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Editorial Advisory Board: No easy fix on background checks for gun owners

As there should be, there is a lot of uproar over the two recent mass shootings and it seems like for the first time in a long time change may be in the air. Not landed but in the air. One thing being discussed in both state and federal legislatures is the requirement that the buyers of all guns be subjected to a background check. Currently, federal law requires only that the buyer of a gun from a gun dealer holding a federal firearms license be subjected to such a check. This is significant because there are two markets for guns: the primary market, guns sold thru Federal Firearms License (FFL) licensees, and the secondary market, in which non-FFL licensees transfer their guns to other non-dealers. This secondary market has yet to require a background check in order to transfer a firearm.

To be clear, there are some exceptions to every rule because states can create rules for their citizens that are stricter than the federal requirements. Maryland is such a state when it comes to handguns, which are considered regulated firearms. Maryland requires that every handgun purchase within the state go through a FFL licensee who is required to submit the purchaser to two background checks, a federal National Instant Criminal Background Check System (NICS) check, which is the same check that would be made if the buyer was buying a shotgun or a rifle through the dealer, and a Maryland State Police (MSP) background check. As well, the buyer and seller of a handgun are required to give the MSP seven days to conduct the check, at the end of which time the MSP will either disallow the purchase or not disallow the purchase, which is a green light to transfer the firearm.

These checks are intended to discover whether the would-be purchaser is a prohibited person under 18 USC Section 922(g), which lists nine circumstances that would disqualify a buyer (or someone from possession) of a firearm. For example, prohibited people include those convicted in any court of a crime punishable by imprisonment for a term exceeding one year (it matters not whether the person was not sentenced to jail for a year, but was instead put on probation); a person who has been adjudicated as a mental defective (statutory term) or who has (ever) been committed to a mental institution; and the user of a controlled substance, such as a person who possesses a medical cannabis card issued by a state.

The recent buzz, in the wake of the latest shootings, is to verify through a background check that guns transferred between non-FFL dealers — neighbors, for example — are not transferred to people who do not pass the background check. Maryland, in the last legislative season, saw introduced a bill that would require those people who buy rifles and shotguns on the secondary market to undergo background checks, thereby requiring that the transfer occur through a FFL who can run the check. The concept is interesting and probably won’t hurt. But surely prohibited people who possess guns will transfer those guns to other prohibited persons. After all, they are already breaking the law.

Another problem with all of this is that the background checks are only as good as the data in the NICS database, and many states have failed to provide “quality” — meaning complete — contributions to the database. And while the federal government can provide inducements for compliance to the states if it wants to, it can’t require state compliance. To top that defect in NICS, however, even the armed forces have not been contributing the identities of those service personnel who were discharged under dishonorable conditions, who are prohibited persons under Section 922(g)(6). There were thousands of these people who escaped NICS. One, a dishonorably discharged airman, passed a NICS check a couple of years back and then killed many people in a church in Texas with a rifle he bought through a FFL who conducted a NICS check that came back clear. Dylann Roof, the Charleston church shooter, performed his despicably cowardly deeds with a Glock .45, purchased after he passed a NICS background check even though a prior arrest, if it had been recorded in NICS, would have kicked out the purchase. And, there is the Capital Gazette shooter, who legally bought a shotgun through a FFL licensee after passing a background check because there was nothing that should have been entered as required by law that would have made him a prohibited person.

How to keep people safe from gun violence needs discussion. And there may not be any quick fixes, so we need to be wary of those legislators who go after the low-hanging fruit and then declare a victory for safety. This false sense they will create may be worse than the current situation, which needs study by the professionals and the allocation of funds by the federal government so that the professionals, such as the Centers for Disease Control and Prevention, can dive into the issues and come up with real solutions. The result may be that guns will be harder to get, but the Second Amendment stalwarts need not fear that gun rights will disappear because there are approximately 500 million guns in the United States and the Supreme Court, in D.C. vs. Heller, has held that gun ownership is an individual right.

Editorial Advisory Board members Nancy Forster and Vanessa Vescio did not take part in this editorial.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka King

Stephen Meehan

William Michaels

Angela W. Russell

Debra G. Schubert

Mark Stichel

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.