way of referring to private gun transactions (i.e., when a firearm is sold or given from one person to another). It’s called the gun show loophole because transactions like this can and do take place between individuals at gun shows. But it’s misleading because it implies that all transactions at gun shows bypass background checks, which is not the case: Commercial gun dealers at these shows are federally licensed, and purchases made from them must be run through the background check process described above.

Gun shows, however, provide a venue where private gun sellers and buyers can find each other and buy and sell guns. Hence the term “gun show loophole.” As long as both buyer and seller are residents of the same state, and as long as the buyer has no reason to believe the seller is prohibited from owning firearms, a private gun transaction can be conducted with no background check and no paper trail.

But a gun show isn’t necessary for such private transactions to take place. In fact, they can occur anywhere, and the internet has made this even easier. These days, private gun sellers and buyers don’t need a physical venue to find a match: Like lonely singles, they can use online services, such as this one, to find what they want.

To recap, background checks are currently not required at the federal level for any of these private gun transactions; HR 8 would change that. It would require that a private buyer and seller first go to a federally licensed gun dealer and fill out Form 4473. The dealer could send send the Form 4473 information to NICS.

Some states already require this. Currently, 20 states as well as the District of Columbia have background check measures that cover at least some private sales, but HR 8 would cover most of them — making exceptions for obtaining a gun through inheritance, as a gift from a family member, or on a temporary loan from a friend or relative. Significantly, the bill explicitly does not authorize the creation of a national database for any of the information obtained through these background checks.

A De Facto Gun Registry?

Despite HR 8 containing this language, some gun rights advocates cite the creation of such a registry as a primary concern with the bill. Leaving aside for a moment why this might concern them, consider whether — despite the explicit language of the bill — the creation of such a registry might, in fact, be possible.

The Gun Owners of America, a gun rights group that positions itself further to the right than the National Rifle Association, is one group that makes this argument.

Michael Hammond, the GOA’s general legislative counsel, told WhoWhatWhy that HR 8, in his opinion, sets the stage for national gun registration, regardless of what the bill says. According to Hammond, it starts with Form 4473, every one of which is run through NICS.

Yet because of the Brady law, as well as Department of Justice rules that interpret this law, the FBI can’t retain this data, but “must destroy all identifying information on allowed transactions prior to the start of the next NICS operational day.”

But those paper forms live on after the destruction of the NICS data, and they remain in the possession of the federally licensed gun dealer where the forms were filled out. According to Hammond, the GOA has received reports from licensed gun dealers who say that ATF agents, during routine annual inspections, have scanned these forms in the gun stores.

This scanning, if done systematically, Hammond argued, would provide the basis for a de facto gun registry, especially if digitized and made searchable.

Yet it is unlikely that the ATF is secretly creating a searchable database. First of all, to do so would violate current federal law, namely the above-mentioned Firearm Owners Protection Act of 1986, which prohibits “any system of registration of firearms, firearms owners, or firearms transactions or disposition” from being established. This 1986 law is intimately familiar to Hammond, since he was one of the legislative aides who helped write it (Hammond worked at the time for Republican Sen. James McClure of Idaho).

Moreover, the ATF already bends over backward to process older gun data without creating a searchable database. Older Form 4473 filings are constantly being shipped by gun dealers that have gone out of business to an ATF center in Martinsburg, WV, called the National Tracing Center (NTC). That center receives about 2 million documents of this kind per month.

The almost cartoonishly comical filing and retrieval system used by the NTC — which employs about 140 workers who spend their days scanning through microfilmed 4473s, as well as another team of workers who specialize in reverse-engineering Microsoft Excel spreadsheets into PDFs and then into non-searchable TIFFs — has to be seen to be believed. All of this ensures that there is no centralized, searchable database, and that is by legislative design (again, according to the Firearm Owners Protection Act of 1986).

Gun Show, Virginia

A customer handles a scoped assault rifle at gun show in ichmond, Virginia, in 2018. Photo credit: VCU Capital News Service / Flickr (CC BY-NC 2.0)

It’s partly because of this 1986 provision, as well as the explicit language in HR 8 barring the creation of a gun registry, that leads other gun rights advocates, such as John Whitehead of the Rutherford Institute (basically the conservative cousin of the American Civil Liberties Union), to not worry about one being created any time soon.

“While the danger may exist that this kind of database might be created, it does not appear that HR 8 significantly increases that danger,” Whitehead wrote in an email to WhoWhatWhy.

Yet Whitehead agreed with Hammond’s argument that the existence of a registry could present a problem for gun owners. “If there is a centralized system with information relating to firearm possession,” he wrote, “it becomes much easier for governments at all levels to seize firearms when it suits them. A centralized registry allows not only federal law enforcement, but state and local as well, to quickly and efficiently deprive lawful owners of their guns if they feel there is some emergency justifying it.”

And it’s this last part — confiscation — that really worries gun rights advocates.

“There are a few states that have had registered guns that have not, in the end, moved toward confiscating the guns,” Hammond said. But the existence of a registry, even a de facto one, makes confiscation much simpler, he said. If future legislation calls for confiscation of, for instance, assault rifles, “then they have a handy list of the doors to which they need to send the SWAT teams,” he said.

Regardless of whether one agrees with Hammond’s analysis or not, the concern about confiscation is common among gun rights advocates, and is not likely to disappear in the near future. In fact, the recent mass shooting in New Zealand, which prompted swift action on gun control by that country’s government — including the banning and buybacks of assault rifles — is exactly what gun rights advocates in the US now point to as an example of what they most fear.

This concern about gun registries and fears of future gun confiscation, especially of assault rifles, will continue to shape gun politics in the US for the foreseeable future, especially while Republicans control the Senate and the White House.


Related front page panorama photo credit: Adapted by WhoWhatWhy from Mobilus In Mobili / Flickr (CC BY-SA 2.0), GOA / Wikimedia, and NRA / Wikimedia.

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6 responses to “Would Universal Background Checks Create National Gun Registry?”

  1. Harun Krasna says:

    Sometimes it seems like half the country believes one’s inability to buy a handgun on the spot at Walmart is indicative of encroaching government capture by the Illuminati, and the other half wants to be able to ban entire classes of guns based on whether or not one gun in said class looks scary. The former searches constantly for ways to functionally skirt existing gun laws via bits of tech like bump stocks and plastic enclosures, which exist on the DL until they don’t; the latter indulges in perennial hysteria every time there’s a shooting committed with anything that doesn’t look like pep-pep’s hunting rifle.

    I don’t hear many wide or serious discussions of raising the owning/purchasing age for anything that fires a bullet to 21, in spite of how quickly that could suppress or disable one of the most persistent & tragic of these categories of shootings …

  2. Larry Brickey says:

    I very much doubt the 97% figure. How many took part in the survey? Maybe city folks are high on control but rural citizens are not.

  3. Prester Kahn says:

    You have several inaccuracies in the article.
    First, only the federal government is prohibited from creating a database of gun owners, yet the States have forms that go to the State. The inference that a registry in this country only raises the risk of confiscation a minor amount does not acknowledge that NYC has used its registration lists to confiscate formerly allowable firearms that it decides are no longer allowed. New Orleans after Katrina went around and confiscated firearms from regular residents, too.
    Second, the “Universal Background Check” in the bill does not allow people to temporarily borrow a firearm except under extremely limited conditions without going to a federally licensed dealer and filling out all of the paperwork – which then has to be done again when the gun is returned to the owner, thus revealing non sold firearms to the State not to mention two rounds of fees paid to the dealer to process the transfers.
    Third, and not mentioned in the article, is the fact that only law-abiding citizens will comply with this (or even current) firearms laws. The firearms that we really want to remove from circulation – those used by criminals – will never hit the system.

  4. Gene Ralno says:

    In view of the socialist gun confiscation hysteria, seems time to clarify some points for those with little firearm exposure. Many don’t know the difference between a background check, a license to carry, a firearm permit and a registry. Virtually all purchases are authorized by the National Instant Background Check System (NICS), managed by the FBI. Democrats have been clamoring for “universal” background checks to include current exceptions. They want universal background checks because they’re impossible to verify without a universal federal firearm registry.

    The trick is to require something impossible, thereby making it necessary to create a registry of firearms, all 450 million of them. What they want are background checks on transfers between mothers, fathers, brothers, sisters, sons, daughters, uncles, cousins, friends, and neighbors. They’re after inheritances, bequeathals, gifts and sales of inherited collections, however small they are. A transfer includes selling, giving, lending, returning, renting, or simply handing a firearm to another person or any action that causes a firearm to be transferred from one law-abiding person to another law-abiding person.

    Those are the voters they hope to transform into dependents on the government. Socialists don’t give a hoot about criminals who don’t acquire firearms legally and don’t vote. They need universal registration because it fundamentally transforms 120 million owners into dependents. Once they know who the owners are, they’ll choose which of them are allowed to be licensed. It’s the consummate entitlement. The democrat party cannot survive without more than half the nation being dependent on the government. Socialists trade entitlements for votes. It’s the heart of their strategy.

  5. Geoff says:

    FOPA (Firearm Owners Protection Act) prohibits the States and Federal Government from having a registry of firearms and the owners.
    The Act also forbade the U.S. Government agency from keeping a registry directly linking non-National Firearms Act firearms to their owners, the specific language of this law Federal Law 18 U.S.C. 926 being:

    No such rule or regulation prescribed [by the Attorney General] after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary’s authority to inquire into the disposition of any firearm in the course of a criminal investigation.

  6. Wes Bielinski says:

    Illinois has had “Universal Background checks” for years and it hasn’t helped reduce shootings in Chicago. Also the sales of Assault Rifles (which are capable of fully automatic/burst fire) have been heavily regulated since 1934 and sales of NEW Assault Rifles have been banned since 1986. You’re INTENTIONALLY confusing Assault Rifles with AR-15’s. AR stands for Armalite Rifle, which is the company that originally designed the weapon. It fires ONLY one shot per pull of the trigger.