Guns Acquired Without Background Checks

The Line: 40 percent of guns are purchased without a background check.

The Party: Democratic gun-control advocates

Editor’s note: This is one of an occasional series called “Party Lines” that will highlight misleading talking points by both parties.

After the December mass shooting at an elementary school in Newtown, Conn., several Democrats advocating for stricter gun-control laws — including a law requiring universal background checks for gun purchases — took to using this talking point to support their case. In a Jan. 16 speech on gun violence, President Barack Obama, for example, claimed that “as many as 40 percent of all gun purchases are conducted without a background check.” The president’s gun-control plan, “Now Is The Time,” also says that “studies estimate that nearly 40 percent of all gun sales are made by private sellers who are exempt from this requirement.”

But that figure is based on an analysis of a nearly two-decade-old survey of less than 300 people that essentially asked participants whether they thought the guns they had acquired — and not necessarily purchased — came from a federally licensed dealer. And one of the authors of the report often cited as a source for the claim — Philip Cook of Duke University — told our friends at Politifact.com that he has “no idea” whether the “very old number” applies today or not. Even Vice President Joe Biden acknowledged that the statistic may not be accurate in a speech at a mayoral conference on Jan. 17. Biden prefaced his claim that “about 40 percent of the people who buy guns today do so outside the … background check system” by saying that “because of the lack of the ability of federal agencies to be able to even keep records, we can’t say with absolute certainty what I’m about to say is correct.”

The basis for the claim is a 1997 report from professors Cook and Jens Ludwig for the National Institute of Justice. The authors concluded that “approximately 60 percent of gun acquisitions involved [federally licensed firearms dealers] and hence were subject to Federal regulations on such matters as out-of-State sales, criminal history checks, and record keeping.” They similarly concluded in a more detailed report published earlier that year that “approximately 60 to 70 percent of gun acquisitions occur in the primary market” from a licensed dealer.

Both of those statements were based on a single 1994 telephone survey on private gun ownership conducted by the Police Foundation and funded by the Justice Department. The survey asked the 251 participants who had acquired guns in the previous two years, “Was the person you acquired this gun from a licensed firearm dealer?” The answer choices were “yes,” “probably was/think so,” “probably not,” “no/definitely not,” “don’t know” and refuse to report. Cook and Ludwig found that 64.3 percent of those surveyed (Table 3.14) said that they had purchased or traded for a gun that came from a licensed dealer or “probably” did. The 40 percent figure comes from assuming that the remaining 35.7 percent — which has been rounded up — did not.

But with the exception of Biden, hardly anyone using the figure ever cautions that it may not be accurate, or, at the very least, that it was based on a survey of just a few hundred people in 1994, in which participants may have guessed whether they had acquired a gun that came from a licensed dealer. Instead, the number is quite often stated as fact when no one can say for certain.

— D’Angelo Gore

Below is a list of some Democrats who have used the 40 percent figure:

House Gun Violence Prevention Task Force, Feb. 7: Individuals purchasing a firearm have the option of going to a federal firearms licensee (FFL) where a background check will be required, or purchasing a firearm from a private seller without undergoing a check. This alternative has allowed an estimated 6.6 million guns, or about 40 percent of all gun purchases, to be sold each year without the benefit of a federal background check. (Source: “It’s Time to Act” gun-violence prevention plan.)

Rep. John Conyers, Jan. 24: Non-licensed sellers do not have to perform checks, and it’s estimated that 40% of guns are sold by private sellers without checks. This is unacceptable, and is a major drive of gun violence in this country. (Source: Press release.)

Sen. Kirsten Gillibrand, Jan. 24: Today, about 40 percent of guns are purchased without a background check. (Source: MSNBC Transcript.)

Vice President Biden, Jan. 17: But because of the lack of the ability of federal agencies to be able to even keep records, we’re not — we can’t say with absolute certainty what I’m about to say is correct. But the consensus is about 40 percent of the people who buy guns today do so outside the NICS system, outside the background check system. (Source: Remarks at 81st Winter Meeting of the U.S. Conference of Mayors.)

President Obama, Jan. 16: But it’s hard to enforce that law when as many as 40 percent of all gun purchases are conducted without a background check. (Source: Remarks on gun violence.)

“Now Is The Time,” Jan. 16: Right now, federally licensed firearms dealers are required to run background checks on those buying guns, but studies estimate that nearly 40 percent of all gun sales are made by private sellers who are exempt from this requirement. (Source: President Obama’s gun-violence prevention plan.)

Sen. Jack Reed, Jan. 16: According to the Brady Campaign, about 40 percent of gun sales happen with no background checks. We can do better and must do better. (Source: Press release.)

Rep. Marcia Fudge, Jan. 14: Under current federal law, background checks are only required for gun sales at licensed dealers. According to Mayors Against Illegal Guns, approximately 6.6 million guns are sold each year in America by unlicensed private sellers. That translates to 40 percent of all U.S. gun sales. (Source: Congressional Record.)

Chicago Mayor Rahm Emanuel, Jan. 14: When you got 40 percent of the guns [unaccounted for] that’s not a loophole; that’s an exemption. (Source: Politico article.)

Sens. Richard Blumenthal and Christopher Murphy, Jan. 11: Further, an estimated 40 percent of gun purchases are completed without any NICS background check due to loopholes that exempt private sales, including those at gun shows. (Source: Joint press release.)

Rep. David Cicilline, Dec. 19, 2012: The time for talking is over. Now we must act: banning assault weapons and high-capacity assault clips, fixing our criminal background check system, and closing loopholes that allow 40 percent of gun sales to go forward without background checks. (Source: Congressional Record.)

Sen. Chris Coons, Dec. 19: Today, an estimated 40 percent of all gun sales–some six million weapons a year–are sold by unlicensed dealers who aren’t required to conduct any criminal background check under federal law. (Source: Congressional Record.)

Congressional Progressive Caucus: Whereas only federally licensed gun dealers are required by law to run background checks yet 40 percent of gun sales – six million guns a year – are sold on the secondary market through unlicensed dealers and are not subject to background checks, enabling the acquisition of guns by criminals, perpetrators of domestic violence, minors, substance abusers, and those with severe mental illnesses that are determined by a healthcare professional to be a danger to themselves or others. (Source: Resolution on Preventing Gun Violence website.)

Rep. Niki Tsongas: According to Mayors Against Illegal Guns, an estimated 40% of gun sales in 2012 were made through private purchasers, and roughly 6.6 million guns were sold without any background check. (Source: Gun-violence prevention website.)

Rep. Frank Pallone: Because of a loophole, buyers may purchase firearms at gunshows, online or person-to-person from unlicensed gun sellers without going through background checks. Currently, nearly 6.5 million guns are sold each year in the U.S. by unlicensed “private sellers,” meaning between 40% and 50% of gun sales may take place with no background check for the buyer. (Source: Gun-violence prevention website.)

Sen. Brian Schatz, April 30, 2014, campaign ad: Over 300 million guns in America – yet as President Obama said, as many as 40 percent of all gun purchases are conducted without a background check. But the two most important reasons I’m fighting for sensible gun safety laws: our kids, Tyler and Mia. (Source: Schatz campaign ad, “Two Reasons.”)