An Outside-the-Box background check:
Here’s how Coburn’s plan would work: A gun buyer would log in to a free federal web portal and enter some personal information. If the buyer passes the background check, he or she would get a multi-digit key code, good for 30 days, to print out and take to a seller. That seller would use the same portal to confirm the authenticity of the background check.
The self-service system, the Oklahoma Republican said, would bypass the cost and record-keeping requirements required by the current proposal, which requires the involvement of a federally licensed firearm dealer for sales at gun shows and over the Internet. It’s unclear how much it would cost to create a public-facing portal, but Congress has already authorized more than $1.2 billion to improve the system available to law enforcement and licensed dealers.
I like it because it can be done anywhere with an internet connection, and it doesn’t care what’s being transferred or why. I don’t like it because it fails in the locked position meaning the .gov can take the site down for “Maintenance” and essentially shut all the doors for as long as they want, or use a bad server that will crash if, say more than 100 people use the system at a time. We already saw a smaller scale version of this last black Friday, and its no good!
I still think the easiest way to do this is to add an endorsement on a driver’s license or State ID that is essentially a “Go”, or “No Go” as far as NICS is concerned, or simply allow people to show their carry permit. Since becoming a prohibited person requires adjudication by a court of law, part of the ruling is surrendering permits and getting IDs changed.
Still the big take-away from this is the anti-rights advocate’s reactions:
“It’s unworkable,” said Ladd Everitt of the Coalition to Stop Gun Violence, “and there would be no incentive for any private seller to do a background check under the legislation.”
Another problem for gun control advocates: There would be no lasting record of the sale.
“When there’s a crime committed, a police agency can go to a manufacturer and ask, ‘Hey, where did this gun go?'” said Mark Kelly, who founded Americans for Responsible Solutions with his wife, former Rep. Gabby Giffords. The manufacturer can point to a federally licensed dealer, who would have a paper record of the sale, “and then they can help them solve some crimes,” Kelly said.
Well except that such a system would add teeth to the existing federal law making it a crime to knowingly transfer to a prohibited person. Its a tough law to enforce because the system in inaccessible to people without an FFL. By allowing anybody with a computer or smart phone to access the NICS system, and to do it for free makes it hard for somebody to unknowingly sell to a felon.
(BTW I also like allowing people access to NICS because it will show some of the model citizens of today that some of their youthful mistakes are removing their rights. There are so many felons I could care less about on a safety standpoint, and there are people who might have one moderate infraction 20-30 years ago, and a clean record since who I think have proven to be trustworthy.)
Of course Mark Kelly is making a point that is already bogus. There are several states, as well as nations that have complete registries of firearms and firearm owners…and those registries are NEVER used to solve crimes. At best these registries are used to tack on additional charges for illegal possession, but I’ve never read of a crime solved because of registry data, nor do the anti-rights people show any such stats. The one statistic that DOES exist for registry is allowing door-to-door confiscation.
And we all know that’s their end-goal anyway, they could care less about background checks.
How would we know if this person lied when entering information into the portal? For example, I know my mom’s name and SSN and can get my hands on anything else. How would the seller know that the approval was made for Mama Palette and not Erin?
Erin — read my long post for a better solution. In answer to your question — Because the photo ID you present wouldn’t have your pretty face on it.
But you bring up a huge point failure source.
The weak point of ANY background check scheme is ensuring that the person being checked is being checked under their actual identity. So, even a “pre-clearance” system would have to include point-of-transaction presentation of a secure, valid ID that matches a unique identifier on the printed out pre-clearance form, AND point-of-transaction validation the pre-clearance form is actually valid. At that point, why bother with pre-clearance?
Setting up a system whereby a person submits just the unique identifier code on their government issued photo ID (passports, military IDs, and most if not all state DLs all use unique ID codes that are not SSNs these days), and that number is checked against a blacklist of prohibited persons and yields either a “Clear”, “Flagged”, or “System Down” response has the advantage of not adding a “Gun Nut!” code on their ID. It also has the advantage that by and large, the “prohibited persons” list nearly completely subsumes the “registered sex offenders” list, making it a cheap (if slightly less thorough) replacement for people looking to hire a babysitter but cannot afford a full background investigation. Nonresident aliens who (for whatever reason) may be authorized a DL or other government issued ID can be flagged as “Flagged”, thus establishing the system as a quickie E-Verify program for employment – because by and large the same people who are “prohibited persons” by virtue of immigration status are generally not eligible to work.
For people who may be flagged in one category but not others, the person so flagged can apply for an ID that provides specific clearance for one activity or another, and it’s unique ID code merely returns a value meaning “Valid”, “Invalid”, or “System Down”. Think “green cards” that you can validate. In other words, exactly like you can validate an FFL today.
Basically the call would consist of calling an 800 number (online option would be nice, too), indicating the issuing authority (federal, or which state and/or territory), and entering the ID.
There are some readily resolvable issues to make it work:
1. The law must state that, in the case of a “System Down” response, you have to recheck within “X” period over “Y” days, and if the system is still down, the check is presumed to be “Clear” with regards to the liability on the part of the seller/employer. The person running the check would have to log the time and date of the “System Down” responses so they could establish that they did, in fact, happen to run the checks when the system was down.
2. In order to get someone on “failure to check” or “willfully or neglectfully failing to check”, the government would have to be able to prove that the system was running 100% availability, that the person was flagged in the system, and that the person in question was correctly identified as being prohibited from the specific activity in question. Note, this doesn’t require the government to log the responses — only to establish that if someone had attempted to call at the times the seller/employer claims they tried, they would have found out the person being checked was flagged. So the government has to be able to document that the database was accurate in regards to that person and that the system was working correctly. Should a case actually get to the point of arrest. indictment, or court, the government would be liable for double legal expenses, lost business/wages, etc., for expenses incurred by the accused seller/employer after they presented their (ultimately validated) list of check attempts.
3. “System Down” would have to include cases where call volume was too high to process all calls.
(NOTE — 2 & 3 eliminates the “We’ll take the system down and block gun buyers that way!” method of backdoor gun prohibition or immigration amnesty. Crappy, unreliable system? Too bad — gun sales/new hires automatically go through after a brief period, and you cannot convict the seller/employer of anything. Provides a serious incentive for government to get it right, even if they don’t want to. (Last part of #2 creates a HUGE incentive not to engage in “lawfare” by rushing to court with weak-ass cases in order to bankrupt sellers/employers.)
4. Government must be prevented from logging individual checks (both the caller ID and the ID# being checked) for anything other than “Flagged” responses, although they should be required to log aggregate numbers of checks and responses for QC purposes.
5. “Flagged” responses should be logged and mandate a follow up contact by the government, to figure if a flagged person actually broke the law in attempting prohibited conduct. Even if the government chooses not to bother charging the person, that person still gets notification they were checked. (This: A. Pushes enforcement of existing laws against prohibited persons, unlike the current Brady Bill fiasco; B. Notifies people that there is a problem with their ID in the database, so they can follow through and find out in case of a database error and get said error corrected, and C. invalidates any future claim of innocence on the part of a seller/employer who gets a “Flagged” response, but keeps trying the same ID check until he hits – or is told about- a “System Down” period.)
6. ID security and validation must be ensured. The best ID check system in the world is worthless if the IDs are easily faked. If your state doesn’t meet federal standards of ID security, well, a land border crossing card (Passport Card) costs $55 if you’ve never held a passport of any sort ($30 for renewals), it’s good for ten years, and it COMES with an RFID shielding sleeve for the security wary. (Sidenote — this does mean any ID acceptable for instant check should be mandated as ID acceptable for all ordinary government ID purposes, anywhere in US territory. Yes, it does mean a de facto “national ID” scheme, even if it includes every state and territory issuing their own IDs and DLs under a national standard of security. Tough shit, people — it’s the 21st Century, and unless you’re a hermit, shut in, or hobo, you can’t get by without a government ID anyway. Having an ID schema that minimizes forgery and fraud is not a demonic violation of your sovereign rights — if you want to live totally off the grid, be my guest. Just don’t expect to vote, cash checks, hold a legal job, travel internationally, drive on public roads, etc., either. For things that require verification of identity or legal status, you gotta have an ID. It’s not “The Mark of the Beast”, honest — it’s a population of over 300,000,000 highly mobile people with an international range instant banking system versus “no instant long distance banking system and everyone knows everyone else in the county”.)
7. Any ID scheme must have a “free” option for low income persons. (Exactly like they have now, only right now the IDs aren’t necessary any better at verifying identity than bringing a random stranger who claims to be your neighbor in would be.)
Or we just don’t require a stupid background check at all because it’s a waste of time and money. I prefer a system where if you’re not in jail you can own whatever you want.
Unfortunately the world isn’t ready for that yet. Still the world isn’t ready to note that the guy who gets turned away at the local gun shop doesn’t get turned away from Home Depot when he buys an axe, a machete, and a 36″ chainsaw, even when his address is in the heart of the city on the 5th floor of an apartment building.
“So we have two estimates of the false positive rate: 94.2% or 99.98%. The first estimate is obviously too low, it assumes that all the cases identified up to that point are accurate. The second estimate is obviously too high, it only counts as prohibited individuals those who have been proven so beyond a reasonable doubt in a court of law. These numbers are just one of the reason that no study by criminologists or economists has found that the Federal Brady Law has reduced national crime rates.”
What would you say about a medical test that has a 94% false positive rate?
You’d say it was useless.
Just like background checks are.
One of the reasons for the huge false positive rate is the way the system is currently configured, if your name is similar to someone on the blacklist, you’re flagged as well.
Databases with shitty index keys produce shitty results — that’s a tautology.
Now, when the legal system is changed so that people actually serve their sentence, that sentences accurately reflect danger to society, and we eliminate classifying people with prior felony convictions as “prohibited persons” because the only ones we are worried about are by definition still in prison, and we can go with the “Welp, if you’re out of jail, you’re automatically legal.” (Which, frankly, I would prefer.)
On the other hand, so long as we have “prohibited persons” who are freely walking around, we are not going to get rid of background checks, at least on FFL purchases. Any system that fixes the background check database for FFL purchases can be applied to other background checks.
In the end, I would only willingly accept “universal” background checks if:
A. The system is fixed so that the false positive and false negative results are reduced to statistically insignificant levels.
B. That the system secures individual privacy for everyone involved, other than prohibited persons who try to buy a gun.
C. That aggregate numbers are publicly released on a regular and timely fashion so the people can see how well the system is working (including prosecution rates).
D. That people who do make a good faith attempt to use the system before selling a gun have an absolute affirmative defense to selling a gun to a prohibited person.
E. That the system is convenient for people to use without special equipment.
F. That the system is free for end users (after all, the check system is NOT for the benefit of the buyer or seller, but for the public at large).
G. (Last but certainly not least) That is is passed as part of an actual compromise — that is, gun owners get something at least as big in exchange. I’m thinking universal reciprocity and striking 922(o) is about equivalent.
It’s not just a black friday thing. NICS has been down plenty…. As recent as 3 weeks ago NICS was down hard most of the day.
Irony had it that I was transferring a SBR that had been with ATF for 16 months. They approve it, and then NICS wont take a call so I can put it in the hands of the very patient owner….
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Agree with you. Nice post.
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