After the 2018 mass shooting at a high school in Parkland, Florida, the House passed two gun control measures: one extending background checks to private sales and the other extending the time limit to conduct background checks on gun purchasers.
Both measures stalled in the Republican-controlled Senate, where then-Majority Leader Mitch McConnell never brought them up for a vote.
Now, with Democrats controlling both chambers of Congress and the presidency, the measures have again passed the House. This time, Senate Majority Leader Chuck Schumer vows that the Senate will vote on the bills.
As the bills made their way through the House, politicians have made many of the same misleading arguments we heard in 2019. Here, we’ll explain what each of the two bills would do, and some of the spin coming from both sides.
H.R. 8: The Bipartisan Background Checks Act
Ever since the Brady Handgun Violence Prevention Act was passed in 1993, the federal government has required all guns purchased from a licensed dealer to include a background check. Five years later, the U.S. launched the National Instant Criminal Background Check System, or NICS, an electronic system that verifies buyers do not have a criminal record or mental health issue that makes them ineligible to purchase or own firearms.
According to the FBI, NICS has been used to perform more than 300 million background checks. And those checks have resulted in more than 3 million denials, according to the Department of Justice.
But not all gun sales or transfers are subject to background checks. In some states, background checks are not required for private sales, including some sales on the internet or at gun shows.
According to a 2015 national survey published in the Annals of Internal Medicine, roughly 22% of gun owners reported that they had purchased a firearm in the previous two years without a background check. Looking only at firearms purchased privately “including sales between individuals in person, online, or at gun shows,” about 50% were obtained without a background check, the survey found.
H.R. 8, passed by the House on March 11, seeks to extend the background check requirements to almost all gun transfers, including those between private parties. It would require firearms transfers between private parties to be handled by a licensed firearms dealer, who would take possession of the firearm while the background check is being conducted.
There are several exceptions to the policy, such as loans or gifts between family members and temporary transfers to people in situations of self-defense or at a shooting range.
Is H.R. 8 bipartisan?
Pushing back against the legislation, Rep. Richard Hudson, the House Republican conference secretary, said the bill was rushed to the House floor with “no meaningful input from Republicans.”
We don’t know whether Republicans had any input into drafting the bill, but at least three Republicans co-sponsored it. The name of the bill — the Bipartisan Background Checks Act of 2021 — might be a stretch, since the bill passed the House on March 11 by a vote of 227-203, mostly along partisan lines. But eight Republicans supported it, and one Democrat opposed it.
A similar bill passed the House in 2019 by a vote of 240-190. Eight Republicans voted for it then, too, and 188 against.
What effect would H.R. 8 have on mass shootings?
In a House Republican press conference on March 9, Hudson argued that the bill “would do nothing to have stopped a single mass shooting in this country.” He then went on to mention several mass shootings by name, including in Newtown, Connecticut; Charleston, South Carolina; Parkland, Florida; Sutherland Springs, Texas; and Las Vegas.
The bill may not have prevented any of the mass shootings Hudson mentioned, but there was one in 2019 that it might have stopped.
As NBC News reported, “The gunman who killed seven people and injured more than 20 in a shooting rampage around Odessa, Texas, purchased his weapon from a private seller, a transaction that does not require a background check, law enforcement officials told NBC News. Investigators are now looking into who sold the weapon to 36-year-old Seth Ator, who failed a gun background check in 2014 because, law enforcement officials told NBC News, he had a disqualifying mental health issue.”
Research published in January 2020 in Criminology & Public Policy concluded that comprehensive background checks “do not seem to be associated with the incidence of fatal mass shootings.” But handgun purchaser licensing laws and bans of large‐capacity magazines “were associated with significant reductions in the incidence of fatal mass shootings.”
Hudson also claimed H.R. 8 “fails to recognize the fact that every commercial gun sale in America requires a background check today.”
In fact, the bill does recognize that, and specifically states that it would establish “new background check requirements for firearm transfers between private parties.”
What effect would H.R. 8 have on gun violence?
“Background checks work,” Rep. Mike Thompson, who introduced the bill, said at a press conference after the bill passed on March 11. “Every day, in the licensed dealers where you have to get a background check, 170 felons are stopped from buying a gun, 50 domestic abusers every day are stopped from buying a gun. That’s through the existing background check program. It only makes sense if it’s expanded, you’ll stop even more felons, more domestic abusers.”
Several Democratic proponents called the bill a “life-saving gun violence prevention measure.” Rep. Sheila Jackson Lee, for example, said the bill “will make a monumental difference in lowering the amount of gun violence in America.” Rep. Robin Kelly said that “expanding background checks will help lessen gun violence and save lives.”
The research on the effectiveness of comprehensive background checks, however, doesn’t provide that kind of certainty. A RAND review of gun studies concluded that “available studies provide moderate evidence that dealer background checks may reduce firearm homicides and inconclusive evidence for the effect of private-seller background checks on firearm homicides.”
“That’s not to say it isn’t a reasonable thing to try,” Andrew Morral, a RAND senior behavioral scientist who led the project, told FactCheck.org.
Since there is “moderate” evidence that existing dealer background checks may reduce gun violence, Morral said, “it is quite logical to think that extending those checks to all sales or transfers would have a positive effect.”
Morral said it’s “an impossible standard to expect” that studies would be able to definitively answer whether expanding background checks to private sales would reduce gun violence, given that states with expanded background check laws have such varying policies. Specifically, some require gun purchasers to obtain a license, in addition to submitting to a background check.
In an article in Health Affairs in 2019, Garen J. Wintemute, who directs the University of California Davis Violence Prevention Research Program and the University of California Firearm Violence Research Center, wrote that while background checks “appear to reduce the risk of violence substantially among prohibited persons whose purchases are denied,” population-level studies of comprehensive background check policies “have often shown no clear evidence of benefit.”
The notable exception, Wintemute wrote, is that states that have “permit-to-purchase policies have consistently been associated with beneficial population-level effects.” Permit-to-purchase policies require citizens to apply to a state or local law enforcement agency (sometimes in person), pass a background test and in some states to take firearm safety training. In states with such laws, licensed and private sellers can only sell to people with permits.
Indeed, research published in September 2020 in the American Journal of Public Health concluded, “Purchaser licensing laws coupled with CBC [comprehensive background check] requirements were consistently associated with lower firearm homicide and suicide rates, but CBC laws alone were not.”
“There is not solid evidence that state laws designed similarly to H.R. 8 have saved lives, but there is a clear connection between the strength of background check laws and systems and lethal firearm violence,” Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, told us via email. “Most importantly, when those requirements are part of a firearm purchaser licensing system, we have found that the laws result in significant reductions in firearm homicides, suicides, and fatal mass shootings.”
Webster views comprehensive background checks as a necessary first step.
“The best way to view the evidence, in my opinion, is that requiring background checks for private transfers and having gun dealers be in charge of initiating background checks and vetting the purchase applications rather than public safety officials has not been sufficient to reduce firearm death rates, but closing the private-sale background check is necessary for any firearm restriction to result in reductions in firearm-related deaths,” Webster wrote in an email (emphasis is his). “High standards for purchasers and sufficient vetting of applications through licensing requirements for purchasers makes a huge difference.”
Would H.R. 8 reduce gun trafficking?
Webster noted, “There is good research evidence that gaps in the background check system for private transfers facilitates illegal gun transfers – gun trafficking, illegal straw purchases – and conversely that states that closed those gaps reduced illegal diversion of guns for criminal use.”
According to the Giffords Law Center, which advocates for gun-control laws, 22 states already require background checks on at least some private sales.
Sen. Chris Murphy pointed to 2016 research by the New York attorney general that found that 74% of “crime guns” (including 86% of handguns) recovered by law enforcement in New York originated out of state.
“We need a federal solution. Guns don’t respect state borders,” Murphy said at a press conference on March 11. “In New York state, 75% of the guns that are used in crimes in that state are bought outside of New York, in states with less strict gun laws, where criminals can buy a weapon without having to go through a background check.”
Webster also believes “we could see more benefit from a national system of comprehensive background checks” than a patchwork of state laws, citing gun trafficking studies.
“Gun trafficking studies show that states without comprehensive background checks export an incredible number of guns out of state for criminal use in states with the strongest background check systems,” he said. “So benefits would accrue to states that already require comprehensive background checks by making it more difficult to traffic guns across states lines.”
Would H.R. 8 confiscate guns?
Let’s also quickly dispatch with a comment from the House floor on March 10 by Republican Rep. Madison Cawthorn, who opposed the bills, saying, “You want my guns. I know it. We all know it. Well, Mr. Speaker, you can come and take them.”
There is nothing in either of the two bills passed by the House that calls for the confiscation of any guns or that prevents someone legally allowed to purchase a gun from doing so.
H.R. 1446: Enhanced Background Checks Act
H.R. 1446, the Enhanced Background Checks Act, was created to address what is called by some the “Charleston Loophole.”
Under current law, a licensed firearms dealer can transfer a weapon to a purchaser in what is called a “default proceed,” if the background check cannot be completed in three business days. Dylann Roof, a white supremacist, obtained the gun used to kill nine people gathered for Bible study at a historically Black church in Charleston, South Carolina, in 2015 via a default proceed.
(According to the Giffords Law Center, nine states have independently extended the default proceed beyond the federally mandated three business days. In Florida and Utah, background checks proceed indefinitely until completed.)
Then-FBI Director James Comey said in a statement in 2015 that a “mistake” in the process caused a delay that allowed Roof to buy the gun after waiting the required three business days. Comey said the NICS examiner didn’t see a police report showing Roof had previously admitted to possessing drugs, which would have disqualified him from getting the gun, because the wrong arresting agency was listed.
H.R. 1446 would increase the window to conduct a background check to a minimum of 10 business days. If the background check still remains incomplete after 10 days, the purchaser can submit a petition for a final determination. If another 10 days pass without a decision, the firearms can then be transferred to the prospective purchaser.
Would H.R. 1446 have prevented the Charleston shooting?
Although the bill was proposed specifically to close what has become known as the “Charleston Loophole,” there is partisan disagreement about whether the bill would actually have prevented that mass shooting.
“He should not have had the gun,” Democratic Rep. James Clyburn, who introduced the bill, said from the floor of the House on March 10. “And the reason he had the gun is because when he went to purchase it and the three days expired as current law allows, they had not been able to verify the information he had given them, and therefore [they] could not complete the background check. But under the law, they had to sell him the gun after the three days, only to find out several days later that the wrong information had been put into the record.”
“When they found the error, it was too late,” Clyburn said. “This law would have prevented that gentleman from getting a gun.”
“What happened in Charleston was terrible,” Republican Rep. Jim Jordan said in rebuttal. “It was wrong. Wrong as wrong can be. But this bill is not going to stop it. The FBI had two months. Didn’t do it, didn’t stop this guy. They had two months.”
It’s true that the FBI didn’t confirm that the sale shouldn’t have been allowed until after the shooting two months later.
But the facts surrounding Roof’s background check are bit complicated, and it is unclear whether the bill now before Congress would have stopped the sale. (Of course, even if it had, Roof could have purchased a gun through a private sale that does not require a background check.)
About a month before the shooting, Roof was arrested for possession of Suboxone, a prescription drug used to treat addiction to opioids. Although he was arrested and charged with misdemeanor drug possession, Roof’s admission to possessing the drug meant the FBI could have denied his gun application, since the law bars the sale of a gun to someone who is an “unlawful user of or addicted to any controlled substance.”
However, a clerk at the jail entered an incorrect jurisdiction for Roof’s arrest, which led to an FBI examiner being unable to find records of Roof’s arrest. According to the Associated Press, while that mistake was fixed at the jail within days, the state database wasn’t corrected.
In 2016, we wrote that Hillary Clinton was wrong to say the FBI needed “just one more day” to stop Roof from being able to purchase the handgun. There’s no telling, given the circumstances, whether 10 days would have made any difference.
Would H.R. 1446 prevent ineligible buyers from obtaining a gun?
Proponents of the bill say that it would stop gun purchases from a not insignificant number of other people who should not be allowed to buy a gun.
There is some data to back that up.
In 2018, there were about 4,000 guns transferred to people who should not have been allowed to obtain a gun, but did so because of the three-day limit for background checks, according to the FBI. That includes nearly 900 people addicted to drugs, another nearly 800 people convicted of a crime punishable by more than one year in jail or a misdemeanor punishable by more than two years, and another nearly 800 people convicted of domestic violence.
In May, the Department of Justice asked for more funding to keep up with a surge in gun purchases during the pandemic, as well as more funds to help federal officials retrieve guns from people not legally allowed to obtain guns, but who were able to get one anyway due to the three-day rule.
“The cases in which there is a delay are the very cases that ought to be carefully investigated,” Democratic Rep. Jerrold Nadler said from the House floor on March 10. “If NICS is unable to return an instant determination, and especially if there is no report after three days, there is cause for concern. There may be a good reason that these individuals should not own firearms, but the current system allows the transfer nonetheless.”
The FBI reported that in about 21% of the “default proceed” cases in 2008, the buyer was later determined to be a prohibited purchaser. In 2017, the FBI determined that the three-day “default proceed” policy resulted in the transfer of nearly 5,000 guns to people who should have been prohibited from obtaining them.
Opponents have argued that the proposed law would cause needless delays and could postpone background checks indefinitely.
In a House GOP press conference, Hudson argued the bill “creates delays for law-abiding citizens, could be indefinite to acquire a weapon.”
That’s misleading. In 2018, about 90% of background checks handled through the NICS system were completed in minutes.
In cases where there are incomplete criminal history records and the FBI needs to perform further investigation beyond the computer check, the bill would increase the amount of time that a licensed firearms dealer needs to wait to receive a complete background check from three business days to a minimum of 10 business days. (In 13 states, state officials conduct their own checks using the FBI’s NICS system.)
If, after 10 days, a background check remains incomplete, “then the prospective purchaser may submit a petition for a final firearms eligibility determination,” the bill states. “If an additional 10 days elapse without a final determination, then the federal firearms licensee may transfer the firearm to the prospective purchaser.”
“I don’t know why the other side keeps trying to misrepresent what we’re trying to do here,” Clyburn said. “All we’re saying is that at the end of three days, you ought to move to 10 days. And if the 10 days expire, you can ask for an expedited search. And if that expires, you still have 10 days. The maximum is 30 days. Nobody is keeping a gun away.”
Jordan countered that the problem is that the bill would shift the burden to the potential purchaser to “ask the government to exercise your constitutional right. That is not what the Second Amendment is supposed to be about.”
Jordan is right about the burden potentially shifting to the purchaser to petition the FBI to expedite the background check in those rare cases when checks take longer than 10 days. But if the citizen takes that step, Hudson is wrong to say the allotted time for a background check could be “indefinite.” After another 10 days, without a decision, a sale could proceed.
Schumer has promised there will be hearings on the bills before the Senate Judiciary Committee and that there will at least be a procedural vote on H.R. 8 to “see where everybody stands.” Either bill would need the support of at least 10 Republicans in the Senate to overcome a potential filibuster.
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