Why Efforts to Further Regulate Private Firearm Transactions at Gun Shows are Misguided as a Policy for Crime Reduction

Chairman Hinojosa, Vice-Chair Dunnam and members of the committee, thank you for the opportunity to testify concerning the merits of HB 367, HB 404 and HB 635 today. I am H. Sterling Burnett. I work for the National Center for Policy Analysis (NCPA), a non-partisan, non-profit research institute based in Dallas that promotes innovative private sector solutions to public policy problems. In my capacity as Senior Policy Analyst with the NCPA, I have recently completed a brief study which details the significant public policy problems with proposals to further regulate firearm sales at gun shows. I offer this study as a written supplement to my testimony here today. In my testimony today I will expand upon my research to reinforce my contention that regulating the exchange of firearms between private parties as proposed in the pending legislation would be a mistake.

As a general rule, I would argue that the legislature should answer several fundamental questions before enacting proposed legislation:

(1) Is the legislature authorized by the Federal and/or State Constitutions to address the issue in question?

(2) Would the proposed legislation be efficacious in solving the problem in question and, if so, is it the least costly, least intrusive policy option that would produce the desired results?

(3) Are there harms or costs which would stem from enacting this legislation and, if so, would the benefit created by the proposed law outweigh the harms that it imposes.

I humbly suggest that if the answer to any of these questions is no, then the legislation ought not to be enacted.

I have formulated no opinion concerning the constitutionality of the proposed gun show bills. Constitutional scholars and attorneys qualified to argue before the Supreme Courts would likely be better versed than I to answer such questions.

However, based on my research, I would argue that the answer to the second and third questions above would be an emphatic no! Thus, the bills proposed should not be enacted into law. HB 367, HB 404 and HB 635 are flawed both as general policy proposals and in each of their particulars. In this forum, I will only address flaws inherent to the regulation of private firearm transactions at gun shows in general, as I believe that even if problematic aspects in the particular formulation of each of the bills were "fixed," the general problems would remain making them unwise as a matter of policy and law.

To know whether the proposed bills would be efficacious in solving the problem in question, one must first determine what the problem in question is?

The most recent bete noir of gun control activists is the so-called gun show loophole. Gun control proponents claim that up to 70 percent of guns used in crimes come from gun shows. Handgun Control, Inc.(HCI) says "25-50 percent of the vendors at most gun shows are unlicensed dealers." Thus, they argue, conducting background checks on all buyers at gun shows – whether they purchase from licensed or "unlicensed dealers" – will deny children and criminals access to firearms.

This argument has some appeal to those seeking an easy fix to mass public shootings. But their arguments are wrong – mandating background checks at gun shows will not reduce crime significantly. Indeed, their proposed solutions could make crime problems worse. Rather than closing a loophole in current law, mandatory checks will be a step towards banning private firearms sales between individuals.

The National Instant Check System (NICS) took effect November 30, 1998, creating "a national database containing records of persons who are disqualified from receiving firearms." Under NICS, dealers must clear every firearms purchase through a background check of the prospective buyer by the FBI. The dealer calls NICS and provides an operator with:

(1) his Federal firearms license number and unique password;

(2) the potential buyer's name, date of birth, sex and race;

(3) and the type of gun to be transferred, handgun or long gun.

The operator checks the data against NICS's database of prohibited persons and either approves or delays the sale. A delay indicates that the check turned up information that requires further review by an analyst, who by law has up three business days to approve or deny the sale – longer than the duration of most gun shows, which last over a weekend.

A mid-1980s National Institute of Justice (NIJ) study of convicted felons in 12 state prisons found that criminals purchased firearms at gun shows so rarely that those purchases were not worth reporting as a separate category.

The evidence indicates that criminal demand for firearms did not shift to gun shows after the 1994 Brady Law mandated background checks for all gun purchases from licensed dealers.

An NIJ study released in December 1997 said only 2 percent of criminal guns came from gun shows.

A study of youthful offenders in Michigan, presented at a meeting of the American Society of Criminology, found that only 3 percent had acquired their last handgun at a gun show – and many of the purchases were made by "straw purchasers" (i.e., legal gun buyers illegally acting as surrogates for criminals).

A 1997 report by the U.S. Bureau of Justice Statistics on federal firearms offenders said only 1.7 percent of crime guns are acquired at gun shows [see the figure].

According to a report issued by the educational arm of Handgun Control, only two of 48 major city police chiefs said that gun show sales were an important problem in their city.
The claim that a quarter to half of the vendors at most gun shows are unlicensed dealers is true only if one counts vendors selling items other than guns (e.g., books, clothing, ammunition, knives, holsters and other accessories) as unlicensed dealers.

Federal law requires that any person "engaged in the business" of selling firearms possess a valid Federal Firearms License. This is true whether one is selling guns for a living at a gun store or at a gun show. Licensed dealers must conduct an NICS check prior to the transfer of any firearm – regardless of where that transfer occurs. The majority of sellers at gun shows are licensed dealers and do conduct checks.

Individuals who occasionally sell or trade guns from their personal collection need not be licensed nor are they required to conduct a NICS check prior to the sale – whether the sale occurs at a gun show, at their home or out of the trunk of their car. Congress never intended a person who wants to sell a spare hunting rifle to a friend, a father who wishes to give a .22 rifle to his son or a widow who wishes to dispose of her late husband's firearms through an Internet auction or an ad in the local paper to undertake a NICS background check.

Thus, the same laws apply to gun shows as to all other gun transactions – there is no loophole.

A General Accounting Office report, "Gun Control: Implementation of NICS," was issued on February 29, 2000. It documents many NICS failures. With a congressional allocation of more than $300 million since 1995:

Through September 1999, NICS had 360 unscheduled outages amounting to more than 215 hours of downtime, during which firearms retailers may have suffered millions of dollars in lost sales.

The system failed to provide instant checks 28 percent of the time, delaying sales for 1.2 million legal purchasers from hours to days.

Of the 81,000 sales denied by the FBI under NICS, nearly 14,000 people appealed, claiming that they were wrongly denied; of cases adjudicated at the time the report was issued, 2,710 denials had been overturned.

3,353 felons and others prohibited by law from purchasing firearms were allowed to buy guns over the counter after being mistakenly approved by NICS; but only 3.3 percent of these prohibited individuals were being investigated by the federal government for violating federal firearms laws by purchasing guns.
Since private individuals cannot obtain access to the NICS system, some proponents of gun show legislation have proposed allowing or requiring licensed dealers to conduct the checks for occasional sellers or private collectors at gun shows for a nominal fee. This would be like requiring individuals who wish to sell their used cars to conduct the sale through a used car dealer. It would take time away from the dealer's business and put him at risk of losing sales to a third party selling a substitute product at a better price.

Based on these facts, I submit that none of the proposed gun show bills would have any measurable impact in reducing violent crime.

These, however, are not the only problematic aspects with the NICS system that would make expanding it to cover private sales a dubious proposition at best. For instance, according to the GAO report NICS fails to provide routine security standards, stating: "Although NICS has been operational for 15 months, it has yet to be authorized as secure in accordance with Justice's own requirements, and attempts to do so have been delayed." Security testing still hasn't been conducted and GAO investigators note: "In light of the system vulnerabilities that were identified before the system went operational and the delays experienced to date in authorizing the system, the FBI continues to lack an adequate basis for knowing whether NICS assets (hardware, software, and data) are sufficiently secure and are not vulnerable to corruption and unauthorized access." The GAO's investigators conclude that: "Further delays in authorizing NICS will expose the system and the data it processes about individuals to unnecessary risk."

In addition, and perhaps most importantly, expanding the flawed NICS system to private sales at gun shows could actually cause an increase in the victimization of innocents – the very antithesis of the bills authors' intentions. Studies have shown that criminals fear armed citizens far more than police. Their fear is reasonable since up to 3,000 criminals are lawfully killed each year by armed civilians – more than three times the number killed by the police. An additional 9,000 to 17,000 are criminals are wounded by civilians each year. In addition, more than 15 studies have shown that citizens use guns in self-defense between 800,000 and 3.6 million times annually (in the vast majority of cases merely showing the firearm wards off the attack or prevents the crime). Award-winning criminologists Gary Kleck and Mark Gertz estimated that defensive gun uses (DGUs) totaled more than 2.5 million per year. Another study sponsored by the National Institute of Justice and carried out by the Police Foundation found an even greater number of DGUs – approximately 2.73 million a year. Either figure is far larger than the number of crimes committed with firearms each year. Thus, any legislation that discourages or mistakenly disallows legally permitted persons from lawfully purchasing a firearm in a timely manner could place them, and the general public at increased risk from violent crime.

It is likely that under the proposed bills, some law-abiding people will forgo buying firearms at gun shows simply because they do not trust the federal government to either to destroy the sales records of lawfully purchased firearms or to maintain the privacy and confidentiality of those who purchase guns. As shown above, these are legitimate concerns. In addition, each law-abiding citizen who is mistakenly delayed or rejected from purchasing a firearm is placed unnecessarily at risk from crime. In the past, this has had deadly results. For instance, in 1995 when Philip Coleman of Shreveport, Louisiana attempted to purchase a handgun for self-defense the sale was mistakenly rejected. Mr. Coleman appealed the decision, pointing out the error. Mr. Coleman was shot to death outside of his work while his application was still pending. Three days after his murder, the approval of Mr. Coleman's purchase arrived by fax.

Gun control advocates are seeking to close a nonexistent loophole. Logically, this will lead to calls for closing other nonexistent loopholes until all private firearms transfers – even those between family and friends – are under government regulation.

Tightening gun show requirements might make sense if NICS worked as it should and if background checks on private gun sales reduced violent crime, but there is no evidence that either is the case. Rather than expanding the flawed NICS to cover the small number of private sales at gun shows, money could be better spent fixing the NICS and prosecuting the felons who have already purchased guns illegally.