Mass Shootings

Does the Texas Shooting Show That 'Universal Background Checks' Are a Good Way to Prevent Mass Murder?

The policy is unenforceable and poorly tailored to the problem it is meant to address.

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Unlike most mass shooters, the man who killed seven people in Midland and Odessa, Texas, on Saturday seems to have been legally barred from owning firearms. The Associated Press, citing an unnamed "law enforcement official," reports that he tried to buy a gun from a federally licensed dealer in 2014 but was blocked because of a "mental health issue." He purchased the AR-15-style rifle that he used in the drive-by shootings in a private transaction that was not covered by the federal background check law.

The Midland/Odessa shootings, in other words, looks like a good example of how expanding the background-check requirement might stymie would-be mass murderers. But is it really? That partly depends on how much compliance can be expected with a law that requires background checks for all gun sales.

Last year, researchers who looked at what happened after Colorado, Delaware, and Washington imposed that requirement reported that "background check rates increased in Delaware, by 22%–34% depending on the type of firearm," but "no overall changes were observed in Washington and Colorado." It is hard to see how the federal government can do any better, since it does not know who owns which guns and cannot possibly monitor unrecorded transfers.

The lack of compliance does not necessarily reflect a sinister desire to assist mass murderers, or even a nonchalant attitude toward violent crimes that might be committed by gun buyers. By and large, I suspect, it reflects a widespread sentiment among gun owners that they should be able to dispose of their own property without going to the trouble and expense of arranging transactions through government-licensed dealers. But whatever the motivation, the general unwillingness to jump through those hoops represents a serious and probably insurmountable problem for people who imagine that "universal background checks" will prevent mass shootings even in the small minority of cases where the perpetrator has a disqualifying criminal or psychiatric record.

To the extent that expanding the background-check requirement actually results in more background checks, as appears to have happened in Delaware, that is by no means an unalloyed good. Even the American Civil Liberties Union, which maintains that the Second Amendment does not protect an individual right to arms, recognizes that "the categories of people that federal law currently prohibits from possessing or purchasing a gun are overbroad, not reasonably related to the state's interest in public safety, and raise significant equal protection and due process concerns."

While we don't know specifically what "mental health issue" legally barred the Texas shooter from owning guns, it need not have involved any perceived threat to other people. Under federal law, anyone who has ever undergone involuntary psychiatric treatment, whatever the reason, is forever stripped of his Second Amendment rights. That policy affects a lot of people who have never shown any violent tendencies.

In 2014, for instance, the U.S. Court of Appeals for the 6th Circuit decided a case involving Clifford Tyler, a 73-year-old resident of Hillsdale County, Michigan, who tried to buy a gun in 2011 but was turned away after failing the background check. Tyler learned that he had permanently lost his Second Amendment rights because he had been forced to undergo psychiatric treatment in 1985 after an emotionally devastating divorce. His daughters were concerned that he might be suicidal, and a court ruled that he posed a threat to himself.

Since then, according to Tyler, he had not experienced any more bouts of depression. A psychologist who evaluated Tyler in 2012 found no evidence of mental illness and concluded that the 1985 incident "appeared to be a brief reactive depressive episode in response to his wife divorcing him." Yet under 18 USC 922(g)(4), that one incident barred him from owning a gun, even a quarter-century after his psychological crisis.

In District of Columbia v. Heller, the landmark 2008 case in which the Supreme Court recognized that the Second Amendment protects an individual right to arms, it said "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." But the provision that stopped Tyler from buying a gun goes further than that, the 6th Circuit noted in its ruling, since "the class of individuals constituting those ever previously mentally institutionalized is not identical to the class of individuals presently mentally ill." Because the proscribed category is overbroad, the appeals court said, it is not "narrowly tailored" to serve a "compelling interest," as required under strict scrutiny. The court concluded that "Tyler's complaint validly states a claim for a violation of the Second Amendment."

The Supreme Court in Heller also mentioned the federal ban on gun possession by people with felony records as an example of longstanding, presumptively constitutional restrictions. Yet that proscribed category is also clearly overbroad. If someone was convicted of growing marijuana, for example, what does that tell us about his violent tendencies at the time, let alone decades later? Likewise with the bans on gun ownership by unauthorized U.S. residents and illegal drug users, including cannabis consumers in states where marijuana is legal. Unlike someone who was convicted of a violent crime, these people have not done anything that suggests they might use a gun to hurt others.

Fans of background checks frequently cite blocked sales as evidence that the policy is working. Yet if those disqualified buyers mainly fall into nonviolent categories, the fact that they were unable to exercise their Second Amendment rights by purchasing firearms is a bug, not a feature. The threat generally posed by people who are not legally allowed to own guns can be divined by the way they are usually viewed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

If the FBI cannot complete a background check on a gun buyer within three days, the dealer is allowed to complete the sale, so the ATF, a law enforcement agency that is part of the Justice Department, is sometimes tasked with seizing guns after the fact. A 2004 report from the Justice Department's inspector general noted that there were often delays in retrieving weapons from prohibited buyers, partly because "ATF special agents did not consider most of the prohibited persons who had obtained guns to be dangerous and therefore did not consider it a priority to retrieve the firearm promptly." If these people were not actually dangerous, one might reasonably wonder, why were they barred from owning guns in the first place?

In short, there are three major problems with background checks as a way of preventing mass shootings: The vast majority of mass shooters do not have disqualifying psychiatric or criminal records; those that do can easily evade background checks, even when they are notionally required, through private sales; and the people whose purchases are actually blocked are for the most part harmless. As a general solution to gun violence, of which mass shootings represent only a tiny share, background checks are even less effective, since ordinary criminals are highly motivated to obtain the tools of their trade and can do so through straw buyers or by taking advantage of the black market.

That does not mean background checks never prevent homicides. They might work against impulsive people with violent intent and disqualifying records who simply give up after unsuccessfully trying to buy a gun from a licensed dealer. But such would-be gun buyers are probably pretty rare, and the current system casts a very wide net, sacrificing the constitutional rights of many innocent people, in order to catch them.

NEXT: Walmart's Ammo Sales Decision Doesn't Violate the Second Amendment. But the Government Ordering Them To Stop Selling Ammo Would.

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  1. The fight against universal background checks, which are supported by 80 or 90 percent of Americans, is one of the reasons gun absolutists are going to be swamped and stunned by the predictable backlash against gun nuttery.

    Carry on, clingers. So far as your betters permit, anyway.

    1. dude 80-90% of Americans don’t agree on the benefits of oxygen.

    2. Kirkland: “Pay no attention to the jar full of gall bladders behind the curtain.”

    3. 80 to 90 percent of Americans don’t realize FFLs are already required to conduct background checks for every sale

      1. Yup. And nothing’s going to stop private parties from selling guns to each other as long as there is no broad registration for guns. So it’s a damn good thing that there is no national gun registration and most states don’t even try.

    4. universal background checks, which are supported by 80 or 90 percent of Americans

      What question was asked to get those nunmbers? Would people have answered differently if the actual nature of the “loophole” were explained? The exception to background checks is for private sales between non-FFL holders. There is no “gun show loophole”. And there is no effective way to enforce a universal background check law in such circumstances.

      1. @Zeb wrote: “What question was asked to get those numbers? Would people have answered differently if the actual nature of the ‘loophole’ were explained?”

        If you look at the questions asked in these “unbiased” polls you will note that they are worded in a manner which “suggests” there are no ‘background checks’ being performed currently.

        EXAMPLES:

        “Do you support or oppose requiring background checks for all gun buyers?”
        –Quinnipiac University

        “Do you favor or oppose a federal law requiring background checks on all potential gun buyers?”
        –CBS News

        “Do you favor or oppose a federal law requiring background checks on all potential gun buyers?”
        –New York Times

    5. Your use of the word “absolutist” in your gun control rants is one of the best examples of projection that I’ve ever seen.

    6. “gun nuttery”???….Sounds like it would be a good name for a candy bar for the Deplorables in flyover country, right Rev.?

    7. Actually, the “nuttery” is among those who think more laws (that are not enforced) will achieve any more that the current laws (which are not enforced).
      The killer in this case was denied purchase of a firearm based on a NICS check that revealed his adjudication by a court of law as mentally probhibited from owning a firearm. To run a NICS check, the purchaser must fill out an ATF Form 4473 and present identification. The form gathers sufficient information for an instant check and a gives warning that falsifying data or applying to purchase a gun when prohibited, is a felony. In effect, if a prohibited person fills out a 4473, it serves as a confession of a felony. Together with the ID, this is more than enough information to arrest, try, convict and sentence the criminal to up to 10 years in prison.

      The problem is that of the roughly 70,000 NICS denials each year (which the FBI states is 99.5% accurate), fewer than 100 are typically prosecuted. These are criminals, convicted felons, mental defectives who have been adjudicated ineligible to buy a gun. So why aren’t we locking them up??

      Had the Texas killer been prosecuted, he might be serving the last 5 years of his sentence right now – never having had the chance to carry out mass murder.

      Until the current laws are enforced – no new gun laws.

    8. When “universal background checks” have come up for a vote, they barely got 60% in Washington state, 50.4% in NV, and 48.2% in Maine.

      Hardly the 80-90% claimed everywhere.

    9. If 80 to 90 percent of Americans really supported universal background checks, as the polls seem to indicate, it would already be law. Then why isn’t it?

      When universal background checks was passed in Washington State, it only garnered 59% of the vote. When it was passed in Nevada, it was by a slim majority. When it failed in Maine, it failed by a slim majority.

      Why didn’t all these bills pass with even just 80% of the vote, if that’s what the public wants?

      The problem is in the details. If you were to ask someone “Do you want universal background checks to stop murderers and suicidal people from getting guns?” 90% will tell the pollster “Heck yeah! Who wants murderers and suicidal people getting guns?” But if you were to ask someone “Do you want to make it a misdemeanor for a hunter to loan his guns without a background check to a friend for a hunting trip, and a felony for that friend to return the gun without a background check? Do you want to make it a misdemeanor for a suicidal person to temporarily transfer all his guns to his friend without a background check while he was dealing with his depression, and a felony for his friend to return them when he’s feeling better? Do you want it to be a misdemeanor for a wife to be left alone with the husband’s guns because he went on a business trip for more than two weeks, because after two weeks, it becomes a transfer without a background check? Do you want it to be a misdemeanor for a father to give his son a rifle without a background check that he had received from his father?”

      For a most people, the answer is “No” to each question, yet these are all things that become law under typical universal background checks bills. And this only scratches the surface — there are about a dozen more scenarios that normal Americans would find distasteful about actual universal background check proposals and laws.

  2. Not a complete picture, but one illustration of the futility of “universal” background checks, is CA. CA has had such laws for almost thirty years. Statistically speaking, there seems to be no evidence at all that it had any impact on the homicide rate. Even without delving deep into the statistics, CA’s homicide rate, in comparison with the national rate, has been, year-to-year, pretty much the same as it always has – right near the middle of the pack. One could argue that it “must” have prevented a murder or two, but one cannot “prove” even that.

    1. Seems equally likely that it must have prevented some people from defending themselves effectively.

      1. That goes without saying.

      2. +1,000!

    2. More… the $10 million Obozo-era study conducted by the CDC concluded that at no time, in any location has any sort of gun control ever resulted in a detectable difference.

      If they could have pointed at even ONE example of a gun law that worked – they would have. But the best they could say was that if there was a difference, it was too small to measure.

      1. Which seems to bolster then notion that Kleck was pretty accurate, way back there in the 90’s.

      2. A useful “quick reference” for some of Kleck’s work:
        ” Guns and Violence: A Summary of the Field”

        Gary Kleck
        School of Criminology and Criminal Justice
        Florida State University
        Tallahassee, Florida 32312

        https://www.firearmsandliberty.com/kleck.pointblank.sum.html

  3. In essence, much of the current NICS is useless as far as keeping weapons out of the hands of criminals and would be miscreants. But is serves to make people “feel better” as a means of furthering “common sense and reasonable” gun “safety” measures. Sure, close the specious “gun show loophole” and just make it necessary for Uncle Joe and nephew Bill to go through and FFL to sell and buy a hunting rifle. Criminals already but their guns through a black market and don’t give a fuck how hard it may be for law abiding persons to stay law abiding. Just don’t look to hard at the details and you can feel all better about having “done something.”

    1. Background checks was a compromise to supposedly placate the gun grabbers.

      As usual, apologizing and giving them anything is a mistake. They want all guns gone, so any compromise is stupid and only benefits their position.

      Its incremental loss of rights 101

      1. beat me to it

      2. Yeah, I remember the whole debate that swirled around the Brady Bill. Some people argued “just give them instant background check; if we don’t we’ll be tarred as extremists and lose everything”.

        Of course we’re still tarred as extremists, and the gun control crowd never rests in their quest to ban guns. The ink wasn’t dry on the Brady Bill before Democrats vowed to bring a “Brady 2” before the Congress; only the electoral debacle of 1994 stopped them.

        1. And they still state we don’t want to compromise (when they really mean capitulate, just to a lesser degree then they want is to).

        2. It was supposed to be instant, a minor inconvenience at most, etc.

          BUT, as soon as the NICS system came online and interim Brady provisions were replaced with the permanent provisions, the gun control groups wanted the 5 day wait not only retained, but applied to all transfers.

          Between passage and NICS system online, the federal provisions only applied to handguns and required a 5 day wait while local law enforcement performed a background check. Shotguns/rifles were not covered.
          Remember this anytime someone uses that 1994 study to claim that 40% of firearms are transferred without background checks.

          Also, many of the states with serious gun crime problems already had their background check system, and buyers were not subject to the 5 day wait.

          Basically, residents of states like NH, VT, ID, UT, etc. with very low homicide rates were now forced to have background checks due to the behavior of a small number of people in shittier states.

    2. My problem with all the “loophole” talk is that it’s pretty obvious what is happening with many of our liberties: they get restricted but only partially as a compromise, then 10 years later the wailing begins about the “loophole” that was actually a compromise.

      1. I come to your house and demand 100 dollars. We compromise and you give me 50.

        The next day I come back and demand 50 dollars. We compromise and you give me 25.

        The next I’m back demanding 25 dollars. We compromise and you give me 15

        Finally, I demand the last 10 dollars, and since it’s such a small amount, especially compared to what you’ve already given me, there is no room for compromise and you give me your last 10 dollars.

        1. Kevin:
          Illustrated Guide to Gun Control
          https://i.imgur.com/TO8BGgw.png

    3. And yet, NICS does reveal ~70,000 attempts each year by prohibited persons to buy guns. EACH of those attempts is a felony. And yet the number of people prosecuted for those felonies is typically less than 100.

      Can you imagine a cop only ticketing 1 in 700 speeders? Arresting only 1 in 700 of ANY kind of law-breaker? Why such massive incompetence when it comes to NICS check violations? The prosecutions would be incredibly easy – with the Form 4473 essentially serving as a signed confession!

      Putting tens of thousands of convicted felons who attempt to buy guns BACK in prison for 10 years each? Why don’t they do it?

      1. In some ways that’s a good thing, though: how many people are like Tyler mentioned above, who aren’t even aware that they are prohibited persons until they have a background check made? Some made plea bargains having no idea they were giving up a fundamental right. Some were involuntarily committed, and had no idea that this was going to permanently bar them. So should we be putting these people in jail?

        The law is ridiculous!

        And for all the problems California has when it comes to gun rights, there’s one thing they ironically get right: if you are involuntarily committed, but after five years you show no problem, your rights are restored.

      2. BambiB wrote: “And yet, NICS does reveal ~70,000 attempts each year by prohibited persons to buy guns. EACH of those attempts is a felony. And yet the number of people prosecuted for those felonies is typically less than 100.”

        ‘And to your point…regarding the lack of prosecutions on lying on Form 4473s, we simply don’t have the time or manpower to prosecute everybody who lies on a form…’
        –VPOTUS and “shotgun expert” Joe “Two Blasts” Biden

        ‘Nothing we’re going to do is going to fundamentally alter or eliminate the possibility of another mass shooting…’
        –Joseph Robinette ‘Joe’ Biden Jr

  4. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    All gun control is unconstitutional and therefore illegal, including but not limited to background checks.

  5. If these people were not actually dangerous, one might reasonably wonder, why were they barred from owning guns in the first place?

    Because that’s now how this game works. The importance is the existence of the law, and the encompassing enforcement authority. If we decide at a moments notice that you ARE dangerous, then the full weight of the ATF can be brought down upon you at a moment’s notice. If America isn’t constantly looking over its shoulder, we’re not doing government right.

    1. I would add that if you’re dangerous — whether it be because you’re mentally ill, or just plain violent — you probably shouldn’t be free. If you’re free, it’s too easy to get things — rope, gasoline and matches, cars, knives, even guns — that you can use to kill people.

      For this reason, I support a simple standard: if you’re free, you should be able to get a gun. If you’re committed or in prison, you shouldn’t have access to *anything* that could be used to harm other people.

      And while I don’t want to make it so easy to commit people to the point that it’s easy to commit political dissidents, we can do better than “he’s not a danger to self and others until he actually hurts and/or kills self or others” as well. This won’t necessarily prevent mass murder, because it seems that most mass murderers are committed by people who are on the boundaries of insanity and functionality — but it will at least help.

  6. Wait. I thought the latest Texas shooting spree was caused by a traffic stop.
    Shouldn’t we be banning traffic stops?

  7. “Does the Texas Shooting Show That ‘Universal Background Checks’ Are a Good Way to Prevent Mass Murder?”

    No.
    Violent criminals who shoot people won’t bother with something as trivial (to them) as a background check.

  8. 95% of school/mass shooting perps were on psychiatric meds. The Black Box warnings on these meds state “homicidal ideation and suicide”. It’s not rocket science to figure out the cause, but the media isn’t going to bite the hand that feeds them, i.e., Big Pharma, so we’ll just keep blaming guns.

  9. So, let me see if I understand this. Requiring picture ID to vote or enter the country is racist but requiring it to buy a gun is not?

    1. When you realize that the Ku Klux Klan still runs the Democratic Party, it makes perfect sense that they want the modern version of literacy tests (Form 4473) and poll taxes (background check fees) for buying guns.

  10. Given the dense concentration of crime in this country, it would probably save far more lives if the ATF simply assigned 5 more agents to enforce felon-in-possession laws only against people with 3 or more violent felonies in Chicago, Baltimore, New Orleans, and St Louis.

    1. Be fair, now; for balance include NYC and LA.

  11. My problem with articles like this that they want to set a different standard for gun laws than for laws in general. We all accept that laws will be not be followed in every case and yet we still have laws. If we required background checks for all firearm purchases, public and private, most people would comply. The person looking to hurt someone with a gun might still be able to get that gun but it would be harder and take longer. Mr. Sullum noted that some of these are impulsive acts. Now if you can slow someone down, delay them getting that gun you maybe able to allow that impulse to pass. They may get over the problem and rethink their planned actions. This may be only the small chance but facing the problem we have I believe it is worth the inconvenience.

    I do agree with Mr. Sullum that a lifetime ban for people with nonviolent felonies and those who have had in patient mental heath treatment is wrong. Once they have served their sentence or shown no mental health problem they should be allowed to have firearms.

  12. They show the inadequacy of people’s ability to spot signs of others’ real motives and intentions. This extends to supposed experts on human behavior and psychology, whose theories will always engender behaviors that counter them.

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