Proponents of increased gun regulation have in recent years advocated for changes intended to close “loopholes” through which people who presumably shouldn’t be able to acquire guns can acquire them legally. They speak of the gun show loophole and the lack of background checks for private transfers, and the buzzy catchphrase of the moment is universal background checks. Presumably, legislation effecting such would mandate that any firearms transfer be cleared through the current instant background check system or an equivalent.

Some background. Currently, anyone who wishes to buy a firearm nowadays has two options: One – he can buy from a licensed dealer. Two – he can buy from another individual. In both cases, the buyer is obligated to comply with federal, state and local laws, the latter two of which vary across states and dictate not only what sorts of firearms may be purchased, but the circumstances under which they can be purchased and the rules and circumstances under which they can be carried – exposed or concealed.

In the former case (purchased from a licensed dealer), the buyer must complete paperwork mandated by the Bureau of Alcohol, Tobacco and Firearms (ATF Form 4473) and be cleared for the purchase via the FBI’s National Instant Criminal Background Check System (NICS). The latter requires a phone call or a query conducted over the Internet, is conducted by the licensed dealer, and is required by law to be erased from the system the next business day. The former, Form 4473, is kept on file by the dealer, who must produce the information thereon should the FBI ask about the disposition of a particular gun.

In the latter case, (purchased from another individual), there is no federal mandate for paperwork or background check, nor is there one in 40 states. The buyer and seller both, however, face criminal liability if the buyer is not permitted under the law to purchase a firearm (e.g. has a felony criminal record, is in a jurisdiction that doesn’t permit said firearm, etc.). This lack of a background check mandate is dubbed the private sale loophole.

A subset of the latter case is dubbed the gun show loophole. This term was in broad use for a while, usually in a misleading fashion. Ask your average citizen what the gun show loophole is and you’re likely to hear that it’s about anyone being able to buy guns at a gun show without background checks. In reality, licensed dealers are not exempt from doing background checks and having buyers complete 4473s at a gun show, and every gun show I’ve ever been to only allows licensed dealers to rent tables and sell. In fact, I’ve always seen signs prohibiting private sales in the gun shows themselves, often with threat of prosecution. None of this prevents two individuals who happen to cross paths at a gun show from engaging in a private transaction at a later date or in a different location, of course, which is why I call this loophole a subset of the private sale loophole.

Universal background checks seem like a reasonable idea. Implementation may take one of several forms, including a mandate that all transfers be conducted via a licensed dealer or a system by which a private individual can call into the NICS. However, for any such system to be effective, the government would have to know who owns every gun in the nation. Otherwise, someone could simply state “I got this before the universal background check mandate.” This universal registration is never spoken of by those favoring more gun control except in vehement denial.

For good reason.

Universal registration is one of the great fears of pro-gun folks. Throughout history, universal registration preceded universal confiscation, and not just in places like pre-Nazi Germany (the Weimar Republic mandated universal registration in the 1920s, the Nazis in 1933 used that registration to collect all guns in civilian hands), the Soviet Union, Red China or Cambodia. The United Kingdom in 1968 started registering all firearms. In the late 1980s, the government banned semi-automatic rifles, and they knew where to find them all. In the 90s, they banned hand guns, and also knew where to find them all (other than those owned illegally, of course – criminals aren’t law-abiding citizens). Confiscation is a real concern among gun rights advocates, and no amount of dismissive handwaving or promises from politicians (President Obama in 2008 “I believe in the Second Amendment. I believe in people’s lawful right to bear arms. I will not take your shotgun away. I will not take your rifle away. I won’t take your handgun away”) will assuage those concerns. Why? Because many anti-gunners DO want to take guns away from civilians, and politicians’ promises are generally worthless. Registration can safely be expected to lead to confiscation. It may happen piecemeal, it may happen over decades, but history makes it quite clear that the probability of it happening is high.

Political strategists know of this concern, and know that it is a major motivator come voting time. This is why they avoid any mention of registration and disavow, vehemently, suggestions that they want it. Even in blue states, places where gun control is popular, registration efforts have gone poorly. Connecticut passed a law requiring that all “assault weapons” (a vague term used to refer to military-style rifles with certain features) be registered. Compliance is estimated at about about 50,000 of 375,000 assault weapons in the state. New York’s similar SAFE act is estimated to have an even lower compliance rate of about 5%.

I’d expect that there’s a good number of people who either oppose universal registration or believe the government won’t enact it who nevertheless think that universal background checks are a good idea. The problem is, the latter is impossible to implement fully without the former. There are, by some estimates, 300 million guns in existence in the United States today. Many have been in existence for decades and have changed hands many times, and many are not registered in any database. If a universal background check system were instituted today, how would it be enforced for these guns? What’s to prevent an owner from selling or giving a gun to someone without going through the instant background check system? If someone uses a gun in a crime and he acquired that gun from another person, how would it be determined if he acquired that gun before or after the implementation of universal background checks unless that gun was registered? Obviously, it could not.

Any legislation that mandates something like a universal background check will likely include language authorizing one or more agencies to implement and enforce that legislation. Some of that language will authorize the establishment of rules and regulations appropriate to and necessary for implementation and enforcement. If ATF is mandated to enforce universal background checks, and if the only way to do so is to establish a universal registry of firearms, then that’s what ATF will do. Every licensed dealer of firearms is required to maintain a record of every sale that takes place. While, by current law, ATF is prohibited from collecting this information to establish a registry, new universal background check legislation could very well be used to circumvent or supersede current law, and ATF would be obligated to create that registry.

Universal registration will inevitably lead to confiscation. Maybe not next year. Maybe not for years. Probably not all at once. But, there will come a day when some incident involving a particular weapon will be used in claims that such weapons have no place in civilian life, and all those currently registered will be banned and confiscated. After that, another class of guns will be taken, then another. The biggest roadblock to that now is the government’s lack of knowledge regarding who has what.

Would confiscation be a bad thing? Some don’t think so, and point to other nations as examples where strict gun laws have correlated with low gun crime. I stress correlated because there are disagreements as to causality. But, leave that for another day – it is sufficient to note that those examples are of limited value because America’s association with guns is unique. The number of firearms confiscated in Australia (via a buy-back program) numbered in the mid hundreds of thousands, and may have reached a million, and the numbers in the UK appear to be much smaller. In contrast, there are 300 million guns in America. Confiscation would be a fool’s errand in the US. I already noted the problems with compliance in NY and CT – imagine the degree of compliance in states with much stronger pro-gun attitudes. In short, the government is not going to have much success in any effort to collect and confiscate guns in this country.

What the government would achieve is to turn tens of millions of non-compliant but otherwise law-abiding citizens into felons. It’s not hard to imagine the government finding ways to establish probable cause for searching someone’s home by, for example, cross-checking lists of hunting licenses against registration lists. If someone ever purchased a big-game license, but has no big-bore rifles listed under his name in the national registry, the government might feel justified knocking on his door or executing a search warrant.

Is this paranoia? Today, perhaps. But, 30 years ago, it would have been deemed paranoia to believe that the government was recording every single telephone conversation and electronic communication and filtering them all in a search for metadata, and Big Data’s only going to get bigger and more intrusive.

Rights are nibbled away, bit by bit, over time. Those who take those rights know that a right once taken is very difficult to get back. They also know that people can get used to almost anything, and while each infringement may be met with protests, eventually those protests die away as the infringement becomes part of the new normal. A national gun ownership registry is a bell that cannot be un-rung, especially with today’s technology where data is forever.

Universal background checks would not have even affected many of the mass shootings. The Sandy Hook shooter, stole all his guns from his mother, who he then killed. The Charleston church shooter, passed an instant background check that he should not have passed. The Aurora Colorado shooter purchased his guns legally from licensed dealers, presumably clearing background checks. So did the Fort Hood shooter. So did the D.C Navy Yard shooter. So did the Santa Monica shooter, who had to jump the additional hurdles (state background check, waiting periods) that California imposes. So did the Umpqua Community College shooter. Universal background checks would not have stopped these people. Nor are they likely to stop those who might contemplate such atrocities in the future. Mass shootings typically involve a lot of forethought and a lot of planning, and a determined psychopath will not be deterred that easily. As to the broader issue of gun crime in general, the vast majority of guns used in crime are obtained illegally.

What is the answer to these mass shootings? I don’t know if there is one, at least not one that will prevent them from ever happening again. There are conversations to be had, but unfortunately the ones that ARE being had focus on the wrong areas, like taking away everyone else’s rights because one madman committed a horrible act. The Left demands more gun restrictions on everyone. The Right seems ready to broaden the boundaries of what’s considered mental illness. Some have pointed out, correctly, that a large fraction of these shootings have occurred in “gun-free zones.” Others have pointed out, correctly, that there have been numerous instances where a would-be mass shooter was stopped by an armed citizen. There’s no easy answer.

What is easy, however, is to understand that the cost of “sensible” gun control to society and to liberty is large, with dubious-to-non-existent benefit. It’s also easy to understand that the latest version of “sensible” gun control, universal background checks, is a Trojan Horse for universal registration, something that should scare the pants off any lover of liberty.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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